Cao v Minister for Immigration, Citizenship & Multicultural Affairs
[2024] FedCFamC2G 304
•10 April 2024
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:
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.
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 witnesses or the other evidence to demonstrate the relationship.
4.The applicant has experienced hardship in the relationship, the First and Second Respondents did not consider this point.
5.There is bias existed in the assessment which is done by the Second Respondent.
6.The second respondent has not given more opportunities to the applicant for the concerning issues.
7. The second respondent has not unfairly assessed this matter.
The essence of the applicant’s claim to the Tribunal was that whilst his relationship with his sponsor had ended, he was a victim of family violence and therefore met the requirement for the visa.
The applicant was unrepresented at the hearing, and he appeared with the assistance of an interpreter.
THE VISA REQUIREMENTS
For the applicant to be granted the visa, the decision maker must be satisfied that the applicant is the spouse or de facto partner of the sponsor.[1]
[1] Migration Regulations 1994 sch 2 cl 100.221(2)(b).
If the applicant’s relationship with the sponsor has ceased, and the applicant would have otherwise met the requirements for the visa but for the relationship ending, and the applicant suffered family violence committed by the sponsor, they will meet the requirements for the visa.[2]
[2] Ibid sch 2 cl 100.221(4)(b), (c)(i).
The decision maker can be satisfied that the applicant has suffered family violence in two general circumstances.[3] First, where evidence has been tested by a court and there has already been certain orders or findings made by that court at certain points in time. This is not applicable to this matter. Second, where the applicant makes a non-judicially determined claim of family violence and the decision maker is satisfied that the applicant has suffered family violence or an independent expert gives an opinion that the applicant suffered family violence.[4]
[3] Ibid reg 1.23.
[4] Ibid reg 1.23(10).
To make a non-judicially determined claim of family violence, the applicant must provide a statutory declaration which meets the requirements of reg 1.25 of the Migration Regulations 1994 (Cth) and provides the type and quantity of evidence as specified by the Minister by legislative instrument.[5]
[5] Ibid reg 1.24; Minister for Immigration and Citizenship, Migration Regulations 1994 - Specification of Evidentiary Requirements (IMMI 12/116, 23 November 2012) – now repealed but current at the time of the Tribunal’s decision.
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.
The delegates finding that the applicant was not the ‘spouse’ of the sponsor, even whilst they lived together, had the necessary consequence of defeating his claim that he should be granted the visa because he suffered family violence.[6] This is so because the delegate was satisfied that the applicant was not the spouse of the sponsoring partner prior to separation.
[6] Migration Regulations 1994 sch 2 cl 100.221(4).
On 4 May 2015, the applicant lodged an appeal against the delegate’s decision to the Tribunal (differently constituted) which affirmed the decision of the Department, finding the applicant had not been the spouse of the sponsor.
The applicant appealed this decision to the then Federal Circuit Court, which was successful. On 1 November 2017, orders by consent were made quashing the Tribunal’s decision and remitting the matter to the Tribunal to be redetermined according to law.
This is so because the Tribunal failed to provide the applicant the details of a certificate pursuant to s.375A of the Migration Act 1958 (Cth) in its possession. This certificate allows information to be disclosed to the Tribunal and no other person on public interest grounds. It places an obligation on the Tribunal to ensure that the information is not disclosed to any other person.
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.
Post-separation, the Tribunal was satisfied that the applicant and sponsor no longer had any mutual commitment to a shared life to the exclusion of all others and, as such, that the relationship was not genuine or continuing and they did not live together.
With the primary requirements for the visa not being satisfied, and because there was no information to suggest that the sponsor had died or that there were any children of the relationship, the Tribunal turned its mind to whether the applicant was subject to family violence committed by the sponsor within the meaning of the Regulations.
The Tribunal stated that, according to the Regulations, a person is taken to have suffered or committed family violence if there is evidence tested before a court or if the application includes a non-judicially determined claim of family violence. If a valid non-judicially determined claim of family violence is made, either the Tribunal must be satisfied that the victim did suffer the family violence, or an independent expert has stated that the victim had suffered family violence.
The applicant had conceded that there were no judicial determinations of family violence. Therefore, the Tribunal proceeded to consider whether the applicant had made a valid non-judicially determined claim of family violence.
To support his claim, the applicant had relied upon multiple written statements (dated 12 November 2014, 11 January 2015, 1 February 2015, and 15 February 2015). The Tribunal noted that none of these statements were statutory declarations as required by the Regulations. No other material was provided by the applicant which made a valid claim of non-judicially determined family violence despite the Tribunal giving the applicant an opportunity to do so.
At the hearing, the applicant gave the following information in relation to his claim of family violence:
(a)He had never received treatment at a hospital or from a doctor in relation to family violence;
(b)No reports had ever been made by the applicant or another person in respect to family violence committed by the sponsor; and
(c)The applicant never consulted a social worker, counsellor or psychologist in respect of any family violence.
The Tribunal noted that, as well as there being no statutory declaration, the material provided by the applicant did not meet the evidentiary requirements as specified by the Minister for this purpose.[7]
[7] Minister for Immigration and Citizenship, Migration Regulations 1994 - Specification of Evidentiary Requirements (IMMI 12/116, 23 November 2012).
The Tribunal subsequently concluded that the applicant had failed to make a valid non-judicially determined claim family violence despite being invited to do so. As a necessary consequence of this conclusion, the Tribunal held that the applicant failed to meet the requirements for a visa and the Tribunal affirmed the decision of the delegate.
DETERMINATION
Despite Court orders of 22 February 2024, the applicant has failed to file any written submissions in support of his application. He was however, given the opportunity and did make oral submissions to the Court at the hearing. Those submissions did not elucidate the matters any further.
The submissions dealt, in large part, with the merits of the visa application and sought to explain why the applicant had acted in the manner he had when he was in a relationship with his sponsor. The applicant submitted that the sponsor would be rude and aggressive towards him, and that he had explained to her that in Australia it is against the law to hit women, but that if she persisted in acting in that way he would hit her. The applicant then explained that his sponsor continued with her abuse, so he hit her, which is when she reported the matter to the police and the relationship ended. He had not reported her abuse to the police nor did he seek any medical assistance or treatment at any point in time. The applicant said that his sponsor had provoked him such that she could end the relationship. He also said that their relationship had been genuine prior to that.
None of these matters go to the grounds of judicial review which have been raised. They might go to explaining his behaviour but they are not relevant in terms of his application. If anything, these matters might have been included in a statutory declaration had the applicant completed one as requested by the Tribunal.
Grounds 1 to 4
Grounds 1 to 4 deal with the applicant’s claim for family violence.
As noted earlier in these Reasons for Judgment, the Regulations create a framework for the making of claims for non-judicially determined claims of family violence. The applicant’s failure to provide the relevant information by way of statutory declaration setting out the allegations of family violence (including the name of the alleged perpetrator) means that the evidentiary requirements have not been met.[8]
[8] See Sok v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 144 FCR 170 at [45].
Notwithstanding the letter of 12 December 2018 by the Department advising him of the need to provide details of documents that the applicant sought to rely upon in establishing his claim of non-judicially determined family violence and being represented by a migration agent throughout the proceedings, the applicant did not provide any such statutory declarations.
As such, there were no relevant claims of family violence for the Tribunal to consider, and consequently, there was no error by the Tribunal in disposing of the review on this basis.
Grounds 1 to 4 are not established.
Ground 5
Ground 5 is an assertion by the applicant that bias existed in the assessment conducted by the Tribunal.
The application does not identify whether the bias claim is actual or apprehended. The applicant’s oral submissions took the matter no further.
A claim of bias is serious and requires evidence. The applicant has not provided any such evidence.
The mere fact that the Tribunal makes adverse findings in respect of the applicant does not give rise to an inference of bias or, by itself, suggest that the decision-maker approached its task other than with a mind open to persuasion.[9]
[9] SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38] (per von Doussa J).
There is no evidence upon which a fair-minded lay observer, properly informed as to the nature of the proceedings, the matters in issue, and the conduct of the Tribunal, might reasonably apprehend that the Tribunal may not have brought an impartial mind in determining the application for review.[10]
[10] See Re Refugee Review Tribunal; ex parte H (2001) 179 ALR 425 at [27]-[32] (per Gleeson CJ, Gaudron and Gummow JJ); NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 at [115] (per Allsop J, with whom Moore and Tamberlin J agreed).
A fair reading of the Tribunal’s decision does not disclose any prejudgment on the part of the Tribunal.
Ground 5 is not established.
Grounds 6 and 7
Ground 6 asserts that the applicant was not given more opportunity by the second respondent to presumably deal with the issues which were of concern, and Ground 7 asserts unfairness. Both of these grounds therefore allege procedural unfairness by the Tribunal.
The applicant was represented at all relevant times, and was expressly informed of the need to provide details of the documents he needed to provide. He did not respond to the request, whether himself or through his representative. Indeed, during the hearing before the Tribunal the applicant confirmed that the had no further documents to provide to the Tribunal.
The applicant has failed to identify any unfairness in the way the Tribunal dealt with the matter or in the way that it assessed the matter. The applicant’s assertion that “the second respondent has not unfairly [sic] assessed this matter”[11] is of no assistance to him, without any identification or particularisation of what was unfair.
[11] Presumably, the applicant is saying that the second respondent unfairly assessed the matter.
Grounds 6 and 7 are not established.
The application for judicial review is therefore dismissed, and the applicant is to pay the first respondent’s costs fixed pursuant to the relevant scale.
I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Obradovic. Associate:
Dated: 10 April 2024
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