Dang v Minister for Immigration
[2016] FCCA 1299
•25 May 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DANG & ORS v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 1299 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Partner Migrant (Class BC) visa – whether the Tribunal took irrelevant considerations into account – whether the Tribunal failed to apply the relevant legislation – whether the Tribunal failed to take into account all relevant circumstances – no jurisdictional error identified – amended application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5F, 476 Migration Regulations 1994, reg.1.15A(3), Schedule 2, cl.100.221 |
| Cases cited: Angkawijaya & Anor v Minister for Immigration & Anor [2015] FCCA 450 |
| First Applicant: | TRANG PHUONG DANG |
| Second Applicant: | THI MINH TRANG THAI |
| Third Applicant: | THI THUY TRANG NGUYEN |
| Fourth Applicant: | HUY HOANG NGUYEN |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | ADG 462 of 2015 |
| Judgment of: | Judge Street |
| Hearing date: | 25 May 2016 |
| Date of Last Submission: | 25 May 2016 |
| Delivered at: | Adelaide |
| Delivered on: | 25 May 2016 |
REPRESENTATION
| Solicitors for the Applicants: | Ms McGrath McDonald Steed McGrath |
| Solicitors for the First Respondent: | Ms Stokes Australian Government Solicitors |
ORDERS
Leave is granted to file in court an amended application and the Court dispenses with the need to file an electronic copy.
The amended application is dismissed.
The first applicant pay the costs of the first respondent fixed in the amount of $6,825.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
ADG 462 of 2015
| TRANG PHUONG DANG |
First Applicant
| THI MINH TRANG THAI |
Second Applicant
| THI THUY TRANG NGUYEN |
Third Applicant
| HUY HOANG NGUYEN |
Fourth Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Tribunal made on 18 November 2015 affirming a decision of the delegate not to grant the applicant a Partner Migrant (Class BC) visa.
The first applicant is a citizen of Vietnam and lodged an application for a visa on 20 December 2011 on the basis of being in a spousal relationship with an Australian citizen. The applicant’s three children are named as secondary applicants to the visa application as dependents of the applicant. On 5 July 2012, the applicants were granted a subclass 309 visa as the department was satisfied at the time the applicant and sponsor were in a genuine and continuing relationship and first arrived in Australia on 9 November 2012.
On or about 21 December 2012, the sponsor informed the Department that he wished to withdraw his sponsorship as the relationship had broken down. On 30 January 2013, an intervention order was made against the sponsor in the Magistrates Court of South Australia and on 8 November 2013 the intervention order was dismissed. The applicant then lodged a family violence claim and supporting documents on 8 April 2013. The Department referred the matter to an expert for an independent assessment and, on 9 October 2014, the expert provided an opinion that the applicant was not the victim of family violence. On 27 November 2014, the delegate refused to grant the visas.
On 10 December 2014, the applicant lodged an application for review. The applicant appeared before the Tribunal to give evidence and present arguments on 14 October 2015 and was represented by her migration agent. The Tribunal identified the requirements of cl.100.221(4) and, in particular, subclause (2) and (2A) of cl.100.221, which require, among other things, that at the time of the decision the applicant is the spouse or de facto of the sponsoring partner.
The Tribunal identified the definition of spouse in s.5F and the requirements, in particular, under s.5F(2)(a) to (d). The Tribunal identified that in determining whether the particulars, under s.5F(2)(a) to (d), were made out, the Tribunal had to take into account reg.1.15A(3). It is apparent from the Tribunal’s reasons that the Tribunal engaged in an orthodox consideration of the requirements of s.5F and each of the considerations raised under reg.1.15A.
The Tribunal made a finding that it was not satisfied on the evidence that the applicant and the sponsor were in a genuine and continuing spousal relationship. It was in those circumstances the Tribunal was not satisfied that the criteria, under subclause (2) or (2A) of cl.100.221, were met and it was in those circumstances that the Tribunal concluded that the applicant did not meet the requirements of cl.100.221 and did not satisfy the criteria for the grant of a visa and affirmed the decision of the delegate.
The grounds of the amended application are as follows:
1. The Second Respondent has fallen into error by assessing the circumstances and nature of the relationship before and after the abuse concurrently in determining that there was no genuine spousal relationship.
PARTICULARS
1.1 Clause 100.221(4) of Schedule 2 of the Migration Regulations 1994 requires the decision maker to first be satisfied that there was a genuine spousal relationship before considering whether family violence has occurred. Regulation 1.23(11) confirms that the decision maker must be satisfied that the relevant family violence, or part of the relevant family violence, occurred while the spousal relationship existed between the alleged perpetrator and the spouse or de facto partner of the alleged perpetrator. The assessment of the spousal relationship is therefore a distinct assessment from the assessment of family violence, and it must only be established at there was a genuine spousal relationship at the time the abuse commenced. There is no requirement that the spousal relationship continued to be genuine and continuing after the abuse commenced, and the policy intention of the family violence provisions is to ensure that victims are not pressured to remain in abusive relationships.
1.2 The Second Respondent's assessment of the spousal relationship through consideration of the factors set out under s.5F(2)(a)-(d) of the Act clearly reveals that the Second Respondent has considered the nature and circumstances of the relationship after the abuse commenced concurrently when considering whether a genuine spousal relationship existed prior to the abuse commencing.
1.3 The Second Respondent's assessment of the spousal relationship has therefore been unduly and unreasonably influenced by factors that only existed after the abuse commenced.
1.4 Whilst the Second Respondent explicitly acknowledged the judgment in Bretag v Immigration Review Tribunal and Minister of Immigration, Local Government and Ethnic Affairs [1991] FCA 582 (29 November 1991) and stated that care was taken not to be inappropriately influenced by the events that occurred after the applicant's arrival in Australia, the reasoning set out by the Second Respondent plainly reveals this is not the case.
2. The Second Respondent has fallen into the type of error identified in Angkawijaya & Anor v Minister for Immigration & Anor [2015] FCCA 450 through being unduly and unreasonably influenced by the perceived motivation of the Sponsor.
Particulars
2.1 The Second Respondent has made findings regarding the perceived financial motivation of financial motivation of the sponsor for entering the spousal relationship. This finding is relied upon to support the conclusion that the sponsor was not committed to the relationship. This is an irrelevant consideration.
2.2 As identified in Angkawijaya & Anor v Minister for Immigration & Anor [20151 FCCA 450, which reaffirms the decision of the Full Federal Court in the case of Minister for Immigration v Dhillon (1990) FCA 144, the true and only test in relation to a partner visa is whether at the time at which the matter has to be decided it can be said that the parties have a mutual commitment to a shared life as a husband and wife to the exclusion of all others. The reasons for entering into that commitment are immaterial.
2.2.1 The Second Respondent has therefore made an unreasonable value judgment which is beyond the scope of the relevant test. The perceived financial motivation of the Sponsor for entering the relationship can only be determinative if was found to be short-term and therefore inconsistent with a mutual commitment to a shared life as a husband and wife to the exclusion of all others. There has been no finding or assessment of this issue.
3. The Second Respondent committed jurisdictional error in that it asked itself the wrong question, in treating the matters at Migration Regulation 1.15A(3) as “other requirements” to be met for a spousal relationship to exist, rather than treating the factors contained in that regulation as making provision in relation to the determination of whether one or more of the conditions in the definition of “spouse” as defined in Section SF of the Migration Act exists
In relation to ground 1, Ms McGrath of counsel sought to argue that the Tribunal had impermissibly taken into account events after arriving in Australia and commencement of family violence in determining whether or not the criteria, under cl.100.221, were made out in respect of subclause (4).
Counsel contended that the reference by the Tribunal, from the context of considering financial aspects of the relationship to what had occurred after arrival in Australia, was an irrelevant consideration of a kind that amounted to jurisdictional error. I reject that submission.
The Tribunal, under reg.1.15A, is required to take into account all of the circumstances. It cannot be said that the consideration by the Tribunal of what occurred after arrival in Australia was an irrelevant consideration of a kind giving rise to jurisdictional error. It was not necessary for the Tribunal to determine whether there was family violence in the present case, as the Tribunal found that there was not a spousal relationship within the meaning of s.5F.
Counsel for the first respondent relied upon other references, within the Tribunal’s reasons, to conduct after arrival in Australia. Those other references are entirely consistent with the Tribunal properly considering the criteria under reg.1.15A and have a logical and probative nexus. No jurisdictional error of the kind alleged in ground 1 is made out.
In relation to ground 2, counsel for the applicant referred to para.36 of the Tribunal’s reasons where reference was made in considering the financial aspects of the relationship to the applicant’s financial motive. I do not accept that the Tribunal was engaging in a value judgment on the motivation for the relationship of the kind that manifested error discussed in Angkawijaya & Anor v Minister for Immigration & Border Protection & Anor [2015] FCCA 450. The reference to financial motive was relevant and probative of the criteria being considered by the Tribunal.
The Tribunal did not determine the question of spousal relationship by reference to the issue of love within the marriage or by reference to the issue of the motive of one party or the other. The Tribunal engaged in an orthodox analysis of the criteria that had to be applied under the regulations and under the statutory provision. Ground 2 fails to make out any jurisdictional error.
In relation to ground 3, counsel for the respondent focused on the heading of “Other Requirements” in the Tribunal’s reasons and suggested that, in substance, the Tribunal had engaged in a jurisdictional error by determining the question of whether the applicant was a spouse by reference to an erroneous question of consideration only of reg.1.15A(3). There is nothing in the Tribunal’s reasons to suggest that the Tribunal engaged in any such error in its reasoning and determination. The reference to “Other Requirements” was a logical identification of the other considerations that the Tribunal was mandatorily required to take into account.
There is nothing to suggest that the Tribunal did not fully appreciate the need to consider all of the circumstances and, relevantly, each of the matters identified under s.5F(2). The reasoning of the Tribunal is consistent with the Tribunal considering all the requirements in relation to s.5F(2) and under the regulations. No jurisdictional error of a kind, alleged in ground 3, is made out. The amended application is dismissed.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Street
Associate:
Date: 1 June 2016
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