Doan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 1066
•18 June 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Doan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1066
File number(s): SYG 2664 of 2019 Judgment of: JUDGE DRIVER Date of judgment: 18 June 2021 Catchwords: MIGRATION – review of Administrative Appeals Tribunal decision – refusal of a partner visa – relationship ended but the applicant claiming family violence – relationship found not to be genuine – whether the Tribunal misconstrued the relevant criterion considered – no jurisdictional error Legislation: Migration Act 1958 (Cth) ss 5CB, 5F
Migration Regulations 1994 (Cth)
Cases cited: El Jejieh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1103
Hanna v Minister for Immigration and Border Protection [2016] FCA 282
He v Minister for Immigration and Border Protection (2017) 255 FCR 41
Hossam v Minister for Immigration and Border Protection [2016] FCA 1161
Kaur v Minister for Immigration and Border Protection [2014] FCA 1251
Liu v Minister for Immigration and Border Protection [2019] FCCA 1638
Malhi v Minister for Immigration and Border Protection (2017) 318 FLR 234
Minister for Immigration and Border Protection v Angkawijaya (2016) 236 FCR 303
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421
Minister for Immigration and Border Protection v Truong [2016] FCAFC 54
Nguyen v Minister for Home Affairs [2019] FCAFC 128
Number of paragraphs: 49 Date of hearing: 18 May 2021 Place: Sydney Counsel for the Applicant: Ms M Yu Solicitors for the Applicant: TQH Lawyers and Consultants Counsel for the Respondents: Ms K Hooper Solicitor for the Respondents: Minter Ellison ORDERS
SYG 2664 of 2019 BETWEEN: THI THU DOAN
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE DRIVER
DATE OF ORDER:
18 JUNE 2021
THE COURT ORDERS THAT:
1.The application filed on 16 October 2019 is dismissed.
REASONS FOR JUDGMENT
JUDGE DRIVER:
INTRODUCTION AND BACKGROUND
The applicant, Ms Doan, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 3 October 2019. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant Ms Doan a partner visa. The following statement of background facts is derived from the submissions of the parties.
Ms Doan is a now-58-year-old national of Vietnam who first arrived in Australia in December 2015 on a visitor visa. She met her sponsor, an Australian citizen of Vietnamese descent in February 2015 and the two married on 10 January 2016 in Sydney. On 19 January 2016, Ms Doan applied for a subclass 820/801 partner visa on the basis of being the spouse of her sponsor[1].
[1] CB 1-33
On 6 June 2017 Ms Doan submitted documents to the Minister’s Department raising a non‑judicially determined claim of family violence, and seeking to meet the criterion for the grant of a subclass 820 visa in clause 820.221(3) of the Migration Regulations 1994 (Cth) (Regulations)[2]. Those documents, which included statutory declarations and reports from Ms Doan herself, clinical psychologists and social workers stated that, among other things, the relationship had ceased in February 2017 and that Ms Doan began suffering family violence from the time she and her sponsor married and began living together[3].
[2] CB 320-347
[3] CB 325
In her statutory declaration[4], Ms Doan gave examples of incidences of family violence suffered including:
(a)being forced to give the sponsor money she had earned to spend on alcohol, gambling and smoking;
(b)being yelled at and called names like “slave” by the sponsor;
(c)having things thrown at her and being physically hit by the sponsor;
(d)being forced to clean the sponsor’s urine off the floor;
(e)being the subject of threats made by the sponsor, including threats to call the Minister’s Department and have her visa cancelled; and
(f)being threatened with a knife by the sponsor who said that he would kill her.
[4] at CB 325
A report prepared by psychologist Zeinab Allaw dated 20 February 2017 concluded that Ms Doan suffered from major depressive disorder with features of anxiety, the symptoms of which stemmed from the reported abuse endured in her relationship with the sponsor[5]. In a report prepared in the form of a statutory declaration by social worker/counsellor Lisa Laba Sarkis dated 21 December 2016, Ms Laba Sarkis observed that Ms Doan had symptoms of post‑traumatic stress disorder, in addition to symptoms of depression and anxiety[6]. Both reports included accounts of the development of Ms Doan’s and the sponsor’s relationship.
[5] CB 335
[6] CB 341
By letter dated 19 June 2017, Ms Doan was invited to provide evidence that she was the spouse or de facto partner of her sponsor, prior to their relationship ending[7]. Ms Doan provided a response dated 14 July 2017[8].
[7] CB 355
[8] CB 389-416
On 28 August 2017 the delegate refused to grant Ms Doan a subclass 820 visa on the basis that clause 820.211(2)(a) of the Regulations was not met[9]. In doing so, the delegate was not satisfied that Ms Doan had ever been the spouse or de facto partner of her sponsor, as defined in ss 5F and 5CB of the Migration Act 1958 (Cth) (Migration Act)[10].
[9] CB 460-464
[10] CB 463-464
Ms Doan sought review of the delegate’s decision by application to the Tribunal lodged on 11 September 2017[11].
[11] CB 458
By email dated 22 July 2019, Ms Doan provided written submissions to the Tribunal, together with enclosures[12]. She provided further submissions by email dated 29 July 2019[13].
[12] CB 527
[13] CB 559
Ms Doan attended a hearing before the Tribunal on 30 July 2019[14] at which she gave evidence and presented arguments on the issues arising in relation to the review.
[14] CB 562
On 20 August 2019, Ms Doan provided additional material in support of her review application[15].
[15] CB 572
On 3 October 2019, the Tribunal made its decision[16]. The Tribunal identified certain material before it, and the issues for consideration. The Tribunal stated at [16][17]:
The principal issues in this case are:
a)whether [the sponsor] was at any time the spouse or de facto partner of the applicant; if so,
b) whether [the sponsor] continues to sponsor the applicant; if not,
c) did the sponsorship cease because [the sponsor] has died, or family violence has occurred, or a child is involved?
[16] CB 599
[17] CB 602 [16]
The Tribunal found, as was not disputed, that Ms Doan was not the spouse of the sponsor at the time of its decision. The Tribunal observed that Ms Doan sought to satisfy the criteria for the grant of the visa on the basis that her relationship with the sponsor was genuine at the time of the application, that it had ceased, and that she suffered family violence by the sponsor[18]. However, the Tribunal said that in order for it to be satisfied that family violence was taken to have occurred under regulation 1.23, it was necessary for the Tribunal to consider whether the reported violence occurred whilst the parties were in a relationship[19]. The Tribunal stated at [34][20]:
The provisions of cl.820.221(3) indicate that a relevant genuine partner relationship within the meaning of the Act must have existed prior to the relationship ceasing and the applicant would have otherwise met the criteria in cl.820.221(2). This means that, while any claims of family violence do not have to cause the cessation of the relationship, any relationship which has ceased must have been one which would have otherwise met the requirements of the relevant legislation.
[18] CB 605 [32]
[19] at CB 605 [33]
[20] at CB 605
The Tribunal stated that before assessing whether Ms Doan has suffered relevant family violence[21], the Tribunal must assess whether at any point of time she and her sponsor were in a spousal or de facto relationship within the meaning given to it in the Regulations.[22]
[21] at CB 605 [35]
[22] See also CB 606 [38]
The Tribunal considered each of the regulation 1.15A(3) factors in turn[23]. In the context of assessing the nature of the persons’ commitment to one another (regulation 1.15A(3)(d)), the Tribunal considered how the evidence provided in support of the family violence claim might bear on its state of satisfaction concerning whether there existed a spousal relationship[24].
[23] from CB 607
[24] from CB 614 [89]
The Tribunal found that it was not satisfied that the evidence established that the parties had a mutual commitment to a shared life as husband and wife, to the exclusion of others[25]. The Tribunal stated that it was “the lack of mutuality which is a prominent feature of this case”. That is to say, the sponsor did not appear to have contributed to the relationship financially, emotionally or at a practical level. There was no credible evidence to support the proposition that there was “mutual emotional support or companionship in the relationship” and Ms Doan had provided inconsistent evidence as to when disharmony and abuse commenced[26].
[25] CB 615 [92]
[26] CB 615 [92]
The Tribunal found that, “[w]hen considered cumulatively and in the face of the numerous concerns raised in this decision, there is insufficient evidence to support the applicant’s claims about the nature of her relationship with [the sponsor]”[27]. The Tribunal was not satisfied that, at the time of the visa application, or at any time until the claimed cessation of the relationship in February 2017, Ms Doan and her sponsor had a mutual commitment to a shared life to the exclusion of others, or a genuine and continuing relationship, or that they lived together or not separately and apart on a permanent basis[28]. Therefore, s 5F(2) and clause 820.211(2)(a) were not met[29].
[27] CB 615 [94]
[28] CB 615 [95]
[29] at CB 615 [96]-[97]
The Tribunal stated at [98][30]:
Other considerations
As has been discussed elsewhere in this decision, the applicant has claimed that she suffered family violence committed by … the sponsoring partner, during the period she claims they were in a spousal relationship. As is indicated above, in order to rely upon a claim that the applicant satisfies the criteria in cl.820.221(3). The applicant must show that she would meet the requirements of cl.820.221(2), including the requirement of being the spouse or de facto partner of the sponsoring partner, …, except that the relationship has ceased. As the Tribunal has found that the applicant and [the sponsoring partner] were never in a spousal relationship as defined in s.5F of the Act, the applicant does not meet the criteria in cl.820.221(3). It is therefore not necessary for the Tribunal to further consider the claim of family violence.
[30] at CB 616
THE CURRENT PROCEEDINGS
These proceedings began with a show cause application filed on 16 October 2019. Ms Doan continues to rely upon that application. There is one particularised ground in that application:
1.The Second Respondent (the Tribunal) misconstrued the expression ‘genuine and continuing’ as contained in s.5F(2)(c) of the Migration Act 1958 (Cth).
Particulars
a. The Applicant applied for a Subclass 820/801 visa on 19 January 2016 on the basis of her married relationship with her sponsor. That relationship ceased in February 2017 and the Applicant submitted documents in support of a non-judicially determined claim of family violence.
b. After considering the matters in r.1.15A(3) of the Migration Regulations 1994, the Tribunal found that the Applicant and her sponsor were never in a spousal relationship as defined in s.5F of the Act. In doing so, the Tribunal found that, among other things, the following factors were not indicative of a genuine and continuing relationship:
i.at [57]-[59] of is decision – the absence of pooling of financial resources;
ii.at [70]-[71] of its decision – the lack of division of housework responsibilities and the nature of the household arrangements;
iii.at [74] and [81] of its decision – there was little evidence of the parties representing themselves as a couple to the community at large, or to government agencies or non-government businesses;
iv.at [86] of its decision – the existence of disharmony and abuse in the relationship.
c. The Tribunal records at [59], [80] and [86] that the Applicant had claimed that there was exploitation and abuse in the relationship with her sponsor, including verbal, physical, emotional, psychological and financial abuse at the hands of her sponsor, as well as the fact that the sponsor drank, gambled and otherwise treated her like a slave.
d. In making the findings set out above at (b), the Tribunal misconstrued the definition of a ‘genuine and continuing’ relationship as contained in s.5F(2)(c) of the Act, by incorrectly proceeding on the assumption that such a relationship necessarily had to be of a particular quality, instead of considering the particular circumstances of the Applicant and her sponsor’s relationship such as it was. This was material to the Tribunal’s findings as to the Applicant’s satisfaction of the criteria in cl.820.211(2)(a) and cl.820.221(3) of Schedule 2 to the Migration Regulations 1994. Consequently, its decision to affirm the refusal of the Applicant’s visa was affected by jurisdictional error.
The application is supported by a short affidavit filed with it, which I received. I also have before me as evidence the court book filed on 10 January 2020.
Both Ms Doan and the Minister filed pre-hearing written submissions and made oral submissions through their representatives at the trial on 18 May 2021.
CONSIDERATION
Applicable law
I accept the Minister’s submissions concerning the law to be applied.
The applicable provisions of the Regulations and Migration Act are as follows.
Clause 820.211 and 820.221 contain criteria applicable at the time of the visa application, and time of decision, respectively. Relevantly, they provided:
820.21 Criteria to be satisfied at time of application
820.211
(1) The applicant:
(a) is not the holder of a Subclass 771 (Transit) visa; and
(b) meets the requirements of subclause (2), (5), (6), (7), (8) or (9).
(2) An applicant meets the requirements of this subclause if:
(a) the applicant is the spouse or de facto partner of a person who:
(i)is an Australian citizen, an Australian permanent resident or eligible New Zealand citizen; and
(ii)is not prohibited by subclause (2B) from being a sponsoring partner; and
(c) the applicant is sponsored:
(i)if the applicant’s spouse or de facto partner has turned 18 — by the spouse or de facto partner; or
…
820.22 Criteria to be satisfied at time of decision
820.221
(1)In the case of an applicant referred to in subclause 820.211(2), (5), (6), (7), (8) or (9), the applicant either:
(a) continues to meet the requirements of the applicable subclause; or
(b) meets the requirements of subclause (2) or (3).
…
(3) An applicant meets the requirements of this subclause if:
(a)the applicant would continue to meet the requirements of subclause 820.211(2), (5) or (6) except that the relationship between the applicant and the sponsoring partner has ceased; and
(b) either or both of the following circumstances applies:
(i) either or both of the following:
(A) the applicant;
(B)a dependent child of the sponsoring partner or of the applicant or of both of them;
has suffered family violence committed by the sponsoring partner;
…
Section 5F of the Migration Act defined spouse, as follows:
(1)For the purposes of this Act, a person is the spouse of another person if, under subsection (2), the 2 persons are in a married relationship.
(2) For the purposes of subsection (1), persons are in a married relationship if:
(a)they are married to each other under a marriage that is valid for the purposes of this Act; and
(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.
(3)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 provision in relation to the determination for different purposes whether one or more of those conditions exist.
Regulation 1.15A prescribed matters for the purpose of s 5F, as follows:
(1)For subsection 5F(3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5F(2)(a), (b), (c) and (d) of the Act exist.
(2) If the Minister is considering an application for:
…
(d) a Partner (Temporary) (Class UK) visa;
the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).
(3) The matters for subregulation (2) are:
(a) the financial aspects of the relationship, including:
(i) any joint ownership of real estate or other major assets; and
(ii) any joint liabilities; and
(iii)the extent of any pooling of financial resources, especially in relation to major financial commitments; and
(iv)whether one person in the relationship owes any legal obligation in respect of the other; and
(v)the basis of any sharing of day-to-day household expenses; and
(b) the nature of the household, including:
(i)any joint responsibility for the care and support of children; and
(ii) the living arrangements of the persons; and
(iii) any sharing of the responsibility for housework; and
(c) the social aspects of the relationship, including:
(i)whether the persons represent themselves to other people as being married to each other; and
(ii)the opinion of the persons’ friends and acquaintances about the nature of the relationship; and
(iii)any basis on which the persons plan and undertake joint social activities; and
(d) the nature of the persons’ commitment to each other, including:
(i) the duration of the relationship; and
(ii)the length of time during which the persons have lived together; and
(iii)the degree of companionship and emotional support that the persons draw from each other; and
(iv) whether the persons see the relationship as a long-term one.
…
Division 1.5 of the Regulations contains special provisions relating to family violence. Regulation 1.23 relevantly provided:
Regulation 1.23 - When is a person taken to have suffered or committed family violence?
(1) For these Regulations, this regulation explains when:
(a)a person (the alleged victim) is taken to have suffered family violence; and
(b)another person (the alleged perpetrator) is taken to have committed family violence in relation to the alleged victim.
…
Circumstances in which family violence is suffered and committed — non-judicially determined claim of family violence
…
(9)For these Regulations, an application for a visa is taken to include a nonjudicially determined claim of family violence if:
(a)the applicant seeks to satisfy a prescribed criterion that the applicant, or another person mentioned in the criterion, has suffered family violence; and
(b) the alleged victim is:
(i) a spouse or de facto partner of the alleged perpetrator; or
…
and
(c)the alleged victim or another person on the alleged victim’s behalf has presented evidence in accordance with regulation 1.24 that:
(i) the alleged victim has suffered relevant family violence; and
(ii)the alleged perpetrator committed that relevant family violence.
(10) If an application for a visa includes a non-judicially determined claim of family violence:
(a)the Minister must consider whether the alleged victim has suffered relevant family violence; and
(b)if the Minister is satisfied that the alleged victim has suffered the relevant family violence, the Minister must consider the application on that basis; and
(c)if the Minister is not satisfied that the alleged victim has suffered the relevant family violence:
(i)the Minister must seek the opinion of an independent expert about whether the alleged victim has suffered the relevant family violence;
and
(ii)the Minister must take an independent expert’s opinion on the matter to be correct for the purposes of deciding whether the alleged victim satisfies a prescribed criterion for a visa that requires the applicant for the visa, or another person mentioned in the criterion, to have suffered family violence.
(11)The alleged victim is taken to have suffered family violence, and the alleged perpetrator is taken to have committed family violence, if:
(a)an application for a visa includes a non-judicially determined claim of family violence; and
(b)the Minister is satisfied under paragraph (10)(b) that the alleged victim has suffered relevant family violence.
(12)For subregulation (11), the Minister must be satisfied that the relevant family violence, or part of the relevant family violence, 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.
(13) The alleged victim is taken to have suffered family violence, and the alleged perpetrator is taken to have committed family violence, if:
(a)an application for a visa includes a non-judicially determined claim of family violence; and
(b)the Minister is required by subparagraph (10)(c)(ii) to take as correct an opinion of an independent expert that the alleged victim has suffered relevant family violence.
(14)For subregulation (13), the violence, or part of the violence, that led to the independent expert having the opinion that the alleged victim has suffered relevant family violence 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.
(Minister’s emphasis retained)
Applicant’s contentions
The Full Federal Court in Minister for Immigration and Border Protection v Angkawijaya [31] held that the primary judge did not err in concluding that the Tribunal had misconstrued and misapplied s 5CB of the Migration Act and regulation 1.09A of the Regulations by proceeding on the basis that the existence of love and affection between a visa applicant and sponsor was determinative of whether they were in a “de facto relationship” as defined in s 5CB(2) of the Migration Act. The reasoning in Angkawijaya is equally applicable to the consideration of the definition of a spouse relationship in s 5F(2) of the Migration Act as the language of s 5F(2) of the Migration Act and regulation 1.15A(3) of the Regulations are framed in analogous terms to s 5CB(2) and regulation 1.09A respectively.
[31] (2016) 236 FCR 303 at [1] and [62] Kenny and Griffiths JJ (Allsop CJ agreeing)
In Malhi v Minister for Immigration and Border Protection[32] the Court held that a “genuine” relationship is one that is neither “false nor a sham”. Further[33] the Court stated “[t]he assessment as to whether the relationship is genuine and continuing must focus on the relationship as it is, at the time of the Tribunal decision.”
[32] (2017) 318 FLR 234 at [37]
[33] at [36]
As stated above, the Tribunal found, in considering the regulation 1.15A(3) factors, that the relationship between Ms Doan and her sponsor had never been a genuine or continuing one. However it is said to be apparent from the overall background in which the Tribunal’s reasons were given, that the Tribunal had proceeded on an unstated assumption that the relationship between Ms Doan and her sponsor had to be of a particular (eg an idyllic or harmonious) quality, in order for it to be a genuine relationship. This is said to have been particularly so given that it repeatedly recorded in its decision[34] that Ms Doan had claimed that there was exploitation and abuse in the relationship with her sponsor, including verbal, physical, emotional, psychological and financial abuse at the hands of her sponsor, as well as the fact that the sponsor drank, gambled and otherwise treated her like a slave.
[34] at [59], [80] and [86]
Ms Doan contends that the manner in which the Tribunal assessed the genuineness of her relationship with her sponsor prior to its breakdown was legally incorrect because there is no legal requirement that a genuine and continuing relationship must be of a particular quality[35]. Further, the Tribunal’s reasoning is said to have been inappropriate in circumstances where Ms Doan had claimed to have suffered family violence at the hands of her sponsor, the nature of which would have necessarily affected the quality and dynamics of their relationship, but not necessarily have rendered it a false or sham relationship[36].
[35] Angkawijaya at [1], [62]
[36] see Malhi at [37]
While it may not have been necessary for the Tribunal to address whether Ms Doan met the criterion in clause 820.221(3) in circumstances where it was not satisfied that there was a married relationship between her and her sponsor as defined in s 5F(2) of the Migration Act,[37] the evidence before the Tribunal was that Ms Doan had begun suffering family violence in as early as January 2016[38]. In these circumstances, she contends that it was not open to the Tribunal to artificially divorce, ignore, or diminish, the evidence of the family violence that she suffered from the evidence of her claimed relationship with her sponsor, in considering whether their relationship possessed the requisite characteristics in s 5F(2) of the Migration Act. This is particularly relevant given the timing, duration, and nature of the claimed violence.
[37] See for example, Liu v Minister for Immigration and Border Protection [2019] FCCA 1638 at [24]-[25] (Judge Manousaridis).
[38] ie from the time that she and her sponsor were married and began living together
Ms Doan submits that the Tribunal’s error was material to the outcome of the Tribunal’s decision because had the Tribunal correctly assessed the statutory criteria in regulation 1.15A(3) and s 5F(2), it may have made a difference to the outcome of the review[39]. However as this error did not involve any allegation of procedural unfairness, it may be unnecessary for the Court to decide whether this error may have affected the outcome of the Tribunal’s decision[40].
[39] Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at [48]
[40] see Nguyen v Minister for Home Affairs [2019] FCAFC 128 at [45]-[46]
Resolution
I prefer the Minister’s submissions on the issues to be resolved. Angkawijaya and Malhi are readily distinguishable on their facts. While it would be an error for the Tribunal to apply some artificial template or expectation as to the elements of a genuine relationship, in the present matter the Tribunal did not fall into that error.
The Tribunal did not commit jurisdictional error by considering whether the parties were ever in a spousal relationship as defined by s 5F and, having found they were not, not then proceeding to consider whether Ms Doan satisfied the criteria for the grant of the visa on the basis of the family violence exception to continued satisfaction of the criterion for the grant of the visa, that she be sponsored by her spouse.[41]
[41] Ms Doan appears to concede this in her written submissions but the Minister nevertheless addresses the issue in accordance with his obligation to act as a Model Litigant in the proceedings.
The following authorities support this proposition.
(a)Kaur v Minister for Immigration and Border Protection[42] (set out in the quotation immediately below).
[42] [2014] FCA 1251 per Murphy J at [43]-[44]
(b)Minister for Immigration and Border Protection v Truong[43]:
[43] [2016] FCAFC 54 at [46], per Tracey, Flick and Griffiths JJ
As this statutory structure makes clear, there is “little utility” in considering the issue of “family violence” for the purposes of cl 820.221(6)(c) unless the spousal relationship is first established: Kaur v Minister for Immigration and Border Protection [2014] FCA 1251. In the context of considering a like requirement imposed by cl 820.221(3), Murphy J there concluded:
[43]As I have said, the Tribunal was not satisfied that the appellant and her sponsor were in a genuine spousal relationship at the time of the visa application. I consider that the Tribunal was not obliged to consider the issue of family violence …
[44]In the context of an application for a partner visa there is little utility in considering the issue of family violence unless a spousal relationship for the purposes of 820.211(2) is first established. As the Tribunal found that the appellant failed to establish the necessary relationship at the time of the visa application, there was no requirement for it to assess the issue of family violence.
An application seeking special leave to appeal to the High Court of Australia was dismissed: Kaur v Minister for Immigration and Border Protection [2015] HCASL 27. In dismissing that application, Hayne and Nettle JJ observed that there was “no reason to doubt the correctness of the conclusions reached…”.
(c)Hanna v Minister for Immigration and Border Protection[44]:
As explained at [52]-[55] of the reasons of the primary judge, and as the Tribunal explained to the appellant during the oral hearing before it, the family violence exception is only engaged where the decision-maker is satisfied that a spousal or de facto relationship within the meaning of s 5F of the Act existed between the sponsor and the visa applicant before the relationship ceased. The Tribunal found that no such relationship existed at any time, with the consequence that the question of family violence did not arise for consideration (as in Kaur v Minister for Immigration and Border Protection[2014] FCA 1251 at [43]- [44]). The primary judge’s conclusion to this effect at [54]-[55] is correct.
(d)Hossam v Minister for Immigration and Border Protection[45]:
In those circumstances, the Tribunal was not satisfied that the appellant was in a spousal relationship pursuant to reg 1.15A of the Regulations at the time of his application, and therefore the appellant did not meet cl 820.211(2)(a) and s 5F(2) of the Act (at [19]). The Tribunal also observed with respect to his claim to have suffered family violence that to meet the criterion in cl 820.221(3)(a), a positive finding was required that he was the spouse of the sponsoring partner at the time of application and would have continued to the time of decision save that the relationship has ended and family violence has occurred (at [21]). As the Tribunal had found that no such relationship existed at the time of application, it followed that the issue of domestic violence did not arise: cf Kaur v Minister for Immigration and Border Protection[2014] FCA 1251.
[44] [2016] FCA 282 per Jagot J at [23]
[45] [2016] FCA 1161 per Perry J at [24]
The Minister’s submissions also dealt with the decision of the Federal Court in El Jejieh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[46]. That was a case dealing with different, although somewhat similar, visa criteria for a different category of partner visa. In the present case, it was not disputed between the parties that Ms Doan needed to satisfy the relevant visa criteria both at the time of application and time of decision.
[46] [2020] FCA 1103
The application alleges that the Tribunal misconstrued the expression “genuine and continuing” as contained in s 5F(2)(c). That is of course one part of a cumulative definition that requires, among other things, that the parties to the marriage “have a mutual commitment to a shared life as husband and wife to the exclusion of all others…” (emphasis added).
Furthermore, regulations pursuant to s 5F(3) provide for mandatory considerations when a decision-maker is deciding whether one or more of the conditions in ss 5F(2)(a), (b), (c) or (d) are met.[47] The Tribunal was not at large to disregard the matters it set out in its decision record by reference to the regulation 1.15A(3) prescribed considerations (and sub-considerations[48]).
[47] regulation 1.15A(3)
[48] see He v Minister for Immigration and Border Protection (2017) 255 FCR 41, Tribunal at CB 606 [40]
The Tribunal did not misconstrue the relevant law, nor fail to consider any of the circumstances of the relationship. Indeed, it expressly had regard to the evidence advanced in support of the family violence claim, in so far as it was capable of bearing on the issue of the genuineness of the parties’ relationship prior to its cessation.
As noted above, Angkawijaya is factually distinguishable. In that case, the Full Federal Court dismissed the Minister’s appeal from my decision in which it was held that the Tribunal had erred in imposing “its own value judgment in applying the relevant legislative provisions”[49]. Chief Justice Allsop concluded that a “couple may have a commitment to each other to a shared life together as partners in the absence of what one might call emotional or romantic love”[50]. Justices Kenny and Griffiths set out the issues on appeal[51]. Their Honours held that, whilst whether or not there is love and affection in a claimed de facto relationship is a permissible consideration. However, the existence or absence of these aspects of a relationship should not be treated as dispositive[52].
[49] at 305[6]
[50] at 304[3]
[51] at 316[49]
[52] at 317[52]-[53]
Their Honours[53] stated that they were not in full agreement with all of my language in upholding the application. Their Honours did not consider that it was apt to describe the Tribunal’s error as involving the imposition of a value judgement. The task of the decisionmaker pursuant to s 65 (emphasis added):
focuses on the question whether the requisite state of satisfaction exists in relation to compliance with the prescribed criteria for the grant of a partner visa. An assessment of the various matters and considerations which are relevant to the application of s 5CB and reg 1.09A necessarily involves an evaluation of those matters and considerations on the part of the relevant decision-maker, who must balance them against each other having regard to all the relevant circumstances. …
[53] at 321[61]
The task entrusted to the present Tribunal was to make findings of fact directed to, among other things, ss 5F(2)(b), (c) and (d) of the Migration Act, informed by the considerations in regulation 1.15A(3) of the Regulations. That included, among other things, an assessment of factors such as the financial aspects of the relationship, and the nature of the parties’ commitment to each other.
The Tribunal made findings addressing these mandatory considerations. They were findings open on the evidence and were relevant to the ultimate conclusion reached, as to whether Ms Doan satisfied s 5F(2) and clause 820.211(2)(a) of the Regulations. The Tribunal’s decision in the instant case was also not fixated on the absence of “romantic love” or similar, between the parties. Certainly, it did not treat this as dispositive as the Tribunal in Angkawijaya did.
Paragraphs [59], [80] and [86] simply reflect the Tribunal considering the evidence concerning the circumstances of this particular relationship, as put to it. Contrary to Ms Doan’s submissions, they also show a recognition and consideration by the Tribunal of the claim the dynamics of this relationship were impacted by the alleged family violence.[54]
[54] See in particular CB 609 [59]; CB 605-606 [36]-[38]
Accepting that a “genuine” relationship cannot be one that is found to be a “sham”[55] that the relationship is not found to be a sham does not mean the legislative definition is automatically met. Section 5F(2) identifies the requirements that must be found to be present, for persons to be in a ‘married relationship’. Regulation 1.15A(3) then further prescribes considerations for the purpose of determining whether one or more of the conditions in s 5F(2)(a), (b), (c) and (d) of the Migration Act exist.
[55] Malhi at [37]
Mahli is also factually distinguishable[56] and concerned the dispositive emphasis the Tribunal placed on the age difference between the parties, the incapacity of the sponsor to bear children and the absence of a meaningful or mature discussion about the question of children at the commencement or early on in the relationship.
[56] the error there is described at [57]-[58]
CONCLUSION
Ms Doan has failed to establish that the decision of the Tribunal is affected by any jurisdictional error. It is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Driver. Associate:
Dated: 18 June 2021
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