Guven v MIMIA
[2006] FMCA 311
•24 March 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| GUVEN v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 311 |
| MIGRATION – Review of decision of Migration Review Tribunal – refusal to grant a partner (migrant) (class BC) visa – failure to provided evidence required by Migration Regulations 1994 Reg.1.24 – application dismissed. |
| Migration Regulations 1994 Migration Act 1958 (Cth) |
| Nassouh v Minister for Immigration & Multicultural& Indigenous Affairs (2000) FCA 788 McGuire v Minister for Immigration and Multicultural and Indigenous Affairs (2004) FMCA 1014 Serfonteyn v Minister for Immigration and Multicultural and Indigenous Affairs (2004) FMCA 333 VCAD v Minister for Immigration and Multicultural and Indigenous Affairs (2005) FCAFC 1 |
| Applicant: | MESUT GUVEN |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 1326 of 2005 |
| Judgment of: | Hartnett FM |
| Hearing date: | 1 March 2006 |
| Delivered at: | Melbourne |
| Delivered on: | 24 March 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr M. Gerkens |
| Solicitors for the Applicant: | FCG Legal |
| Counsel for the Respondent: | Mr R.C. Knowles |
| Solicitors for the Respondent: | Phillips Fox |
ORDER
That the application be dismissed.
That the applicant pay the respondent's costs fixed in the sum of $5000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1326 of 2005
| MESUT GUVEN |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
By his application filed with this court on 26 October 2005, the applicant sought judicial review of a decision of the Migration Review Tribunal (the Tribunal) dated 6 October 2005. In that decision the Tribunal affirmed a decision of the first respondent's delegate not to grant the applicant a partner (migrant) (class BC) visa. On 25 January 2006 the applicant filed an amended application which was again amended by the filing of a further amended application on 14 February 2006.
At the commencement of the hearing of this matter this day, the applicant sought leave to rely upon the amended application filed by him on 14 February 2006. The respondent did not object to the applicant relying on that further amended application and I granted leave for the applicant to do so.
The applicant sets out the particulars of his claim (that he was aggrieved by the decision of the second respondent) as follows:
The decision was made without jurisdiction or is affected by an error of jurisdiction:
PARTICULARS
(ii)by the manner in which it conducted the review, the Respondent Tribunal misled the applicant into believing that the only issue requiring determination by the Tribunal was whether or not the subject marriage had broken down irretrievably. It thereby deprived him of the opportunity of effectively addressing the issue upon which the decision was based (ie, the marriage was not genuine in the first place) with the result that the Tribunal failed to meaningfully perform its function under the Act and thereby failed to provide natural justice or procedural fairness;
(iii)in applying Migration Regulations Second Schedule criteria 100.221, the Second Respondent asked itself the wrong question and, thereby applied the wrong test.
Counsel for the applicant indicated to the court at commencement that the proceeding was continuing in relation to a single issue only, being particular (iii) as referred to above.
History
The applicant is a citizen of Turkey. On 28 July 2002 he married his wife, who was at all relevant times an Australian citizen. The marriage occurred in Turkey. At the time of the decision, the wife had initiated divorce proceedings in the Turkish courts.
On 17 June 2003 the applicant lodged with the Department of Immigration and Multicultural and Indigenous Affairs (the department) an application for permanent residence on spouse grounds. The applicant applied for and was granted a spouse (class UF) (partner - provisional) visa subclass 309. This was granted on 10 September 2003. On 29 November 2003 the applicant entered Australia.
On 30 December 2004 the visa applicant's wife, who was the sponsor, advised the department that she wished to withdraw her sponsorship. On 6 January 2005 the department wrote to the visa applicant at his last known address, asking him to contact the delegate in order to discuss the allegations of the sponsor. The visa applicant telephoned the department, subsequently writing to the department, stating that although the sponsor was in Turkey until late 2005, their marriage was continuing. He stated that he and the sponsor were having problems and needed time apart in which to resolve them.
In a decision dated 19 February 2005, the first respondent's delegate was not satisfied that the parties were living together or that their relationship was genuine and continuing, and therefore refused to grant a subclass 100 visa. On 11 March 2005 the applicant lodged with the Migration Review Tribunal an application for review of the delegate's decision. The visa applicant provided additional evidence and submissions, claiming in his review application that:
My relationship was deteriating (sic) due to domestic violence against me by my wife and mother-in-law. Apart from the domestic violence, they were making me go mad sphycologically (sic) by playing with my head and threats as I did not and still dont (sic) know the laws of Australia. I really was abused.
On 26 September 2005 the Tribunal conducted a hearing at which oral evidence was given by the visa applicant (assisted by an interpreter), the sponsor's uncles and her father. At the commencement of those proceedings, the visa applicant handed up a translated copy of a divorce petition lodged by the sponsor in the Turkish courts.
On 6 October 2005 the Tribunal handed down its decision. In its decision the Tribunal affirmed the decision under review, finding that the visa applicant was not entitled to the grant of a partner (migrant) (class BC) visa. The Tribunal found, after a consideration and balancing of the evidence available to it and applying the test outlined in Nassouh v Minister for Immigration and Multicultural and Indigenous Affairs (2000) FCA 788, that it was not satisfied that there was any point in time at which the relationship between the visa applicant and the sponsor could properly be regarded as spousal within the meaning of Regulation 1.15A of the Migration Regulations 1994 (the Regulations).
Accordingly, the Tribunal found that the visa applicant was not the spouse of the sponsoring spouse within the meaning of Regulation 1.15A, as was required by paragraphs 100.221(4)(b) and 100.221(2)(b) of Schedule 2 to the Regulations. Having made that finding, the Tribunal noted that it need not make a finding in relation to the visa applicant's claims of domestic violence which he made before the Tribunal. Nevertheless, the Tribunal then went on to a consideration of the adequacy of the evidence furnished by the visa applicant in support of his domestic violence claims. It is to that matter which I shall first turn, as the Tribunal did consider those claims and made findings in relation to them.
The Tribunal noted the visa applicant had stated that the relationship between he and the sponsor had ceased and that he had sought residency under the domestic violence provisions of Division 1.5 of the Regulations. The Tribunal then set out those Regulations. The Tribunal noted in its reasons that the evidentiary requirements of the domestic violence provisions were framed in highly prescriptive terms. The Tribunal noted that no statutory declaration had been submitted by the visa applicant. On that basis the Tribunal found that the visa applicant had failed to satisfy the requirements of Regulation 1.24(1)(a) of the Regulations.
The Tribunal also relevantly observed at paragraph 47 of its decision that:
Moreover, he has provided only one supporting statutory declaration by a competent person, Ms Selvi, who is a psychologist... Regulation 1.24 requires that he submit either a second statutory declaration by another competent person of a different occupational group, or a police record of an assault on himself perpetrated by the sponsor. He has done neither.
The Tribunal referred to the decision of Raphael FM in McGuire v Minister for Immigration and Multicultural and Indigenous Affairs (2004) FMCA 1014 wherein the Federal Magistrate held that the Tribunal had a duty to determine whether or not an applicant had complied with the requirements of the Regulations by providing the correct number of valid statutory declarations. The Federal Magistrate concluded that without that number, the Tribunal had no jurisdiction to make a decision favourable to the applicant.
In this case the Tribunal found that the visa applicant had failed to provide the evidence prescribed in Regulation 1.24 of the Regulations in support of his claims of domestic violence and that as a consequence the Tribunal did not have a valid non-judicially determined claim of domestic violence before it. Accordingly, the Tribunal found that it was not bound therefore to pursue the course of action prescribed in Regulation 1.23(1B).
The Tribunal then went on to state that it was not under any obligation to highlight to an applicant that their statutory declarations in support of allegations of domestic violence did not satisfy the requirements of the Regulations, relying on the decision of Phipps FM in Serfonteyn v Minister for Immigration and Multicultural and Indigenous Affairs (2004) FMCA 333. The Tribunal concluded that the visa applicant failed to meet the requirements of Division 1.5 of the Regulations.
No jurisdictional error attends the Tribunal's reasons with respect to the applicant's failure to satisfy the evidentiary requirements of Division 1.5 of the Regulations. The applicant's application for a permanent spouse visa could not constitute an application that included a "non-judicially determined claim of domestic violence" within the meaning of subregulation 1.23(1A). Therefore the Tribunal had no power to consider, pursuant to subregulation 1.23(1B), whether or not the applicant had suffered domestic violence and as a result the applicant could not be taken to have suffered domestic violence.
This finding, which the applicant does not challenge, was fatal to the applicant's ability to satisfy the requirements of subclause 100.221(4). The finding as to the lack of satisfaction of the evidentiary requirements in Division 1.5 of the Regulations constituted an independent and alternative basis for the Tribunal's decision. Such finding discloses no jurisdictional error on the Tribunal's part. Even were there error apparent in the Tribunal's reasons in relation to the other basis on which the visa applicant proceeds, the decision of the Tribunal must be upheld (VCAD v Minister for Immigration and Multicultural and Indigenous Affairs (2005) FCAFC 1, Bray J, at 23).
Turning to a consideration of the argument with respect to clause 100.221, part 100 of Schedule 2 to the Regulations sets out the criteria for the grant of a permanent spouse visa. Subdivision 100.22 stipulates the criteria to be satisfied at the time of a decision in respect of a permanent spouse visa application. In that subdivision, clause 100.221 states that:
(1)The applicant meets the requirements of subclause (2), (2A), (3), (4) or (4A).
(2)The applicant meets the requirements of this subclause if:
(a)the applicant:
(i) is the holder of a subclass 309 (spouse (provisional)) visa; or
(ii) ... ; and
(b)the applicant is the spouse of the sponsoring spouse; and
(c)at least two years have passed since the application was made.
(2A)...
(4)The applicant meets the requirements of this subclause if:
(a)the applicant first entered Australia as the holder of a subclass 309 (spouse (provisional)) visa and either:
(i) continues to be the holder of that visa; or
(ii) ... ; and
(b)the applicant would meet the requirements of subclause (2) or (2A) except that the relationship between the applicant and the sponsoring spouse has ceased; and
(c)after the applicant first entered Australia as the holder of the visa mentioned in paragraph (a) - either or both of the following circumstances apply:
(i) either or both of the following:
(A)the applicant;
(B)a member of the family unit of the sponsoring spouse or of the applicant or of both of them; has suffered domestic violence committed by the sponsoring spouse;…
Division 1.5 of the Regulations sets out special provisions relating to domestic violence, to which I have already referred.
Counsel for the applicant noted that the Tribunal interpreted clause 100.221(4) as requiring compliance with sub-para.(b) of item 100.221(2) as a criterion for compliance with item 100.221(4). Counsel noted that the Tribunal made findings that the relationship between the applicant and his sponsoring wife was not and never had been "spousal" in terms of Regulation 1.15A, and thereupon refused to set aside the delegate's decision on this ground. Counsel argued that that interpretation was incorrect and that the Tribunal had asked itself the wrong question and applied the wrong test in carrying out its decision-making function.
In relation to the relationship between paragraphs 100.221(2)(b) and (4)(b), the Tribunal stated at para.27 of its decision that:
The Tribunal can find little judicial guidance as to the interpretation and application of this provision, and in the absence of such assistance or a more plausible interpretation of the relationship between and combined effect of paragraphs 100.221(4)(b) and 100.221(2)(b), inclines to the view that they require that before determining whether domestic violence is taken to have occurred under Division 1.5 of the Regulations, the Tribunal must first determine whether the sponsor and the review applicant were in a genuine spousal relationship within the meaning of Regulation 1.15A of the Regulations. Only where the Tribunal finds such a relationship existed is it required to make a further finding in relation to claims of domestic violence.
The Tribunal proceeded to assess, pursuant to Regulation 1.15A of the Regulations, whether or not, on the evidence before it, the applicant had been the spouse of the sponsor. The Tribunal concluded that at no point in time could the relationship between the parties properly be regarded as spousal within the meaning of the Regulations.
Accordingly, the Tribunal found the visa applicant was not the spouse of the sponsoring spouse within the meaning of Regulation 1.15A, as was required by paragraphs 100.221(4)(b) and 100.221(2)(b) of Schedule 2 to the Regulations. The Tribunal noted that only where it found that such a relationship existed - that is, a spousal relationship - was it required to make a further finding in relation to claims of domestic violence.
On the evidence before it, it was open to the Tribunal to make such a finding.
I do not find an error in the Tribunal's construction of paragraph 100.221(4)(b), nor do I find that were there such error, it could have materially affected the Tribunal's decision. As indicated earlier in these reasons, the Tribunal made alternate findings which provided an independent basis for the Tribunal's rejection of the applicant's claims. Any error, therefore, in respect to the Tribunal's construction of paragraph 100.221(4)(b) could not affect the outcome of this application.
The application must be dismissed and I shall order the applicant to pay the respondent's costs fixed in the sum of $5000.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Hartnett FM
Associate:T. Jones
Date: 24 March 2006
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