Cao v Minister for Immigration, Citizenship & Multicultural Affairs

Case [2024] FedCFamC2G 304

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Cao v Minister for Immigration, Citizenship & Multicultural Affairs [2024] FedCFamC2G 304  

File number(s): SYG 589 of 2019
Judgment of: JUDGE OBRADOVIC
Date of judgment: 10 April 2024
Catchwords: MIGRATION LAW – JUDICIAL REVIEW – No longer spouse or de facto partner – Whether there was non-judicially determined family violence – Whether requirements demonstrating non-judicially determined family violence were satisfied according to regulations – Oral submission not taking grounds further  
Legislation:

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth)

Cases cited:

NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264

Re Refugee Review Tribunal; ex parte H (2001) 179 ALR 425

SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668

Sok v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 144 FCR 170

Division: Division 2 General Federal Law
Number of paragraphs: 57
Date of hearing: 5 April 2024
Place: Parramatta
Appearing for the Applicant: In person
Solicitor for the Respondents: Mr Pasas of Clayton Utz

ORDERS

SYG 589 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

ZHIGUI CAO

Applicant
AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:

JUDGE OBRADOVIC

DATE OF ORDER:

10 APRIL 2024

THE COURT ORDERS THAT:

1.Application filed 12 March 2019 is dismissed.

2.The applicant is to pay the respondent’s costs fixed in the amount of $8,371.30.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE OBRADOVIC:

  1. These are the Reasons for Judgment with respect to the Application filed 12 March 2019 by the applicant seeking judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) dated 15 February 2019. In its decision, the Tribunal affirmed the decision of a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (“delegate”) to refuse the applicant a Partner (Migrant) (Class BC) visa.

  2. The applicant’s grounds for judicial review are as follows:

    1.The First and Second Respondents did not take all the information and documents I provided into consideration, especially I have raised the issue of domestic violence involved in the relationship, the First and Second Respondents should take the evidence from the witnesses.

    2.The Second Respondent did not treat the applicant fairly in relation to assess the domestic violence which has been taken place after the applicant granted 309 visa.

    3.The Second and First Respondents should consider the fact that the sponsor has taken the advantage of visa applicant, there is no oral evidence taken from the…

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Details
AGLC
Cao v Minister for Immigration, Citizenship & Multicultural Affairs [2024] FedCFamC2G 304
Case
[2024] FedCFamC2G 304
Decision Date

CaseChat Overview and Summary

In the case of Cao v Minister for Immigration, Citizenship & Multicultural Affairs, the applicant, a citizen of China, sought judicial review of a decision by the delegate of the Minister for Immigration, Citizenship & Multicultural Affairs not to grant him a visa. The applicant had entered Australia on a provisional visa, which was sponsored by his former spouse, Wei Lu. The delegate found that the relationship between the applicant and Ms Lu had ended and that the sponsor had withdrawn her sponsorship due to alleged family violence by the applicant. Consequently, the delegate did not grant the visa.

The primary legal issues the court had to decide were whether the applicant had satisfied the requirements of demonstrating non-judicially determined family violence under the Migration Regulations and whether the Tribunal had properly considered the statutory declaration and other evidence provided by the applicant in relation to the family violence allegations. The court had to determine if the Tribunal's decision was legally sound, particularly regarding the acceptance of the applicant's claim of being a victim of family violence and the validity of the statutory declaration provided.

The court found that the applicant had not provided a statutory declaration as required by the Migration Regulations, nor did he provide any other material that substantiated a valid claim of non-judicially determined family violence. The court also noted that the Tribunal had taken a different approach to the delegate and the Tribunal as initially constituted, accepting that the applicant was in a genuine relationship with Ms Lu until their separation in late 2014. However, the court emphasised that the absence of a statutory declaration and other supporting evidence meant that the Tribunal could not have properly considered the applicant's claim of being a victim of family violence. As a result, the court upheld the delegate's decision not to grant the visa.

The final orders of the court were to affirm the decision of the delegate not to grant the visa, and to dismiss the applicant's appeal.

Orders

Orders of the court

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Background

Background to the litigation

As will become evident later in these Reasons, the applicant did not provide to the Tribunal a statutory declaration as required nor did he provide any other material which made a valid non-judicially determined claim of family violence. BACKGROUND The applicant was born in and is a citizen of China. He is currently 58 years old. The applicant and his sponsor for his visa, Wei Lu, first married in China in 1995 and divorced in 1997. Ms Lu subsequently married her third husband, who sponsored her and her daughter for a partner visa, which was granted in 2010. Ms Lu later divorced her third husband in 2011. The applicant and sponsor say they re-established their relationship in or about 2011. The sponsor travelled to China and they married for a second time in February 2012. On 13 December 2012, the applicant lodged an application for a Partner (Provisional) (Class UF) (Subclass 309) visa (“provisional visa”) and a Partner (Migrant) (Class BC) (Subclass 100) visa (“visa”). In August 2013, the applicant was granted the provisional visa. The sponsor and the applicant entered Australia in August 2013. In September 2014, the Department received information that the applicant and sponsor’s relationship had ended and that the sponsor had withdrawn her sponsorship of the application. The sponsor provided a statement to the Department saying the relationship had ended and that she had suffered family violence at the hands of the applicant. The sponsor provided pictures which purported to show injuries to her cheek. The sponsor also provided details of a WeChat record between the applicant and the sponsor’s daughter which appeared to show that the applicant had offered the sponsor 200,000 to allow him to stay in Australia, the currency being unclear. Thereafter, the Department invited the applicant to comment on this adverse information. The essence of the applicant’s response and submissions to the Department were that:(a)He and the sponsor had arguments;(b)The sponsor pushed him and verbally abused him;(c)He was terrified of the sponsor;(d)He left the sponsor to avoid further harm;(e)He offered the sponsor RMB200,000 to ‘let him go’ and to stop tormenting him;(f)The sponsor only ever wanted his money;(g)He did slap the sponsor in the face in January 2014; and(h)He still lived with the sponsor until 6 October 2014 at which point he left the home and the relationship ended. Thereafter, the Department also found that the applicant had created a separate WeChat identity and had provided false information. The applicant was invited to reply but did not do so within the stated time. On 17 April 2015, the delegate made the decision not to grant the applicant the visa. The Department was not satisfied that the parties were in a genuine and continuing relationship even whilst he was living with the applicant. The grounds for that decision included, inter alia, that:(a)There was no evidence that the parties had pooled their finances or had any joint assets of liabilities;(b)It was unclear when the applicant and sponsor stopped sharing a bedroom;(c)The applicant had said that he had slapped the sponsor and had arguments with her;(d)The allegation that the applicant offered the sponsor money to continue her sponsorship, which he acknowledged and later denied, indicated a willingness by the applicant to provide false information;(e)The evidence of the social aspect of the applicant and sponsor’s relationship was not compelling; and(f)There was little information that indicated that the parties had a mutual agreement to any shared life or long-term relationship.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

On 12 December 2018, the Tribunal invited the applicant to attend a hearing on 13 February 2019 and provided the applicant the details of the s.375A certificate and invited him to make submissions as to its validity. The applicant was also invited to make submissions as to the documents the applicant was relying upon to make a non-judicially determined claim of family violence as required by the Regulations. The applicant did not provide any such submissions.THE TRIBUNAL’S DECISION The applicant attended the hearing before the Tribunal on 13 February 2019. At the hearing, the Tribunal said that the applicant gave the following information:(a)His relationship with the sponsor had ended in November 2014;(b)He applied for a divorce in 2015 and is now divorced from the sponsor;(c)He has been living with his new girlfriend with whom he has been in a relationship with since October 2017;(d)Apart from the divorce proceedings there were no court proceedings between himself and the sponsor, no charges had been brought against him or the sponsor and neither of them applied for an apprehended violence order; and(e)He had never sought medical or psychological treatment in relation to the alleged family violence. Pursuant to s.359AA of the Act, the Tribunal put to the applicant information that would be the reason, or part of the reason, for affirming the delegate’s decision. This included the messages sent by the applicant to the sponsor’s daughter offering to pay money to the sponsor, and the interview with the sponsor’s daughter where she alleged the applicant had a short temper and had assaulted the sponsor. The applicant responded by stating that:(a)He had arguments with the sponsor after arriving in Australia because the sponsor did not want him sending money to China and did not want his daughter to come and live in Australia;(b)He told his wife he could not beat her according to Australian law but if she continued talking to him as she did it might prompt him to hit her;(c)When he slapped the sponsor in the face the police attended but nothing further happened;(d)The sponsor also hit him but he did not do anything about it; and(e)He had a fear that the sponsor would withdraw her sponsorship and he would not be able to stay in Australia. The applicant further stated that the only relevant documents he was relying upon to make and establish non-judicially determined claim of family violence were his statements he had previously made to the Department and that he had no other documents to support his claim. The Tribunal summarised the applicant’s claim as being that his relationship with the sponsor had ceased but that he was a victim of family violence. The Tribunal took a different approach to the delegate and the Tribunal as first constituted; it accepted, at face value, that the applicant was in a genuine relationship with the sponsor at the time the application for the visa was made and continued to be in that relationship until they were separated in late 2014.

Ratio Decidendi

Legal Principle Established

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