Boyce v Minister for Immigration

[2017] FCCA 16

FEDERAL CIRCUIT COURT OF AUSTRALIA

BOYCE v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 16

Catchwords:
MIGRATION – Permanent resident partner visa – review of Migration Review Tribunal (“Tribunal”) decision.

ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that the Tribunal believed that it did not need to consider the application of cl.801.221(6)(c) of the Migration Regulations 1994 if the applicant was not in a de facto relationship with his sponsor at the time of its decision on the review, considered whether the applicant and his sponsor were de facto partners at times other than at the time of decision and failed to notify the applicant that his relationship status at times other than the time of decision would be relevant to the decision.

Legislation:

Migration Act 1958, ss.5CB, 360, 474

Migration Regulations 1994, regs.1.09A, 1.23, cl.801.221 of sch.2

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Pokharel v Minister for Immigration & Border Protection [2016] FCAFC 34
Sharma v Minister for Immigration & Border Protection [2016] FCCA 1011

Applicant: PETER RODNEY BOYCE

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 2080 of 2014

Judgment of: Judge Cameron

Hearing date: 22 December 2016

Date of Last Submission: 22 December 2016

Delivered at: Sydney

Delivered on: 1 February 2017

REPRESENTATION

Solicitors for the Applicant: Mr N. Dobbie of Dobbie & Devine Immigration

Counsel for the First Respondent: Mr M.P. Cleary

Solicitors for the Respondents: Mills Oakley

ORDERS

1. A writ of certiorari issue bringing into this Court to be quashed the decision of the second respondent dated 25 June 2014.

2. A writ of mandamus issue directing the second respondent to determine according to law the applicant’s application made to it on 11 September 2013.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2080 of 2014

PETER RODNEY BOYCE

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant, Mr Boyce, is a citizen of the United Kingdom who arrived in Australia on 26 March 2009 as the holder of a tourist visa. On 14 June 2011 Mr Boyce applied for a combined Partner (Temporary) (Class UK) subclass 820 and Partner (Residence) (Class BS) subclass 801 visa. Mr Boyce’s application was sponsored by his de facto partner, Ms Janice Hammond, who is an Australian permanent resident. On 4 September 2013 a delegate of the first respondent (“Minister”) refused Mr Boyce’s application for a subclass 801 visa on the basis that he did not satisfy cl.801.221 of sch.2 to the Migration Regulations 1994 (“Regulations”) because by the time the delegate made her decision he had ceased being Ms Hammond’s de facto partner. Mr Boyce then applied to the second respondent (“Tribunal”) for a review of the delegate’s decision. He was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.

2. In these judicial review proceedings the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

3. For the reasons which follow, the Tribunal’s decision will be set aside and the matter remitted to the Tribunal to be determined according to law.

Relevant legislation

1. An applicant for a partner visa is required to satisfy a two stage process: he or she must first be granted a provisional visa, being a Partner (Temporary) (Class UK) subclass 820 visa, in order to be considered for the grant of a permanent visa, being a Partner (Residence) (Class BS) subclass 801 visa.  Mr Boyce was granted a subclass 820 visa on 17 February 2012.

2. The criteria for the grant of a subclass 801 visa are found in pt.801 of sch.2 to the Regulations. One of the criteria which Mr Boyce had to satisfy at the time a decision was made on his application was cl.801.221. At all relevant times cl.801.221 relevantly provided:

   (1)The applicant meets the requirements of subclause (2), (2A), (3), (4), (5), (6) or (8).

   (2)    An applicant meets the requirements of this subclause if:

   (a)the applicant is the holder of a Subclass 820 visa; and

   (b)the applicant continues to be sponsored for the grant of the Subclass 820 (Partner) visa by:

   (i)     the sponsoring partner; or

   (ii)    the Australian citizen, Australian permanent resident or eligible New Zealand citizen who sponsored the applicant for that visa; and

   (c)the applicant is the spouse or de facto partner of the sponsoring partner; and

   (d)subject to subclauses (6A) and (7), at least 2 years have passed since the application was made.

   …

   (6)    An applicant meets the requirements of this subclause if:

   (a)the applicant is the holder of a Subclass 820 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)     either or both of the following circumstances applies:

   (i)     either or both of the following:

   (A)the applicant;

   (B)a dependent child of the sponsoring partner or of the applicant or of both of them;

   has suffered family violence committed by the sponsoring partner;

   …

3. The term “de facto partner” is defined in s.5CB of the Act which provides:

   5CB  De facto partner

   De facto partners

   (1)For the purposes of this Act, a person is the de facto partner of another person (whether of the same sex or a different sex) if, under subsection (2), the person is in a de facto relationship with the other person.

   De facto relationship

   (2)For the purposes of subsection (1), a person is in a de facto relationship with another person if they are not in a married relationship (for the purposes of section 5F) with each other but:

   (a)they have a mutual commitment to a shared life to the exclusion of all others; and

   (b)the relationship between them is genuine and continuing; and

   (c)     they:

   (i)     live together; or

   (ii)    do not live separately and apart on a permanent basis; and

   (d)    they are not related by family ….

   (3)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 may make different provision in relation to the determination for different purposes whether one or more of those conditions exist.

   …

4. Regulation 1.09A sets out the matters a decision-maker must consider when determining whether the conditions for a de facto relationship set out in s.5CB are met. At all relevant times reg.1.09A provided:

   1.09A    De facto partner and de facto relationship

   (1)For subsection 5CB(3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5CB(2)(a), (b), (c) and (d) of the Act exist.

   (2)    If the Minister is considering an application for:

   ….

   (c)     a Partner (Residence) (Class BS) visa; or

   (d)    a Partner (Temporary) (Class UK) visa;

   the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).

   (3)    The matters for subregulation (2) are:

   (a)    the financial aspects of the relationship, including:

   (i)     any joint ownership of real estate or other major assets; and

   (ii)    any joint liabilities; and

   (iii)   the extent of any pooling of financial resources, especially in relation to major financial commitments; and

   (iv)   whether one person in the relationship owes any legal obligation in respect of the other; and

   (v)     the basis of any sharing of day‑to‑day household expenses; and

   (b)    the nature of the household, including:

   (i)     any joint responsibility for the care and support of children; and

   (ii)    the living arrangements of the persons; and

   (iii)   any sharing of the responsibility for housework; and

   (c)     the social aspects of the relationship, including:

   (i)     whether the persons represent themselves to other people as being in a de facto relationship with each other; and

   (ii)    the opinion of the persons’ friends and acquaintances about the nature of the relationship; and

   (iii)   any basis on which the persons plan and undertake joint social activities; and

   (d)the nature of the persons’ commitment to each other, including:

   (i)     the duration of the relationship; and

   (ii)    the length of time during which the persons have lived together; and

   (iii)   the degree of companionship and emotional support that the persons draw from each other; and

   (iv)   whether the persons see the relationship as a long-term one.

   …

Background facts

Visa application

1. In his application form Mr Boyce stated that he met Ms Hammond on 20 January 2010.  He stated that they commenced their relationship seven weeks after they met and committed to a long-term de facto relationship on 23 March 2010.  Ms Hammond repeated those details in her sponsorship form. 

2. In support of his application Mr Boyce provided a joint statement made by him and Ms Hammond on 6 June 2011 in which they stated:

   a)they first met on 26 January 2010 when Mr Boyce moved into Ms Hammond’s home as a tenant.  After seven weeks, in March 2010, they decided to commit to a permanent relationship;

   b)on 23 March 2010 Mr Boyce took a planned trip to Spain where he remained for three months working on a home he owned there.  During his absence Mr Boyce contributed to Ms Hammond’s household expenditure, including paying her mortgage, and they communicated by text message daily and through Skype on a regular basis;

   c)Mr Boyce obtained work in Spain and returned to Australia with $10,000.  On his return he continued to make contributions to Ms Hammond’s household expenses.  He also repaid a $4,000 debt Ms Hammond owed to her daughter;

   d)in February 2011 Mr Boyce sold his property in Spain and transferred the proceeds of the sale into Ms Hammond’s account.  The funds were eventually placed in a joint account owned by Mr Boyce and Ms Hammond;

   e)in June 2011 Mr Boyce paid for Ms Hammond to take a trip to the United Kingdom to visit her family.  They had also taken a trip to Bali together;

   f)Ms Hammond owned her own business but they intended to establish a tea rooms and gift shop business together in the future.  They also hoped to eventually take out a mortgage in both their names;

   g)they shared domestic duties and had a number of mutual social interests.  They became engaged on 1 April 2011 and planned to marry early in 2012; and

   h)they enjoyed spending time with Ms Hammond’s grandchildren.  Ms Hammond also shared a “special bond” with Mr Boyce’s son and her daughter had recently leased a house owned by Mr Boyce’s daughter.

3. The following documents were also provided in support of Mr Boyce’s application:

   a)Ms Hammond’s individual and business tax returns from 2006 to 2010.  Her tax return for the year ending June 2010 identified Mr Boyce as her “spouse”;

   b)an application for a United Kingdom pension made by Mr Boyce on 8 December 2010.  In the part of the form which asked Mr Boyce to provide details of his relationship, he only referred to his former wife and made no reference to Ms Hammond;

   c)various bank statements showing deposits from Mr Boyce into Ms Hammond’s account;

   d)a copy of Mr Boyce’s will dated 4 June 2011 in which he described Ms Hammond as “my friend Janice Marie Hammond”.  He bequeathed to Ms Hammond his domestic and household contents for the term of her natural life, and following her death, to his two children equally;

   e)a copy of Ms Hammond’s will dated 4 June 2011.  In it she described Mr Boyce as “my friend Peter Rodney Boyce” and bequeathed to him use of her residential property for the term of his natural life.  She provided that after her death her property was to be sold and the proceeds split into two portions, the first to be equally divided between her two daughters and the second to be equally divided between her two daughters and Mr Boyce’s son and daughter; and

   f)statutory declarations from two friends, a letter from one of Ms Hammond’s daughters and a letter from Mr Boyce’s son attesting to the genuineness of Mr Boyce’s relationship with Ms Hammond.

4. On 17 February 2012 Mr Boyce was granted a subclass 820 visa and was advised that he was eligible to be considered for the grant of a subclass 801 visa.  Mr Boyce was advised that the Minister’s department (“Department”) would contact him concerning any outstanding information when considering whether to grant him a subclass 801 visa.

5. On 19 July 2013 the delegate wrote to Mr Boyce in relation to his subclass 801 visa application relevantly saying:

   I … refer to the telephone conversation which I had with you on 15 July 2013 where you asked [sic] if you were still in a relationship with your sponsor.  You stated that you were not and would request your new migration agent to contact me.  To-date I have not heard from you or your migration agent.

   Opportunity to provide comments on information provided to the department

   The Department has received information that you and your sponsor are not in a genuine and continuing spousal relationship.  Before a decision is made on your Subclass 801 application, you have the opportunity to provide a response to the information that your relationship has broken down.  You may also provide additional information to support the continued processing of your application on other grounds that may be available to you.

   …

   You should respond to this letter within 28 days of when you are deemed to have received it.

6. The letter was posted and emailed to Mr Boyce.  On 23 August 2013 the delegate wrote again to Mr Boyce by email noting that he had not responded to the 19 July 2013 letter.  The delegate advised Mr Boyce that if he did not provide a response she would make a decision on his subclass 801 application within seven days.

7. As noted earlier, the delegate refused Mr Boyce a subclass 801 visa on 4 September 2013. In her decision the delegate noted that on 17 June 2013 the Department received information that Mr Boyce and Ms Hammond were not in a genuine and continuing spousal relationship and that Mr Boyce had confirmed the breakdown of his relationship in a telephone conversation on 15 July 2013. The delegate further noted that Mr Boyce had failed to respond to her 19 July 2013 letter and her 23 August 2013 email. In those circumstances, she was not satisfied that he remained the de facto partner of his sponsoring partner. The delegate was also unable to find that there were any circumstances which justified Mr Boyce being granted a visa despite the breakdown of his relationship. The delegate concluded that Mr Boyce did not meet the requirements of cl.801.221 and therefore did not meet the criteria for the grant of a subclass 801 visa.

Tribunal proceedings

1. On 10 September 2013 Mr Boyce sought a Tribunal review of the delegate’s decision.  In a written submission to the Tribunal dated 29 May 2014 Mr Boyce’s migration agent submitted that:

   a)Mr Boyce had suffered domestic violence in the form of financial abuse at the hands of Ms Hammond;

   b)Mr Boyce had arrived in Australia in 2009 at the invitation of his daughter who had planned to sponsor him for a contributory parent visa, which would have required Mr Boyce to pay about $50,000.  Mr Boyce had the money to pay for the parent visa but after he commenced his relationship with Ms Hammond the latter encouraged him to apply for a partner visa instead;

   c)Mr Boyce’s contribution during his relationship with Ms Hammond amounted to about $60,000 in a twelve-month period and at the end of the relationship he was left with no money;

   d)Mr Boyce had not reported his situation to the Department earlier because he had not thought that he had suffered family violence.  It was only after reviewing a statement made by a friend in support of his review application, in which the friend stated that Ms Hammond had bragged about spending his money, that he had the courage to admit that he had been financially abused; and

   e)Mr Boyce had made arrangements to receive counselling.  The financial abuse he had suffered had had a severe mental and emotional impact on him.

2. On 3 June 2014 Mr Boyce’s migration agent provided to the Tribunal thirty references attesting to Mr Boyce’s good character.  The migration agent also provided a “Statutory declaration for family violence claim” form dated 31 May 2014 in which Mr Boyce claimed that:

   a)he had lost most of his savings during the global financial crisis and when he arrived in Australia he was left with only his property in Spain which he sold in February 2011 for $40,000;

   b)in April 2010, soon after the commencement of their relationship, he transferred $4,827 into Ms Hammond’s account.  Between April and September 2011 he also transferred $49,000 and between April 2011 and March 2012 he spent about $10,000 in cash on household expenses;

   c)he obtained a job in Australia and was expected to work seven days a week to support Ms Hammond and her family.  He was made to feel guilty and selfish when he questioned their spending;

   d)after Ms Hammond had used the bulk of his money, he ceased to be of use to her.  Their relationship ceased in April 2012 but they continued living together until September or October 2012 so that he could continue to provide financial support to her; and

   e)his trust had been betrayed and he had been abused financially.  Since the end of his relationship he had experienced anxiety attacks, low self-esteem and loneliness.  He had also lost contact and closeness with his children.

3. On 4 June 2014 Mr Boyce appeared before the Tribunal to give evidence.  The Tribunal also took evidence from two of Mr Boyce’s friends, Cheryl Wells and Diane Caine.

4. Following the Tribunal hearing, on 18 June 2014 Mr Boyce’s migration agent provided the following further information:

   a)bank statements for Mr Boyce and Ms Hammond’s joint account dated from March 2011 to March 2012.  In a covering email Mr Boyce’s migration agent submitted that about 70% of the debits from the joint account were transfers to Ms Hammond’s personal account while most of the credits came from Mr Boyce’s clients.  The migration agent submitted that Mr Boyce did not know how to use internet banking and had not performed a single transaction on the account.  It was further submitted that there were frequent transfers to a credit card and since Mr Boyce did not own any credit cards in Australia, it had to be assumed the transfers were to Ms Hammond’s personal credit card;

   b)a statutory declaration dated 13 June 2014 made by a social worker who interviewed Mr Boyce.  The social worker opined that Mr Boyce had suffered a form of intimate partner abuse in the form of financial or economic abuse.  He declared that the abuse had diminished Mr Boyce’s self-esteem, confidence in relationships and trust and that he suffered from anxiety attacks, flashbacks and recurrent rumination; and

   c)a statutory declaration dated 17 June 2014 made by a psychologist consulted by Mr Boyce.  The psychologist noted the history of Mr Boyce’s relationship with Ms Hammond as provided by Mr Boyce and opined that Mr Boyce suffered psychological symptoms as a result of being subject to family violence by Ms Hammond;

The Tribunal’s decision and reasons

1. The Tribunal considered the evidence Mr Boyce had provided in support of his claim to have been in a relationship with Ms Hammond.  However, for the following reasons it was not satisfied that there was a genuine and continuing de facto relationship in existence between Mr Boyce and Ms Hammond:

   a)the Tribunal found that Mr Boyce was not a credible or truthful witness.  In that regard it noted that after his relationship broke down in April 2012, Mr Boyce failed to notify the Department for over a year.  It also noted that at its hearing Mr Boyce initially claimed that during the course of their relationship he had never travelled outside Australia without Ms Hammond.  It noted that Mr Boyce quickly changed his evidence when it advised him that it had a copy of his travel movement records and said that he had gone to Bali by himself to take a break from work.  The Tribunal found Mr Boyce’s quick change of evidence when told of the movement records indicative of deliberate untruthfulness rather than mere forgetfulness;

   b)the Tribunal did not accept that Mr Boyce’s de facto relationship commenced on 23 March 2010 as he claimed.  It noted that that date was the same date on which he travelled to Spain for three months without Ms Hammond and that she did not visit him while he was there.  It noted that although he claimed that they had kept in touch through Skype he had not provided any evidence of their communication.  While it accepted that Mr Boyce had transferred significant amounts of money to Ms Hammond during the period of their claimed relationship, the Tribunal did not accept that those transfers had been made on the basis of a genuine and continuing de facto relationship;

   c)the Tribunal noted that Mr Boyce had been a self-employed builder and was employed as a handyman.  It therefore found it difficult to accept his claims that he had not looked at the joint account he held with Ms Hammond and had no knowledge of why she had been transferring significant amounts of money from the joint account into her own account;

   d)the Tribunal noted that Mr Boyce had provided no evidence to support his claim that he and Ms Hammond had intended to start a tea room business together.  It also noted that he had not provided any photographs of their holiday in Bali or their local sightseeing trips, claiming that he had been distraught and had not kept them.  It further found that Ms Hammond’s independent travel to the United Kingdom and Mr Boyce’s independent travel to Bali were not indicative of a genuine de facto relationship;

   e)the Tribunal noted that while Mr Boyce claimed that he had not sought counselling when his relationship broke down because his trust in Ms Hammond had been destroyed, he also claimed to have continued living with her and financially supporting her for a further five or six months after their relationship broke down;

   f)the Tribunal found that Mr Boyce had never declared his relationship with Ms Hammond to any official authorities.  In that regard it noted that he stated that he had not declared the relationship to the tax office and that his December 2010 application for a United Kingdom pension indicated that he had not notified the United Kingdom Department for Works and Pensions of the relationship;

   g)the Tribunal found that Mr Boyce and Ms Hammond’s wills did not support Mr Boyce’s claim that they had been in a genuine and continuing de facto relationship.  It noted that they both referred to each other as “friend” in their wills and it did not accept Mr Boyce’s explanation that they had done so on the advice of the person who prepared the wills;

   h)the Tribunal noted that Mr Boyce’s friend, Ms Caine, provided evidence that Ms Hammond had bragged that she had been using Mr Boyce for his money.  It noted that Ms Caine also said that both Ms Hammond and Mr Boyce had advised her of their engagement but she failed to mention the engagement celebration Mr Boyce claimed had taken place.  As a result the Tribunal was concerned that her evidence was not genuine;

   i)the Tribunal noted that another of Mr Boyce’s friends, Mrs Wells, claimed that she knew Mr Boyce from a Muffin Break store he visited and that he had told her that he had loved Ms Hammond but had realised she did not share his feelings after his money diminished.  The Tribunal noted that Mrs Wells did not claim to have been a mutual friend of Mr Boyce and Ms Hammond and it did not give weight to her evidence as it appeared based on claims made to her by Mr Boyce, who the Tribunal had found to be untruthful in his claims; and

   j)the Tribunal noted that Mr Boyce claimed that his daughter had ended her relationship with him over his refusal to apply for a parent visa and so it found that there was no recognition by Mr Boyce’s daughter of his claimed de facto relationship.

1. Having made the above findings, the Tribunal concluded that at the time of its decision Mr Boyce did not meet the requirements of s.5CB(2), and therefore did not meet cl.801.221(2)(c). It went on to note that the day before its hearing Mr Boyce had submitted a “Statutory declaration for family violence claim” form claiming that he was the victim of financial abuse amounting to family violence.

2. As the Tribunal was not satisfied that Mr Boyce was Ms Hammond’s spouse as required by cl.801.221(2), it found that he did not meet cl.801.221(6)(b) and decided not to consider his family violence claims.

Proceedings in this Court

1. In his amended application Mr Boyce alleged:

   1.The Tribunal misinterpreted the applicable law and or failed to ask the question required by law.

   Particulars:

   (A)The Tribunal misinterpreted the applicable law and or failed to ask the question required by law:

   (i)     The Tribunal considered that the issue before it was whether the Applicant was

   at the time of decision, the de facto partner of the sponsoring partner: cl 801.221. [7]

   (a)    The Applicant raised a claim of family violence, for the purposes of subclause 801.221 (6) of the Migration Regulations 1994 (‘the regulations’).

   (b)    The Tribunal committed jurisdictional error by not asking whether the Applicant suffered the claimed family violence during his relationship with his then sponsor.

   (c)     The Tribunal also committed jurisdictional error by misinterpreting the applicable law.  This is evident by its conclusion that it did not need to consider the Applicant’s family violence claim on the basis that it found that the Applicant was not the de facto partner of his then sponsor at the time of its decision, when subclause 801.221(6)(b) is predicated on the relationship between the Applicant and his then sponsor having ceased.

   2.[Not pressed]

Submissions

1. Mr Boyce submitted that the Tribunal had:

   a)erroneously failed to consider his claim of family violence under cl.801.221(6)(c) because it mistakenly considered that once it had found that he and Ms Hammond were not de facto partners at the time it made its decision, and so did not satisfy, relevantly, cl.801.221(2)(c), it did not need to consider the family violence claim;

   b)reconsidered whether he and Ms Hammond had been in a de facto relationship at the time he applied for a partner visa and also at the time his subclass 820 visa had been granted, notwithstanding that the decision to grant him such a visa was a privative clause decision which, at least as far as the Tribunal was concerned, had finally and conclusively decided those questions; and

   c)failed to put him on notice (pursuant to s.360 of the Act) that one of the issues determinative of his review would be whether he and Ms Hammond had ever been in a de facto relationship or at least had been in such a relationship at all times material to the visa application and review process.

2. The Minister submitted that:

   a)the Tribunal should be understood to have been saying in para.36 of its reasons (summarised above at [21]) not just (expressly) that Mr Boyce did not meet cl.801.221(6)(b) because he was not Ms Hammond’s spouse [recte: de facto partner] at the time of its decision but also (implicitly) because he never had been;

   b)the Tribunal did not err by considering whether a de facto relationship between Mr Boyce and Ms Hammond had ever existed;

   c)Mr Boyce could not have met the requirements of cl.801.221(6)(b) because, as he was not in a de facto relationship at the time of the Tribunal decision, he did not satisfy, relevantly, cl.801.221(2);

   d)the operation of the family violence exception in cl.801.221(6)(c) was predicated, relevantly, on there having been a de facto relationship which had ceased and that, as the Tribunal was not satisfied that such a relationship had ever existed, it did not need to consider the operation of that exception (citing Pokharel v Minister for Immigration & Border Protection [2016] FCAFC 34); and

   e)whether Mr Boyce had ever been in a de facto relationship with Ms Hammond had been a matter in issue before the delegate who refused his subclass 801 visa application and so it was not an issue which the Tribunal had to bring to Mr Boyce’s attention pursuant to s.360 of the Act.

Factual findings

1. In para.33 of its reasons the Tribunal said:

   Due to the concerns outlined, the Tribunal is not satisfied that there was a genuine and continuing de facto relationship in existence between the applicant and sponsor.  In making this finding, the Tribunal has considered the Department’s 2012 assessment that the applicant was the spouse of the sponsor and entitled to a temporary visa as such.

2. I find that the Tribunal concluded in para.33 of its decision that Mr Boyce and Ms Hammond had never been in a de facto relationship at any time relevant to the visa applications. I consider that such a conclusion is the natural one to draw from the Tribunal’s discussion of the evidence preceding the findings at para.33, which is summarised above at [19]. Further, in the second sentence of para.33, the Tribunal stated that in concluding that Mr Boyce and Ms Hammond had never been in a de facto relationship at any time material to the visa applications it had considered the Department’s 2012 assessment that they had been. I infer that the Tribunal sought by that statement to make it clear that it had reached a conclusion on Mr Boyce and Ms Hammond’s relationship different from the one made in 2012 in connection with the subclass 820 visa grant.

3. I also find that the Tribunal reasoned that because Mr Boyce and Ms Hammond were not in a de facto relationship at the time of its decision, Mr Boyce could not satisfy cl.801.221(6)(b) and so cl.801.221(6)(c) could not be engaged, with the consequence that it did not need to consider the claim of family violence.

4. Further, I find that whether Mr Boyce and Ms Hammond had been in a de facto relationship at material times prior to the decision on the subclass 801 visa application was not a matter in issue before the delegate who decided on 4 September 2013 to refuse that application.  The Minister referred to the statement in the delegate’s decision record that:

   The Department received unfavourable information on 17 June 2013 that you and your sponsor were not in a genuine and continuing spousal relationship

   and submitted that it indicated that the existence of a de facto relationship at a time prior to the decision on the subclass 801 visa had been a matter in issue before the delegate.  However, it is a statement that must be read in context.  That context included a letter that the delegate had sent to Mr Boyce on 19 July 2013 which relevantly stated:

   The Department has received information that you and your sponsor are not in a genuine and continuing spousal relationship.  Before a decision is made on your Subclass 801 application, you have the opportunity to provide a response to the information that your relationship has broken down.  …

5. That letter satisfies me that the relevant issue before the delegate was not whether Mr Boyce and Ms Hammond had ever been in a de facto relationship but whether a de facto relationship which the delegate accepted had existed at an earlier time was no longer on foot.

Consideration

Erroneous failure to apply cl.801.221(6)(c)

1. Pokharel’s case is distinguishable from the present case because in the former case the Tribunal’s reasoning was that, as the parties had never been in a spousal relationship, questions of family violence were irrelevant and so did not need to be considered.  In that connection, reg.1.23(12) provides that in deciding whether an applicant has suffered family violence:

   … the Minister must be satisfied that the relevant family violence, or part of the relevant family violence, 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.

2. In Pokharel’s case the Tribunal based its decision to not consider the applicant’s family violence claim on its antecedent finding that the parties had never been in a relevant relationship.  In the present case the Tribunal reasoned differently.  In para.36 of its decision, the Tribunal stated that it would not consider Mr Boyce’s family violence claims because he was not in a spousal [sic] relationship with Ms Hammond at the time of its decision, not because he had never been in one or had not been in one at earlier material times.  Although in para.33 of its decision the Tribunal did express the view that Mr Boyce and Ms Hammond had never been in a genuine and continuing de facto relationship, it did not expressly rely on that finding as a reason for not considering the family violence claim.

3. The Minister submitted that the Tribunal should be taken to have implicitly based its decision to not consider the family violence claim on the finding expressed in para.33 of its decision, notwithstanding that it did not actually say that, but I do not believe that para.36 of the Tribunal’s reasons is open to such a reading.  Paragraph 36 stated:

   As the Tribunal is not satisfied that the review applicant was the spouse [sic] of the sponsor as required by cl.801.221(2) and (2A), the review applicant does not meet cl.801.221(6)(b) and the Tribunal will not consider his claims of family violence.

   Subclauses (2) and (2A) of cl.801.221 each relevantly contain a criterion that the visa applicant be the spouse or de facto partner of the sponsor at the time of decision. Consequently, the statement made in para.36 of the Tribunal’s decision referring to those provisions is a finding consistent with Mr Boyce’s own claim that he was not Ms Hammond’s de facto partner at the time of the Tribunal’s review.

4. The next grammatical clause in para.36 might provide a basis for the implication the Minister seeks, that the Tribunal did not consider the family violence allegation because it did not believe that Mr Boyce and Ms Hammond had been in a de facto relationship at any material time. This is because, on its face, the statement in that clause is incorrect - the lack of a relevant relationship at the time of decision is a precondition to the operation of cl.801.221(6)(c) not an exclusion of its operation. However, I consider it more likely that the Tribunal was referring only to the situation at the time of decision rather than to the situation at any earlier time because in para.34 of its decision it had expressly based its finding that Mr Boyce did not satisfy cl.801.221(2)(c) on a finding that a de facto relationship did not exist “at the time of decision”.

5. This case is similarly distinguishable from Sharma v Minister for Immigration & Border Protection [2016] FCCA 1011, to which the Court was taken. It appears to have been clear in that case that the Tribunal’s decision to not consider a claim of family violence was also based on its conclusion that the alleged couple had never actually been in a relevant relationship.

6. I find that the Tribunal erred in its application of cl.801.221 because it proceeded on the erroneous basis that the absence of a de facto relationship at the time of decision had the result that cl.801.221(6) could not be engaged. Clause 801.221(6)(b) assumes the lack of such a relationship at that time but then requires the Tribunal to determine whether the lack of a relationship at that time was brought about by the cessation of a relationship which had existed previously.

Tribunal not bound by first delegate’s conclusion that a relationship existed at least at the time of application

1. Contrary to the applicant’s submissions, it would be open to the Tribunal to answer the question in cl.801.221(6)(b) in the negative. That is to say, the Tribunal may find that the lack of a relationship at the time of decision on the subclass 801 visa application was not caused by the cessation of such a relationship. It may conclude that there had never been a relationship, notwithstanding that the antecedent subclass 820 visa had been issued on the basis that a relationship had existed at the time of application and at the time of the decision to grant that visa.

2. In the course of argument the question arose whether the decision to grant Mr Boyce his subclass 820 visa was a privative clause decision and, if so, what significance that fact should have. In my view, although the first delegate’s decision on the subclass 820 visa application was a privative clause decision and so given certain protection and status by s.474 of the Act, the findings of fact on which it was based do not meet any of the definitions of a privative clause decision set out in that section. In any event, in this case those findings of fact are only implicit because the decision granting the subclass 820 visa did not, based on the material in the Court Book which was exhibit A, express any finding on the question of the genuineness of Mr Boyce and Ms Hammond’s relationship.

3. It was not demonstrated that, absent s.474 protection, the Tribunal was prevented from considering the couple’s relationship history, even if its conclusions were different from those of the first delegate. Further, it is to be recalled that there are no “time of application” criteria for the grant of a subclass 801 visa and so the first delegate’s findings on the subclass 820 visa application have no application to a subclass 801 visa application. I am not persuaded that the first delegate’s implicit factual findings had any particular relevance to the decision on the subclass 801 visa or that the Tribunal erred in reconsidering those matters for itself. Indeed cl.801.221(6)(b) and reg.1.23(12) suggest that it did not.

Breach of s.360(1) of the Act

1. Section 360(1) of the Act provides:

   360 Tribunal must invite applicant to appear

   (1)The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

2. As noted earlier, before the second delegate the existence of a relationship between Mr Boyce and Ms Hammond at an earlier time was not in question, indeed it was assumed.  The Tribunal’s decision makes it plain that it took a different view.  The second delegate refused Mr Boyce a subclass 801 visa because, relevantly, he had not satisfied her that his lack of a relationship with Ms Hammond at the time of decision on the visa application could be explained by the occurrence of family violence.  In contrast, the Tribunal concluded that the lack of a relationship at that time was the result of a spousal relationship never having existed.

3. The evidence does not support a conclusion that the Tribunal alerted Mr Boyce to the possibility that the issue which would be determinative of his review would be whether he had ever been in a relationship with Ms Hammond.  Because it did not do so, the Tribunal erred on that account as well.

Conclusion

1. The Tribunal’s decision is affected by jurisdictional error.

2. Consequently, it will be set aside and the matter remitted to be determined according to law.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Date: 1 February 2017