Chaichian v Minister for Immigration

[2016] FCCA 350

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHAICHIAN v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 350

Catchwords:
MIGRATION – Partner visa – review of decision of Migration Review Tribunal – non-judicially determined claim of family violence – statutory declarations in support failed to comply with reg.1.26 of Migration Regulations 1994 (Cth) – claimed violence occurred after relationship had ended – whether Tribunal’s finding was open to it – whether the Tribunal misunderstood criteria or applied incorrect criteria – whether Tribunal failed to take into consideration information – whether Tribunal erred by taking into consideration independent expert report – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.5F

Migration Legislation Amendment Regulation 2012 (No.5) (Cth), item 7 of sch.6, item 1 of sch.7
Migration Regulations 1994 (Cth), regs.1.22, 1.23, 1.24, 1.25, 1.26, cl.801.221(6) of sch.2

Applicant: HODA HOSSEIN CHAICHIAN

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 768 of 2015

Judgment of: Judge Smith

Hearing date: 8 February 2016

Date of Last Submission: 8 February 2016

Delivered at: Sydney

Delivered on: 23 February 2016

REPRESENTATION

Counsel for the Applicant: Mr J. Williams

Solicitors for the Applicant: Russell Byrnes Solicitors

Counsel for the First Respondent: Ms B. Tronson and Mr D. Sweeney

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 768 of 2015

HODA HOSSEIN CHAICHIAN

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of Iran. She came to Australia on a subclass 300 Prospective Marriage visa on 21 May 2010 and, on 25 May 2010, she married an Australian citizen. On 15 June 2010 she applied for a Partner (Temporary) (Class UK) visa and Partner (Residence) (Class BS) visa. The applicant was sponsored in her application by her spouse, Mr Saeed.

2. The basic scheme of the two visas for which the applicant applied is that the first visa is granted to allow the spouse of an Australian citizen or resident to remain temporarily in Australia, while the second is a permanent visa. The second visa is granted after the lapse of some time if, subject to some exceptions, the visa applicant is still in a relationship with his or her spouse. One of the exceptions is that the visa applicant has suffered family violence at the hands of the nominating spouse.

3. The issues in these proceedings concern the family violence exception referred to in the previous paragraph. It is necessary at this stage of the reasons to examine some of the detail of the provisions relevant to that exception.

Relevant statutory framework

1. The provisions relating to family violence are contained in div.1.5 of pt.1 of the Migration Regulations 1994 (Cth). Importantly, a reference in the Regulations to a person having suffered family violence is a reference to a person being taken, under reg.1.23, to have suffered family violence: sub-reg.1.22(1). Regulation 1.23 provides that there are a number of ways in which the person is taken to have suffered family violence. One of those includes what is referred to as a “non-judicially determined claim of family violence”: sub-regs.1.23(8) and (9). Relevantly, in order for an application for a visa to be taken to include a non-judicially determined claim of family violence the alleged victim or other person on his or her behalf must present certain evidence in accordance with reg.1.24.

2. At the time of the applicant’s application for a partner visa, there were two alternative ways in which evidence could be presented in accordance with reg.1.24. Relevantly, the second way was to present a statutory declaration under reg.1.25 (that is, a statutory declaration made by the alleged victim of relevant family violence) together with two statutory declarations under reg.1.26.[1] A statutory declaration for the purposes of reg.1.26 must have been made by a competent person (which included a registered medical practitioner and a registered psychologist) and, amongst other things, must have stated that:

   (c)… in the competent person’s opinion, relevant family violence (within the meaning of subregulation 1.21 (1)) has been suffered by a person;…

   [1] NB: Regulation 1.26 was repealed on 24 November 2012 but continues to apply to this proceeding: Migration Legislation Amendment Regulation 2012 (No.5) (Cth), sch.6 item 7, sch.7 item 1. 

3. If an application for a visa includes a non-judicially determined claim of family violence, the Minister must consider whether the alleged victim has suffered relevant family violence: sub-reg.1.23(10). If the Minister is not satisfied that the alleged victim has suffered the relevant family violence, the Minister must seek the opinion of an independent expert about whether the alleged victim has suffered the relevant family violence and must take that expert’s opinion on the matter, to be correct, for the purposes of deciding whether the alleged victim satisfied a prescribed criterion for a visa that requires the applicant or another person to have suffered family violence: sub-reg.1.23(10)(c).

4. Therefore, in summary, an alleged victim is taken to have suffered family violence if an application for a visa includes a non-judicially determined claim of family violence and either the Minister is satisfied that the alleged victim has suffered relevant family violence (sub-reg.1.23(11)) or the Minister is required to take as correct an opinion of an independent expert that the alleged victim has suffered relevant family violence (sub-reg.1.23(13)). In both cases, the violence in question 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: sub-regs.1.23(12) and (14).

5. The critical aspects of this scheme for the purposes of these proceedings are: first, that a non-judicially determined claim of family violence must be made in the application; secondly, in order for such a claim to be made there must be evidence given in accordance with reg.1.25; and thirdly, on the facts of this case, the statutory declarations of the competent persons must state that in that person’s opinion relevant family violence had been suffered by a person.

6. With that outline of the legislative scheme in mind it is convenient to return to the facts.

Background

1. On 5 October 2010 the applicant was granted a Partner (Temporary) (Class UK) visa. However, on 24 July 2012, the Department of Immigration received a number of documents including a statutory declaration of the applicant dated 17 July 2012 saying that when her marriage had only been on foot for a few weeks, her husband became very abusive and that she had been subjected to “verbal and emotional/psychological abuse” by him. She said that, after a short time, he left her alone and went back to Iran to settle a family issue and never returned. She said that she went to live with her husband in Iran but that he refused to live with her and told her that he had “got another women” (sic) and that he then started to use abusive language towards her and inflicted emotional and physical harm. The applicant then said that she returned to Australia hoping that he would change his position but that her husband simply wanted to keep her as a second wife for emergency only, and to bring his new partner to Australia.

2. The statutory declaration reveals that the applicant intended to rely upon the domestic violence exception to the requirement that she still be in a relationship with her spouse. In further support, the applicant sent two statutory declarations to the Department: the first by a registered psychologist, Mr Abaie, which attached a confidential psychological report, and the second by a medical practitioner, Dr Saeed which attached a letter from him. Neither of those statutory declarations or attachments stated that, in the author’s opinion, relevant family violence had been suffered by the applicant. For that reason the declarations and their attachments did not comply with sub-reg.1.26(c) and, as a consequence, the applicant’s application did not include a non-judicially determined claim of family violence.

3. In spite of that, a delegate of the Minister referred the matter to an independent expert for an opinion as to whether the applicant had suffered relevant family violence pursuant to sub-reg.1.23(10)(c). That expert provided a report dated 26 August 2013 in which she expressed the opinion that the applicant had not suffered relevant family violence. After receiving the applicant’s comments upon that report, the delegate made a decision on 25 October 2013 to refuse to grant the applicant a visa. The applicant applied to the Tribunal for review of that decision.

4. By letter dated 18 November 2014 the Tribunal invited the applicant to attend a hearing. In written submissions given to the Tribunal shortly before the hearing, and amongst other things, the applicant’s agents gave further details about the history of the applicant’s relationship with her husband and made submissions about the independent expert report. In addition, the submissions attached a number of documents including a report from the applicant’s treating psychiatrist Dr Oen, and an updating report from the applicant’s treating family medical practitioner, Dr Shareef. However, neither of these documents was a statutory declaration and so could not satisfy the requirements of reg.1.26.

5. On 13 February 2015 the Tribunal[2] made its decision affirming the delegate’s decision not to grant the applicant a visa.

   [2] As it was then known. On 1 July 2015 it became the Administrative Appeals Tribunal: Tribunals Amalgamation Act 2015 (Cth).

The Tribunal’s decision

1. The Tribunal had significant concerns as to whether the applicant and the sponsor were in a genuine relationship with each other. It found that there was very little information concerning the financial aspects of the relationship between the applicant and her husband or any household established by them. It found that the applicant and the sponsor did share a household together for 24 days from the date of their marriage on 25 May 2010 but that the parties lived separately and apart on a permanent basis from the time that the applicant’s husband left Australia on 19 June 2010.

2. The Tribunal gave little weight to supportive statements by friends concerning the relationship in light of the fact that the sponsor left Australia shortly after those statements were made. Further, it found that the applicant’s evidence about her husband’s attitude towards her in Iran revealed that the sponsor had no intention of living with the applicant and that they were living separately and apart on a permanent basis.

3. In spite of these concerns the Tribunal accepted that the applicant and her husband were in a genuine relationship at the time that the parties were living together in Australia but found that upon the sponsor leaving Australia on 19 June 2010, the relationship had come to an end. For that reason the Tribunal found that the applicant did not meet the definition of a spouse of a sponsoring partner from the date the sponsor left Australia.

4. The Tribunal then turned to consider the claim of family violence. First it noted that the violence or part of the violence had to have occurred during the relationship. Secondly, it considered the two statutory declarations and reports by “competent persons” submitted by the applicant in support of her claims. In this respect it noted that in both declarations and their attachments there was no indication that the conduct of the sponsor caused the applicant to reasonably fear for, or be reasonably apprehensive about her own well-being or safety. It also noted that the conduct which was reported by the competent people did not relate to any period during which the sponsor and the applicant were living together in Australia, that is to say, at a time when the applicant was in a genuine relationship with her husband.

5. The Tribunal concluded that the applicant had not made a non-judicially determined claim of family violence in accordance with the requirements of sub-regs.1.23(8) or (9). It went on to find that any of the claims made by the applicant that she suffered family violence when she confronted her sponsor in Iran in November 2010 were not relevant as the married relationship between the two had come to an end. In light of that conclusion, the Tribunal found that the claimed family violence had not been established and that the applicant did not meet the requirements of sub.cls.801.221(6)(b) and (c) for the grant of the visa and so he affirmed the decision of the delegate to refuse to grant the applicant a visa.

Consideration

1. Before dealing with the specific grounds raised by the applicant it is important to comment on the applicant’s formulation of the issue before the Court. In her written submissions, at [15], she stated that the “issues in the present case are whether those ground [sic] for refusal are made out, and if so, whether the visa should not have been issued.” With respect, that is not the issue for the Court. Formulated in this way, the issue presented would only amount to an attack on the merits of the Tribunal’s decision. This Court can only grant a remedy in relation to the Tribunal’s exercise of power if that exercise of power was affected by jurisdictional error. With that limitation in mind I now turn to the grounds argued by the applicant.

2. The grounds in the application filed in the Court are not easy to follow. The first ground is that the Tribunal misinterpreted, misunderstood or misapplied or otherwise failed to ask itself the correct question. The first particular of this ground appears to be that the Tribunal erred at [109] of its reasons by finding that the relationship between the applicant and the sponsor had ended prior to the sponsor travelling to Iran in November 2010. The second particular, that the Tribunal erred by concluding that the applicant had not suffered family violence by the sponsoring partner at the time of the Tribunal’s decision, is dealt with below. At the heart of the first argument was the submission that the Tribunal should have found that the applicant and sponsor were spouses for the purposes of the Act because they were married to each other under a marriage that was valid for the purposes of the Act.

3. As already noted, one of the criteria that had to be satisfied for the grant of the visa was that the applicant was the “spouse” of the nominating spouse. Subsection 5F(1) of the Act provides that a person is the “spouse” of another person if, under sub-s.(2), the two persons are in a “married relationship”. There are four cumulative requirements under sub-s.(2) for a person to be in a “married relationship”. One of them is that the persons are married to each other under a marriage that is valid for the purposes of the Act. However, as the Minister submitted, to meet that condition is necessary but not sufficient in order to be in a married relationship. The remaining conditions are:

   (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:

   (i)live together; or

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

4. The applicant accepted in argument that it was open for the Tribunal on the material before it to find that the applicant and her husband did not have a mutual commitment to a shared life as husband and wife to the exclusion of all others once the husband went to Iran. In light of that concession, there can be no issue that it was open for the Tribunal to conclude that after that time and that reason, she was not the spouse of the sponsor.

5. Counsel for the applicant sought to avoid this consequence by arguing that sub-s.5F(3) meant that a decision maker had a discretion to find that two people were in a married relationship even if one of the particular requirements in sub-s.(2) was not met. Subsection (3) does not have had that effect. It provides:

   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 provisions in relation to the determination for different purposes whether one or more of those conditions exist.

6. Subsection (3), on its face, does no more than enable the making of regulations relevant to the determination of whether or not the curative requirements in sub-s.(2) have been met. It does nothing to undermine the cumulative nature of those conditions. For those reasons this argument is rejected

7. The second argument raised by the applicant is that the Tribunal erred by applying a “time of the application” criterion. This ground focuses on the following passage of the Tribunal is reasons:

   [77]When considering the nature of the parties’ commitment to each other, the tribunal finds that there is limited information which would indicate the parties were committed to any relationship at the time the application was filed. The tribunal finds that after the sponsor left Australia on 19 June, 2010 the sponsor was not committed to any relationship with the applicant and did not provide any companionship or emotional support for her.

8. While the applicant is correct to say that there is no “time of the application” criterion for the grant of the subclass 801 visa, the Tribunal did not apply any such criterion. The passage relied upon by the applicant merely shows that the Tribunal considered the evidence that might have been relevant to such a criterion. It made no determination on the basis of that evidence about the state of the relationship at the time of the application and the findings made by it that were critical to its decision had no bearing upon the time of the visa application. For those reasons the Tribunal did not fall into any error by referring to the time of the application and the argument is rejected.

9. The third argument raised by the applicant is that the Tribunal erred at [110] of its reasons in finding that the applicant had not suffered family violence by the sponsoring partner at the time of the decision for the purposes of sub-cls.801.221(6)(b) and (c) of the Regulations. This argument appears to be based on the assumption that the Tribunal ought to have found that the applicant was still in a “married relationship” with her sponsor after the sponsor had left for Iran (see [22] of the application). The argument is that, because the applicant was still in a married relationship to her sponsor when she went to visit him in Iran, the violence suffered by her at his hands at that time fell within the definition of “relevant family violence”. That argument would be correct if the assumption upon which it is based were correct. However, for the reasons that I have given, the Tribunal did not err in finding that the applicant was not in a married relationship with her sponsor at that time. In light of that, as explained above, any violence suffered by her was not relevant to the determination of any claim of family violence: sub-regs.1.23(12) and (14). In any event, there is an insuperable difficulty in the applicant’s case. Given that neither of the statutory declarations by competent persons relied upon by the applicant complied with sub-reg.1.26(c), there was no evidence given in accordance with reg.1.24. In light of that, there could be no “non-judicially determined claim of family violence”: sub-reg.1.23(9)(c). As the only way in which the applicant could have satisfied the criterion in sub-cl.801.221(6) was to have made a “non-judicially determined claim of family violence” (see sub-regs.1.23(11) and (13)), she could not satisfy the criteria for the grant of the visa and the Tribunal was obliged to affirm the decision on review. For that reason the Tribunal did not err by finding that the Tribunal did not make a non-judicially determined claim of family violence in accordance with the requirements of sub-regs.1.23(8) or (9): see [16] of application.

1. For that reason, it is not necessary to consider the remaining two arguments made by the applicant. However, for the sake of completeness, I will do so briefly.

2. The first is that the Tribunal erred by failing to take into consideration the reports by competent people with regard to family violence suffered by the applicant in Iran (see [24] of the application). This ground was changed slightly in written submissions to be that the Tribunal erred by failing to give “proper, genuine or realistic consideration” to the reports about the violence in Iran. It is plain that the Tribunal gave some consideration to the various reports relied upon by the applicant. It is unnecessary to consider the quality of any consideration given by the Tribunal because, as I have already explained, once the Tribunal had found that the applicant was not in a married relationship with the sponsor from the time that he had left for Iran, the Regulations made any violence that might have occurred there irrelevant to its determination of the review.

3. The applicant also argued that the Tribunal erred by taking into account the report of the independent expert. This argument was that once the Tribunal concluded that there had been no “non-judicially determined claim of family violence” it was neither obliged nor entitled to seek the opinion of an independent expert in accordance with sub-reg.1.23(10). It will be recalled that the delegate, rather than the Tribunal, had sought the opinion of the independent expert. She may have been wrong to do so, however in my view that error did not affect the Tribunal’s decision. That is because, although the Tribunal did refer to the report of the independent expert, it was immaterial to its decision. That is principally because the applicant did not make a “non-judicially determined claim of family violence” within the meaning of the Regulations and therefore was bound to fail in application for review.

Conclusion

1. For those reasons the applicant has not established any jurisdictional error in the Tribunal’s decision on the application must be dismissed.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Smith

Associate: 

Date:  23 February 2016