Chaichian v Minister for Immigration and Border Protection
[2016] FCA 646
•27 May 2016
FEDERAL COURT OF AUSTRALIA
Chaichian v Minister for Immigration and Border Protection [2016] FCA 646
Appeal from: Chaichian v Minister for Immigration [2016] FCCA 350 File number: NSD 378 of 2016 Judge: NORTH J Date of judgment: 27 May 2016 Legislation: Migration Act 1958 (Cth) ss 5F(2)
Migration Regulations 1994 (Cth) regs 1.21, 1.23, 1.24, 1.26, 801.221
Date of hearing: 26 and 27 May 2016 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: No Catchwords Number of paragraphs: 25 Counsel for the Appellant: Mr J Williams Solicitor for the Appellant: Russell Byrnes Solicitors Counsel for the Respondents: Ms B Tronson Solicitor for the Respondents: DLA Piper Australia ORDERS
NSD 378 of 2016 BETWEEN: HODA HOSSEIN CHAICHIAN
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
NORTH J
DATE OF ORDER:
27 MAY 2016
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The appellant to pay the first respondent’s costs of the appeal, including hearings on both 26 May and 27 May 2016, as agreed or assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
NORTH J:
INTRODUCTION
Before the Court is an appeal from an order of the Federal Circuit Court made on 23 February 2016. The Federal Circuit Court dismissed an application for judicial review of a decision of the Migration Review Tribunal, now the Administrative Appeals Tribunal, made on 13 February 2015 not to grant the appellant a Partner (Residence) (Class BS) visa.
THE FACTS
The appellant is a citizen of Iran, aged about 28 years. On 21 May 2010, the appellant arrived in Australia on a Prospective Marriage (subclass 300) Visa. The sponsor was Saeed Reiazi, an Australian citizen who was born in Iraq, and is aged about 30 years. On 25 May 2010, the appellant and her sponsor were married.
On 15 June 2010, the appellant lodged an application for a partner visa. The application encompassed a claim for a Partner (Temporary) (Class UK820) Spouse visa, and then after two years a Partner (Residence) (Class BS801) visa(Partner (Residence) visa).
On 19 June 2010, the sponsor, then the appellant’s husband, left Australia and did not return.
On 5 October 2010, the appellant was notified by the Department that she had been granted a Partner (Temporary) (Class UK820) Spouse visa.
On 17 November 2010, the appellant travelled to Iran to try to reunite with her husband. On 27 December 2010, the appellant returned to Australia.
In March 2012 the Department of Immigration and Citizenship, as it then was, contacted the appellant to assess the continuing relationship between herself and the sponsor for the purposes of her application for a Partner (Residence) visa. In August 2012, the appellant submitted documents to the Department claiming that the relationship with her husband had ceased, but that she had suffered family violence from him, and hence she sought a Partner (Residence) visa on that basis.
THE RELEVANT STATUTORY SCHEME
It was a requirement, pursuant to reg. 801.221(6)(c)(i) of the Migration Regulations 1994 (Cth) (the Regulations), for the appellant to obtain a Partner (Residence) visa that she establish that she had suffered family violence committed by her husband.
Regulation 1.23 of the Regulations provided for a number of circumstances in which a person is taken to have suffered family violence. The majority of these circumstances require a judicial determination of family violence in the form of an injunction, a court order or a conviction. In the absence of a judicial determination, reg. 1.23 also provided that a person may be taken to have suffered family violence on the basis of a non-judicially determined claim of family violence.
Regulation 1.23(9)(c) provided that an application for a visa is taken to include a non-judicially determined claim of family violence where the victim has presented evidence in accordance with reg. 1.24 of the Regulations that the alleged victim has suffered relevant family violence, and the alleged perpetrator committed that relevant family violence. Importantly, reg. 1.23(10)(a) provided that the Minister is only required to consider whether the alleged victim has suffered family violence if the visa application includes a non-judicially determined claim of family violence..
The evidence required under reg. 1.24(b) of the Regulations, so far as is relevant to the circumstances of this appeal, was two statutory declarations under reg. 1.26. Regulation 1.26 provided that:
A statutory declaration under this regulation:
(a) must be made by a competent person; and
(b)must set out the basis of the competent person’s claim to be a competent person for the purposes of this Division; and
(c)must state that, in the competent person’s opinion, relevant family violence (within the meaning of subregulation 1.21 (1)) has been suffered by a person; and
(d)must name the person who, in the opinion of the competent person, has suffered that relevant family violence; and
(e)must name the person who, in the opinion of the competent person, committed that relevant family violence; and
(f)if the conduct of the person alleged to have committed the relevant family violence was not towards the alleged victim:
(i)must name the person whom the conduct of the alleged perpetrator was towards; and
(ii)must identify the relationship between the alleged victim and the person whom the conduct was towards; and
(g)must set out the evidence on which the competent person’s opinion is based.
Regulation 1.26 was repealed, pursuant to cl. 7 of schedule 6 of the Migration Legislation Amendment Regulation 2012 (No. 5) (Cth) (the Amendment Regulation), effective from 24 November 2012. However, its operation, for the purposes of the present case, was preserved by the transitional arrangements provided by cl. 601(6) of schedule 7 of the Amendment Regulation. There was some argument at the hearing about the operation of the transitional provisions, but even if they did not operate as indicated, the replacement provisions in effect, for the purposes of this appeal, provided for the same evidentiary requirements.
A “competent person”, for the purposes of reg. 1.26(a) of the Regulations, was defined by reg. 1.21(1)(a)(i) and (ii) to include a registered medical practitioner and a registered psychologist. “Relevant family violence” was defined in reg. 1.21(1) of the Regulations to mean:
conduct, whether actual or threatened, towards:
(a) the alleged victim;
…
that causes the alleged victim to reasonably fear for, or to be reasonably apprehensive about, his or her own wellbeing or safety.
THE TRIBUNAL’S DECISION
The appellant submitted to the Department a statutory declaration made by a medical practitioner, Dr Kurdo Saeed, on 3 July 2012, and a statutory declaration made by a registered psychologist, Kasim Abaie, on the same date. The Tribunal held at [97] that:
The information provided in both of those documents do not make any reference to relevant family violence within the meaning of sub-regulation 1.21(1) .
The Tribunal referred in detail to the deficiencies, which it explained further at [98] and [99] as follows:
98.The report by Dr Saeed states that the applicant "found herself in a very hard situation when her husband, Mr Saeed Reiazi showing he doesn't want her and wants to marry some one [sic] else. Mr Saeed Reiazi is still overseas and (the applicant) felt insecure and helpless, she had to come back to Australia and she aspires to stay in Australia with her older brothers..." There is no indication in this statement that the conduct of the sponsor caused the applicant to reasonably fear for, or be reasonably apprehensive about, her own well-being or safety.
99.The report from Kasim Abaie provides more details as to the alleged conduct of the sponsor which is relied upon for the claim of having suffered relevant family violence. As a result of the claimed behaviour of the sponsor she was reported as experiencing "low mood, anxiety, loneliness, helplessness, and hopelessness''. She is also reported as having sleep disturbances and waking up feeling sad and distressed. At no point does the report from Kasim Abaie claim that the alleged conduct of the sponsor caused the applicant to reasonably fear for, or be reasonably apprehensive about, her own well-being or safety.
The Tribunal concluded at [108] as follows:
The tribunal is not satisfied that evidence of family violence has been presented in accordance with r.1.24(1)(b) and that therefore a non-judicially determined claim of family violence has not been made under r.l.23 for the period during which the applicant and the sponsor were living together in Australia.
In respect of the time when the appellant visited Iran, the Tribunal concluded at [109] as follows:
The statements made by the competent people the applicant has relied upon to make this claim did not refer to the applicant, as a result of the conduct of the sponsor, at that time reasonably fearing for or being reasonably apprehensive about, her own well-being or safety due to that conduct.
These conclusions of the Tribunal were sufficient for it to affirm the decision not to grant the visa.
However, the Tribunal examined an alternative basis in respect of part of the claim. The Tribunal considered the evidence of the relationship of the parties, and concluded that the relationship had ended by the time the husband left to return to Iran on 19 June 2010. The reference in [109] of the Tribunal’s decision to November 2010 is an obvious typographical error. The Tribunal found that from 19 June 2010 the appellant and her sponsor did not have a mutual commitment to a shared life as husband and wife to the exclusion of all others. The Tribunal held that, consequently, they were no longer in a “married relationship” within the meaning of s 5F(2) of the Migration Act 1958 (Cth). Regulation 1.23(12) provided that the appellant was not entitled to a visa unless the family violence occurred whilst the marriage relationship existed. Thus, any family violence which occurred after 19 June 2010, including the period the appellant spent in Iran, would not be family violence which occurred within the married relationship, and would not qualify the appellant for the grant of the visa.
THE FEDERAL CIRCUIT COURT’S JUDGMENT
On 23 April 2015, the appellant filed an application for review in the Federal Circuit Court.
The Federal Circuit Court considered and rejected several arguments concerning the alternative basis of the Tribunal’s decision. The Federal Circuit Court then said at [28]:
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.l.26(c), there was no evidence given in accordance with reg.1.24. In 1ight of that, there could be no "non-judicially determined claim of family violence": sub-reg.l.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.l.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.
The Federal Circuit Court concluded at [32] that:
[T]he applicant has not established any jurisdictional error in the Tribunal’s decision [and] the application must be dismissed.
THE APPEAL
On 15 March 2016, the appellant filed a notice of appeal from the orders of the Federal Circuit Court. At the hearing of the appeal, leave was granted to the appellant to file an amended notice of appeal.
The amended notice of appeal challenged the conclusions of the Federal Circuit Court concerning the alternative basis of the Tribunal’s decision. Those challenges should not be accepted. The Federal Circuit Court was correct in rejecting the appellant’s argument on those issues. It is not necessary to say more about those arguments because counsel for the appellant provided no answer to the insuperable difficulty that the appellant did not present two statutory declarations as required by reg. 1.24(1)(b). Without them, the appellant did not satisfy the requirements for the grant of the partner visa. In this respect, the decision of the Tribunal was correct, and the decision of the Federal Circuit Court upholding it was also correct.
It follows that the appeal is dismissed.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North. Associate:
Dated: 2 June 2016
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