Gupta v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FCA 1550
•21 December 2022
FEDERAL COURT OF AUSTRALIA
Gupta v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1550
Appeal from: Gupta v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 60 File number: VID 108 of 2022 Judgment of: MOSHINSKY J Date of judgment: 21 December 2022 Catchwords: MIGRATION – partner visa – where the visa applicant (the appellant) and the sponsor were married for approximately three months – where the Tribunal was not satisfied that the appellant was the “spouse” or “de facto partner” of the sponsor at the time of the application for the visa – whether the Tribunal fell into jurisdictional error by failing to give the matter “proper, genuine and realistic consideration” or engage in an “active intellectual process” – held: appeal dismissed Legislation: Migration Act 1958 (Cth), ss 5F, 5CB
Migration Regulations 1994 (Cth)
Cases cited: Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352
EFZ21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1033
He v Minister for Immigration and Border Protection (2017) 255 FCR 41
Singh v Minister for Home Affairs (2019) 267 FCR 200
Division: General Division Registry: Victoria National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 59 Date of hearing: 1 September 2022 Counsel for the Appellant: Ms S Finegan Solicitor for the Appellant: Vernon Da Gama & Associates Counsel for the First Respondent: Mr AC Roe Solicitor for the First Respondent: Australian Government Solicitor Solicitor for the Second Respondent: The second respondent filed a submitting notice save as to costs ORDERS
VID 108 of 2022 BETWEEN: MAHAK GUPTA
Appellant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
MOSHINSKY J
DATE OF ORDER:
21 DECEMBER 2022
THE COURT ORDERS THAT:
1.The appellant have leave to rely on the ground set out in the amended notice of appeal filed 11 August 2022.
2.The appeal be dismissed.
3.The appellant pay the first respondent’s costs of the appeal, to be fixed by way of a lump sum.
THE COURT DIRECTS THAT:
4.By 4.00 pm on 31 January 2023, the parties file any agreed proposed minute of orders fixing a lump sum in relation to the first respondent’s costs.
5.In the absence of any agreement:
(a)within a further 14 days, the first respondent file and serve an affidavit constituting a Costs Summary in accordance with paragraphs 4.10 to 4.12 of the Court’s Costs Practice Note (GPN‑COSTS);
(b)within a further 14 days, the appellant file and serve any Costs Response in accordance with paragraphs 4.13 to 4.14 of the Costs Practice Note (GPN‑COSTS); and
(c)in the absence of any agreement having been reached within a further 14 days, the matter of an appropriate lump sum figure for the first respondent’s costs be referred to a Registrar for determination.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
MOSHINSKY J:
Introduction
The appellant, who is a citizen of India, arrived in Australia on 31 August 2015 on a visitor visa. On 30 November 2015, the appellant applied for a Partner (Temporary) (Class UK) (Subclass 820) visa and a Partner (Residence) (Class BS) (Subclass 801) visa (together, the visas).
On 2 May 2016, a delegate of the first respondent (the Minister) refused the appellant’s application for the visas.
The appellant applied to the Administrative Appeals Tribunal (the Tribunal) for review of the delegate’s decision. On 26 October 2017, the Tribunal affirmed the decision of the delegate.
The appellant applied to the Federal Circuit and Family Court of Australia (Division 2) (the Federal Circuit Court) for judicial review of the Tribunal’s decision. The application for judicial review was dismissed.
The appellant appeals to this Court from the judgment of the Federal Circuit Court.
For the reasons that follow, I have concluded that the appeal should be dismissed.
Background facts
The following statement of the background facts is substantially based on the reasons for judgment of the primary judge.
On 26 November 2015, the appellant married a person who I will refer to as “Mr K”.
On 30 November 2015, the appellant applied for the visas on the grounds of being in a partner relationship with Mr K, who was an Australian permanent resident and who sponsored the application. In support of the appellant’s application for the visas, both the appellant and the sponsor made statutory declarations.
On or about 15 February 2016, the appellant and Mr K separated.
On 3 March 2016, the sponsor notified the Department that he wished to withdraw his sponsorship of the appellant’s visa application. When invited by the Department to comment on the reason for the breakdown of her marriage, the appellant (through her lawyers) provided submissions dated 28 March 2016 that identified family violence allegedly committed by the sponsor as the reason for the separation.
On 30 March 2016, the Department invited the appellant to provide evidence that she was the “spouse” or “de facto partner” (each defined expressions, set out below) of the sponsor before their relationship ended in February 2016.
On 26 April 2016, the appellant’s lawyers sent an email to the Department which stated that the appellant was the spouse of the sponsor, and attached a certified copy of the applicant’s marriage certificate.
On 2 May 2016, a delegate of the Minister refused the appellant’s application for the visas. The application was rejected because the delegate found that the evidence and information provided by the appellant was not sufficient to demonstrate that she was the “spouse” or “de facto partner”, as defined in the Migration Act 1958 (Cth), of the sponsor at the time of the application.
On 24 May 2016, the appellant applied to the Tribunal for review of the delegate’s decision.
On 6 March 2017, the Tribunal invited the appellant to provide further information to support her claims that she and the sponsor were in a spousal or de facto relationship. The appellant provided a responsive submission (prepared by her lawyers) dated 28 March 2017.
On 17 May 2017, the appellant’s lawyers provided the Tribunal with a statement of the appellant outlining the history of her relationship with the sponsor.
On 19 May 2017, the Tribunal conducted a hearing at which the appellant gave evidence and presented arguments assisted by an interpreter in the Hindi language and her representative. The Tribunal also took evidence from the appellant’s sister.
The Tribunal decision
The following summary of the Tribunal’s decision is substantially based on the reasons for judgment of the primary judge.
On 26 October 2017, the Tribunal affirmed the decision under review.
The Tribunal at [9] referred to the definition of “spouse” in s 5F of the Migration Act and noted that in forming an opinion as to the matters identified in the definition, regard must be had to all of the circumstances of the relationship including the matters identified in reg 1.15A(3) of the Migration Regulations 1994 (Cth).
The Tribunal found that the parties had married on 26 November 2015 and, as such, were married to each other under a marriage that was valid for the purpose of the Act as required by s 5F(2)(a) ([12]).
The Tribunal then considered whether the “other requirements for a spousal relationship” were met.
The Tribunal first considered the “financial aspects” ([13]-[38]). The Tribunal at [16]-[28] identified evidence bearing on the issue.
The Tribunal referred to the statutory declarations sworn by the appellant and the sponsor on 27 November 2015 and noted that while the parties might not have been in a position to combine their finances at that exact point, the declarations spoke of future intentions. The Tribunal found that there was “little or negligible evidence” that these future intentions were acted upon ([30]).
The Tribunal referred to the withdrawal of sponsorship by the sponsor and accepted that there was only some three months of the parties being in a legally married situation before the purported breakdown of the marriage. The Tribunal observed that there was still little indication that the financial intentions of the parties were carried out and the possibility that access to records was prevented by a family violence situation did not fully explain this absence, nor did the not unusual circumstance that victims of family violence experience financial control from a partner ([35]-[36]).
The Tribunal gave “lesser weight” to the financial aspect ([38]).
The Tribunal next considered the “nature of the household” ([39]-[45]). In this context, the Tribunal referred to evidence directed to the parties’ domestic arrangements, including evidence from the appellant that she had shared a room with the sponsor, her account of the housework done in the home and gardening performed by the sponsor, the “waking” and “commuting” habits of the parties, and the fact that the parties had a lease in their joint names.
The Tribunal found that there was evidence that the appellant had resided in the home with the sponsor and performed certain household tasks and gave the factor “some limited weight” ([45]).
The Tribunal next considered the “social aspects” of the parties’ relationship ([46]-[58]). In this context, the Tribunal referred to statutory declarations from the appellant’s sister and brother-in-law, and characterised their descriptions of social events as “general and generic” and providing “only limited insight” into the nature of the relationship ([49]-[50]).
The Tribunal referred to some 16 photographs that were before it but noted that they depicted the parties together but no other person. The Tribunal regarded the photos as evidence that the parties knew one another but not as evidence of social recognition ([53]-[54]).
The Tribunal accepted that some joint social activities might have been undertaken by the parties during their relationship, but gave “lesser weight” to the social aspect for the reasons it had identified ([58]).
The Tribunal next considered the “nature of persons’ commitment to each other” ([59]-[72]). In this context, the Tribunal:
(a)gave regard to evidence that, during their period of cohabitation, the parties took care of one another’s needs including cooking and paying essential household expenses ([60]);
(b)noted that there was written evidence before the Tribunal of constant communication of a “close and intimate nature” ([61]);
(c)referred to an exchange between the Tribunal and the appellant during the hearing concerning the parties’ first face-to-face meeting ([62]) and noted that the exchange contrasted with the appellant’s written statement to the Tribunal sent on 17 May 2017 in terms of its identification of where the parties had met for the first time ([63]-[64]); and
(d)referred to and characterised the appellant’s accounts of the second meeting with the sponsor as “also confused”. The Tribunal found the “lack of accurate or consistent recollection of a momentous life event” to be of concern ([66]-[67]).
The Tribunal found that the “minimal corroborating evidence, along with inconsistent recollection about the inception and early days of the relationship” was problematic. Further, the Tribunal found that it was not apparent that both parties saw the relationship as a long-term and exclusive one, or that they had planned a future together as spouses, or that there was companionship and emotional support ([71]-[72]).
The Tribunal found that the parties were married under a valid marriage (satisfying s 5F(2)(a)), but was not satisfied that the appellant and the sponsor had a mutual commitment to a shared life as husband and wife to the exclusion of all others (as required by s 5F(2)(b)) or that the relationship between them was genuine and continuing (as required by s 5F(2)(c)). The Tribunal was not satisfied that the parties were in a spousal relationship, with the result that the appellant did not meet cl 820.211(2) of the Migration Regulations ([103]-[108]).
Since the Tribunal concluded that the parties were never in a genuine spousal relationship, the question of whether the appellant had suffered family violence committed by the sponsor did not arise for consideration ([109]).
The proceeding in the Federal Circuit Court
The appellant was represented at the hearing in the Federal Circuit Court (although by different counsel to the appellant’s present counsel). The appellant relied on a single ground of appeal, which is set out in [29] of the reasons of the primary judge. The ground was:
The Tribunal failed to consider an important submission, being the need to take account of cultural norms.
The primary judge considered, and rejected, that ground. Her Honour’s core reasoning was at [56]-[59]. Given that the present ground is different, it is not necessary to set out her Honour’s reasoning.
The appeal to this Court
In her appeal to this Court, the appellant relies on a single ground of appeal, which is set out in her amended notice of appeal (filed on 11 August 2022), namely:
The Tribunal failed to consider important information and submissions before the Tribunal, being the extensive information about family violence and coercive control perpetrated by the Sponsor against the Appellant.
This is different from the ground relied on in the Federal Circuit Court, although there is some overlap in the material relied on and in the way the argument is presented. As this constitutes a new point on appeal, the appellant requires leave to rely on the new ground. At the hearing of the appeal, the appellant applied for that leave. This was not opposed by the Minister. Given that leave was not opposed, I am prepared to grant the appellant leave to rely on the new ground.
In summary, the appellant contends that the Tribunal fell into jurisdictional error by failing to give the matter “proper, genuine and realistic consideration” or engage in an “active intellectual process” in relation to material that showed that the sponsor had perpetrated family violence and coercive control against the appellant. The appellant contends that this indicated a strong commitment to the appellant, and this supported the case that the appellant was the “spouse” (as defined, see below) of Mr K, the sponsor, at the time of the application. The appellant further contends that the Federal Court Circuit erred by not so holding.
The relevant provisions
The relevant provisions for present purposes are as follows. It should be noted that there are two sets of relevant criteria for the purposes of the application for the Partner (Temporary) (Class UK) visa: (a) those applicable as at the time of application (set out in cl 820.211 of Sch 2 to the Migration Regulations); and (b) those applicable as at the time of the decision on the visa application (set out in cl 820.221).
Clause 820.211(2) (the time of application criteria) provided:
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 an 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
(ii)if the applicant’s spouse has not turned 18—by a parent or guardian of the spouse who:
(A)has turned 18; and
(B)is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and
(d)in the case of an applicant who is not the holder of a substantive visa—either:
(i)the applicant:
(A)entered Australia as the holder of a Subclass 995 (Diplomatic) visa or as a special purpose visa holder who at the time of entry met the requirements of subclause (2A); and
(B)satisfies Schedule 3 criterion 3002; or
(ii)the applicant satisfies Schedule 3 criteria 3001, 3003 and 3004, unless the Minister is satisfied that there are compelling reasons for not applying those criteria.
(Emphasis added.)
The definitions of “spouse” and “de facto partner” are set out in ss 5F and 5CB respectively of the Migration Act. As the appellant was in a married relationship with the sponsor, she did not fall within the definition of “de facto partner”, and that expression can be put to one side. The expression “spouse” was (at the relevant time) defined in s 5F as follows:
5F Spouse
(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.
Note: Section 12 also affects the determination of whether the condition in paragraph (2)(a) of this section exists.
Regulation 1.15A of the Migration Regulations relevantly provided:
1.15A Spouse
(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:
…
(c) a Partner (Residence) (Class BS) visa; or
(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.
Clauses 820.221 (the time of decision criteria) relevantly provided:
(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;
(ii)…
(Emphasis added.)
These provisions were considered by the Full Court of this Court (Siopis, Kerr and Rangiah JJ) in He v Minister for Immigration and Border Protection (2017) 255 FCR 41. The Full Court held that the requirement that the Tribunal “consider” the circumstances in reg 1.15A(3) means that the Tribunal is required to make findings on each of the matters set out in that sub-regulation: at [76]-[77].
Consideration
As noted above, in summary, the appellant contends that the Tribunal fell into jurisdictional error by failing to give the matter “proper, genuine and realistic consideration” or engage in an “active intellectual process” in relation to material that showed that the sponsor had perpetrated family violence and coercive control against the appellant, that this indicated a strong commitment to the appellant, and this supported the case that the appellant was the “spouse” of Mr K, the sponsor, at the time of the application. The appellant further contends that the Federal Court Circuit erred by not so holding.
The appellant submits that: there was extensive evidence before the Tribunal of family violence and coercive control exercised by the sponsor against the appellant; there was evidence that the sponsor’s view of marriage was one of control and submission; while this is not acceptable behaviour in the Australian community, “it is still an indication that the Sponsor had an ongoing mutual commitment to a shared life with the Appellant, to the exclusion of all others”; and “while there were problems with the relationship, this was within the Appellant’s cultural expectations of marriage (until it wasn’t)”.
The appellant submits that: the Tribunal dealt with the various reg 1.15A(3) factors in a compartmentalised fashion; there is no evaluation in the Tribunal’s reasons “of the family violence claims against the Sponsor, nor evaluation of the intentions of the Sponsor when he perpetrated extreme family violence and coercive control against the Appellant”; and the Tribunal therefore erred in its assessment of the specific matters raised by reg 1.15A(3).
The appellant submits that, in failing to address this evidence, the Tribunal did not give the matter “proper, genuine and realistic consideration” or engage in an “active intellectual process” in assessing the relationship between the sponsor and the appellant pursuant to s 5F(2) of the Migration Act: Singh v Minister for Home Affairs (2019) 267 FCR 200 at [30], citing Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352 at [45].
The appellant submits that: as a result of the error, the Tribunal failed to give proper weight to the appellant’s submissions or recognise that, while turbulent, the relationship was in fact one where there was a mutual and ongoing commitment to a shared life, to the exclusion of all others; and the “faulty step” of the Tribunal materially affected the conclusion reached by the Tribunal.
In oral submissions, the appellant’s counsel took the Court to the following pages of the Appeal Book (AB) in support of the above submissions:
·AB 294 (part of a letter from the appellant’s lawyers to the Tribunal dated 14 June 2017);
·AB 256-262 (part of a statement made by the appellant that was attached to an email from the appellant’s lawyers to the Tribunal dated 17 May 2017);
·AB 109 (part of a letter dated 28 March 2016 from the appellant’s lawyers to the Department);
·AB 186 (an email from the appellant’s lawyer to the Tribunal dated 14 March 2017); and
·AB 199-202 (part of a letter from the appellant’s lawyers to the Tribunal dated 28 March 2017).
In the course of the hearing, the appellant’s counsel conceded that there had not been an explicit submission to the Tribunal that the sponsor’s behaviour “was driven by a commitment to the appellant”. However, the appellant’s counsel submitted that, “taken in its totality, this was such an explicit feature of the material before the tribunal, that the tribunal had no option but to consider it in that context” (T5).
I discussed the principles applicable to a ground alleging jurisdictional error by reason of a failure to give the matter “proper, genuine and realistic consideration” or engage in an “active intellectual process” in EFZ21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1033 at [67]-[68]. I refer to and adopt that statement of the applicable principles.
Applying these principles to the facts of this case, I am not satisfied that the Tribunal fell into jurisdictional error.
First, while I accept that the appellant put forward to the Tribunal substantial material alleging that the sponsor had engaged in acts of family violence and coercive control against her, this material was relevant to, and put forward for the purpose of establishing, the “time of decision” criteria; it was not relevant to, and was not put forward for the purposes of establishing, the “time of application” criteria. This is apparent from the letter dated 28 March 2017 from the appellant’s lawyers to the Tribunal (see, in particular, at AB196-197) and from terms of the relevant provisions, set out above. Under cl 820.221 (the time of decision criteria), it was necessary for the appellant either to continue to meet the time of application criteria (relevantly set out in cl 820.211(2)) or to meet the requirements of cl 820.221(2) or (3). In circumstances where the appellant and Mr K had separated and Mr K had withdrawn his sponsorship, the appellant could no longer meet the “time of application” criteria. It was therefore necessary for her to meet the requirements of cl 820.221(2) or (3). Relevantly, this required her to establish that she had suffered family violence committed by the sponsoring partner. Read in context, it was for this reason that the appellant put forward the material on family violence.
Secondly, in considering whether the Tribunal has fallen into jurisdictional error by failing to give the matter “proper, genuine and realistic consideration” or engage in an “active intellectual process”, it is relevant to consider how the material was presented and expressed. In the present case, as is conceded, the appellant did not expressly contend that the material relating to family violence and coercive control was demonstrative of the sponsor’s commitment to the appellant and was thus supportive of the proposition that the relationship met the statutory tests. Further, having considered the material relied on by the appellant for the purposes of the appeal, I am not satisfied that any such contention arose from the material that was presented. Indeed, the proposition now relied on by the appellant is rather counter-intuitive when one considers the allegations that were made against Mr K in the material presented to the Tribunal. In these circumstances, I am not satisfied that the Tribunal fell into jurisdictional error in the manner alleged.
Conclusion
For these reasons, the appeal is to be dismissed. There is no apparent reason why costs should not follow the event. Accordingly, I will make an order that the appellant pay the Minister’s costs of the appeal, to be fixed as a lump sum.
I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Moshinsky. Associate:
Dated: 21 December 2022
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