Homa v Minister for Immigration and Citizenship
[2025] FedCFamC2G 1511
•16 September 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Homa v Minister for Immigration and Citizenship [2025] FedCFamC2G 1511
File number(s): SYG 506 of 2024 Judgment of: JUDGE LAING Date of judgment: 16 September 2025 Catchwords: MIGRATION – application for judicial review of a decision of the Administrative Appeals Tribunal – whether the Tribunal considered evidence relevant to the question of whether the requisite relationship existed between the applicant and his sponsor – potential significance of the evidence within the context of the issue in question, the applicant’s claims and the Tribunal’s reasoning – writs issued Cases cited: CSO15 v Minister for Immigration and Border Protection [2018] FCAFC 14; (2018) 260 FCR 134
Liang v Minister for Immigration & Anor [2008] FMCA 9
Minister for Immigration & Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594
Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Gupta [2022] FCAFC 51; (2022) 296 FCR 307
Division: General Number of paragraphs: 36 Date of last submission/s: 26 June 2025 Date of hearing: 29 May 2025 Place: Sydney Appearing for the Applicant: In person Solicitor for the First Respondent: Mr J Hutton of Australian Government Solicitor Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 506 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SARKIS HOMA
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LAING
DATE OF ORDER:
16 SEPTEMBER 2025
THE COURT ORDERS THAT:
1.A writ of certiorari issue quashing the decision of the Administrative Appeals Tribunal dated 27 February 2024 in case number 1905953.
2.A writ of mandamus issue directed to the Administrative Review Tribunal requiring it to reconsider and determine the matter according to law.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)), or to record a variation to the order pursuant to r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).
REASONS FOR JUDGMENT
JUDGE LAING:
The applicant seeks judicial review of a decision made by the Administrative Appeals Tribunal (Tribunal) (as it was). By that decision, the Tribunal affirmed a decision by a delegate (Delegate) of the first respondent (Minister) refusing to grant the applicant a Partner (Residence) (Class BS) visa (partner visa).
For the following reasons, I consider that the Tribunal’s decision was affected by jurisdictional error. Writs will therefore issue, quashing the decision and requiring that the matter be redetermined according to law.
BACKGROUND
On 31 December 2014, the applicant applied for a partner visa based upon his relationship with his sponsor (Sponsor). On 7 September 2015, the applicant was granted a Subclass 820 visa.
On 26 February 2019, the Delegate refused to grant the partner visa. On 13 March 2019, the applicant applied to the Tribunal for review of the Delegate’s decision.
The applicant attended a hearing before the Tribunal on 21 November 2023 and a resumed hearing on 9 February 2024.
On 27 February 2024, the Tribunal affirmed the Delegate’s decision.
THE TRIBUNAL’S DECISION
The Tribunal summarised the background to the matter and evidence before it at [1]-[69] of its decision. At [71], the Tribunal expressed that it had not attached weight to allegations made in an anonymous tip-off that the relationship was contrived to achieve a migration outcome.
At [73]-[78], the Tribunal raised concerns regarding what it considered were inconsistencies in the evidence before it. At [77], the Tribunal considered:
77.On balance, whilst the Tribunal was satisfied of the existence of certain factors which might go towards meeting the definition of a spousal relationship, it remained unsatisfied of the existence of other facts which would lead the Tribunal to that conclusion. This is because when assessing the totality of the presented evidence, overall in the Tribunal’s assessment the applicant’s evidence was not compelling and was not supported by cogent corroborating evidence which might otherwise indicate support for his claims. The reasons for arriving at this view are set out in the following paragraphs.
At [78]-[81], the Tribunal considered:
78.The applicant claims that he and his former spouse had spent an intense period getting to know each other which involved sharing each other’s personal information, circumstances, and details about each other. This claim however, in the Tribunal’s assessment, is inconsistent with the applicant being unable to provide evidence about relevant aspects of his then spouse’s circumstances and other significant aspects of their relationship. For example:
a)The applicant was unable to provide any specific details about whether JY owned the Glenroy property, or what she did with the property during the period he states that they lived together in Broadmeadows.
b)He did not know with any certainty how his then spouse derived an income; he thought she might receive a pension or income support.
c)He could not name JY’s children including the names of two daughters despite relying on their statutory declarations in support of his visa application.
d)The applicant stated that he rarely saw his wife’s daughters due an estrangement with their mother. That evidence again was inconsistent with statutory declarations he provided and relied upon in support of his application which describe him as having regular contact with them.
e)The applicant does not know the names of any of JY’s friends despite making claims in support of his visa application that JY had introduced him to her friends.
79. The Tribunal also observes the following aspects:
a)The applicant has not introduced JY to any of his family members.
b)The lack of any photographic evidence depicting the applicant with JY at any event or occasion apart from the wedding and their first year anniversary.
c)There is a relatively short period of time in which the applicant and JY moved from meeting (April 2014) to proposal of marriage (July 2014) to marriage (August 2014) in circumstances where the applicant owned a business in Norway and had family ties in that country. The totality of the claimed relationship is a period of just over three years (August 2014 to September 2017).
80.In the Tribunal’s assessment, evidence about the social aspects of their relationship and which might demonstrate that the applicant and JY represented themselves to others as being married to each other, is limited. Apart from wedding photographs and photos taken on the anniversary, the evidence is overall limited to the claims made by the applicant and JY in support of the visa application and statutory declarations provided by family friends of the applicant.
81.In that regard, the statutory declarations provided in support of the applicant’s claims of a genuine relationship have been provided by persons who all have a family relationship to the applicant’s best friend SD. Whilst that is not necessarily of itself a reason to not accept those statements, in the context of the overall evidence before the Tribunal and given that there are no third-party statements provided by persons outside of that cohort the Tribunal is inclined to attach lesser weight to that evidence. In addition, those declarations variously stated that the applicant and JY were regular visitors and that observations of their relationship were based upon such regular contacts. In his oral evidence the applicant stated that JY did not often visit his friends and that the contact was mainly with himself.
JY is a pseudonym given to the Sponsor by the Tribunal.
At [82]-[86], the Tribunal considered evidence regarding living arrangements as follows:
82.The Tribunal was also not convinced by evidence presented in support of the applicant’s claims that he and JY lived together following their marriage. His evidence was that he secured the rental property at Broadmeadows because culturally he felt obligated to so, this is despite evidence which suggests that they were living in a property that JY most likely owned and in circumstances (according to the applicant’s evidence) that it was very difficult for him to secure a rental.
83.The Tribunal asked the applicant given the difficulties he encountered in securing a rental, why didn’t JY jointly engage in that process with him particularly as she was the person in their relationship with a property history and had lived in Australia longer than he had. The Tribunal put to the applicant that it seemed unusual for a person’s partner not to be more involved in finding a mutual home particularly given the difficulties he expressed he had in securing a rental. The applicant stated that he did not know why this was the situation and stated JY would give him advice about navigating the rental system. The applicant denied that he secured a rental because he was the person living there and it was not a property he shared with JY.
84.In terms of assessing the living arrangements, the applicant’s evidence of how joint living arrangements manifested and his description of how housework and other day-to-day arrangements were organised was generic in nature and lacked convincing detail, the Tribunal attaches little weight to his statement that he and JY lived together.
85.In the Tribunal’s view whilst there is some evidence tying JY to the Broadmeadows rental property apart from the applicant’s evidence this is limited to her name appearing on one of the utility bills and her name being included in the rental agreement. Overall, the Tribunal is not satisfied on the presented evidence that the applicant and JY did live together in the rental property. In the Tribunal’s assessment of the evidence, the applicant on his return from Norway rented the property in Broadmeadows and resided there without JY.
86.The applicant also claims that he lived with the sponsor at the Glenroy property initially immediately after the marriage and again after moving from Broadmeadows until the conclusion of their relationship. Again, apart from the claims made by the applicant and the sponsor in support of the visa application, independent evidence is limited to some correspondence addressed to him at that property. The Tribunal is not satisfied that the applicant lived at the Glenroy property with JY.
At [87], the Tribunal summarised its findings of fact regarding the financial arrangements, nature of the household, social aspects and nature of commitment, as follows:
87.In this matter the Tribunal makes the following findings of fact, the applicant and JY (the sponsor):
Financial arrangements
a)The applicant and JY did not jointly own any real estate or other major assets nor service any joint liabilities.
b)The applicant and JY opened a joint bank account. The applicant deposited cash amounts into that account. JY did not make deposits into that account.
c)There was no pooling of financial resources, especially in relation to major financial commitments.
d)Did not owe any legal obligation in respect of each other.
e)The applicant paid the rent for the Broadmeadows property. The applicant met the utility costs and related household costs for the Broadmeadows property.
f)The applicant’s name is on the gas and water accounts for the Broadmeadows property.
g)JY’s name is on the electricity account for the Broadmeadows rental.
h)The applicant did not contribute to accommodation or utility costs for the Glenroy property.
Nature of the household
i)Did not have joint responsibility for the care or support of children.
j)The applicant and JY signed a rental agreement for a property located in Broadmeadows in December 2014.
k)The applicant has been sent correspondence addressed to him at the Glenroy property at various times between July 2015 and July 2017.
l)Did not live together at Glenroy or at Broadmeadows and did not share responsibility for housework.
Social aspects
m)The applicant has not introduced JY to any members of his family.
n)The applicant does not know the name of JY’s children.
o)The applicant does not know the name of JY’s friends.
p)JY is known to some of the applicant’s friends who are family members of his friend SD.
q)The applicant has provided photographs of the wedding and a wedding anniversary depicting himself and JY.
r)The opinion of friends and acquaintances about the nature of their relationship is limited to persons who have a family association with the applicant’s best friend SD.
Nature of commitment to each other
s)Met in April 2014, married in August 2014 and separated in September 2017.
t)Did not have any specific future plans.
The Tribunal then concluded at [88]-[90]:
88.On the basis of the evidence, its findings of fact and taking into account the definition of spouse and having regard to the factors set out in reg 1.15A(3) the Tribunal concludes that for the reasons set out, it is not satisfied that the requirements of s 5F(2) were ever met. In coming to this conclusion, the Tribunal notes that apart from the fact of their marriage, it was not satisfied that on balance, the factors which would support a conclusion that the applicant and the sponsor were in a spousal relationship are satisfied on the facts of this case.
89.The Tribunal concludes that it is not satisfied that there ever was a mutual commitment to a shared life as a married couple, to the exclusion of all others, that the relationship was genuine and continuing and that the applicant and the sponsor lived together or did not live separately and apart on a permanent basis: s 5F(2)(a)–(d). The Tribunal concludes that for these reasons the applicant does not meet cl 801.221(2)(c).
90.The Tribunal is satisfied that that the applicant does not meet any of the alternative criteria in cl 801.221(2A), (3), (4) or (5) In reaching this conclusion the Tribunal notes that the applicant has made claims pursuant to cl 801.221(6). As noted, the relevant partner relationship must have existed before it can be determined that the relationship has ceased. In this case the Tribunal determines that there was no partner relationship and for that reason the family violence exception does not arise for consideration.
On the basis of the above, the Tribunal found that the applicant was unable to meet the criteria for the visa and affirmed the Delegate’s decision (at [91]-[92]).
APPLICATION FOR REVIEW
The applicant sought review of the Tribunal’s decision through an application filed on 21 March 2024, relying upon the following grounds of review:
The Tribunal failed to consider and give proper weight to the evidence provided by my doctors and psychiatrist, namely Dr. Umit and Ms. Hatice Jurutoglu, regarding the severe mental distress I experienced as a result of the domestic violence inflicted by the sponsor. This failure constitutes a jurisdictional error as it resulted in the Tribunal making its decision without considering all relevant evidence that was crucial to determining the genuineness of my spousal relationship and the impact of domestic violence on my circumstances.
The Tribunal failed to consider and apply the relevant legal framework, specifically the Family Law Act 1975 and the Family Violence Act, which define and address domestic violence in Australia. By failing to apply these laws to my case, the Tribunal committed a jurisdictional error as it failed to properly assess the impact of domestic violence on my relationship and the validity of my visa application.
The Tribunal failed to provide adequate reasons for its decision, particularly regarding its assessment of the evidence relating to domestic violence. The decision does not adequately explain why the evidence provided by my doctors and psychiatrist was not considered or given proper weight. This lack of reasoning constitutes a jurisdictional error as it hinders the ability to understand how the Tribunal reached its decision and whether it properly considered all relevant factors.
The Tribunal failed to consider the cumulative impact of the domestic violence I experienced, including the physical assaults, verbal abuse, and emotional distress.
(Per the original)
As will be apparent from the above, the applicant objected to the level of consideration given to evidence from his psychologist (Mrs Hatice Kurtoglu) and other evidence. The applicant also objected to the Tribunal’s reasoning regarding his claims of domestic violence (which were not determined by the Tribunal). However, as the Tribunal considered, the question of family violence did not arise for consideration if no spousal or de facto relationship was found to have existed at any time: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Gupta [2022] FCAFC 51; (2022) 296 FCR 307 at [44] (Farrell, Snaden and Abraham JJ).
This does not mean, however, that evidence was not capable of being put forward in support of both the existence of the relationship and the claim of family violence. Nor did it mean that evidence in support of one issue was, necessarily, incapable of bearing upon the other.
In the present case, the applicant’s psychologist authored reports attached to statutory declarations made on 22 September 2017 and 8 March 2018. A statutory declaration from his GP (Umit Cenap) indicated that the applicant had been referred to the psychologist following an assessment on 8 September 2017, during which the applicant had reported domestic violence and distress because “his marriage was breaking”, and had made references to the home he claimed to have shared with the Sponsor (CB 205). The psychologist echoed, inter alia, the applicant’s account of his living arrangements with the Sponsor (CB 191-193 and 278-283). The applicant had claimed that he had lived with the Sponsor, but that this situation was interspersed with episodes of the Sponsor “kick[ing] [him] out” and then “telling [him] its okay for [him] to come back”. The applicant had claimed that they had ceased living together after an episode in which there had been an altercation with the Sponsor, in which she had hit him with her shoe and told him to leave, following which the applicant had decided not to remain in the relationship. Significantly, the psychologist referred to having been shown a text message, apparently from the Sponsor. An apparent copy of that message was also provided to the Department (CB 224-225). The message stated:
Hi Sarkis
How is everything going with you
I am feeling very bad about all that has happened between us and the troubles I put you in
And that i did hit you with shoes
I am sorry for that
I promise I will not do that again
You can come back we can talk
If you don’t come back I will give you troubles and Kick out of this countryThe message appears to have been sent on 14 September 2017, prior to the Sponsor informing the Department that the relationship had ended on 5 September 2017 ([13] of the Tribunal’s decision).
In Liang v Minister for Immigration & Anor [2008] FMCA 9 (Liang), Riley FM (as her Honour then was) considered:
21.In considering an application for a partner visa where there is a claim of domestic violence, it is entirely proper for the Tribunal to undertake a two-stage process. The first stage involves determining whether there has ever been a genuine spousal relationship. If so, the Tribunal should undertake the second stage, which involves determining whether the domestic violence provisions have been satisfied.
22.However, the two-stage process does not mean that evidence of domestic violence is necessarily irrelevant to the question of whether the applicant and sponsor have ever been in a genuine spousal relationship. For example, the evidence relating to domestic violence might include evidence that supports a claim of cohabitation, or a claim that the applicant and sponsor were known to friends, family or the authorities as a couple…
26.The evidence that the applicant and the sponsor cohabited included the statutory declaration from the psychiatrist and the intervention order. The statutory declaration from the psychiatrist said that the applicant “is now very scared of co-habiting with her husband”. It was implicit in the statutory declaration that the psychiatrist was under the impression that the applicant and sponsor had cohabited since the applicant’s arrival in Australia in May 2003 until July 2004 when the statutory declaration was made. The intervention order recorded the sponsor’s address as the applicant’s address in Crossman Street.
27.Of course, the Tribunal was entitled to form the view that the psychiatrist was simply recounting what she had been told and that the bruising and clinical signs of anxiety observed by the psychiatrist had some other cause. The Tribunal was also entitled to form the view that the sponsor’s address on the intervention order had been provided by the applicant and the sponsor had simply not bothered to attend court to correct the address or otherwise defend the allegations. The Tribunal was entitled, on a proper basis, to give no weight to both of these items of evidence.
28.However, the Tribunal was not entitled to ignore evidence which went to the question of cohabitation, where that question was central to the Tribunal’s decision…
In the present case, it is apparent that the report from the applicant’s psychologist was put forward to support the applicant’s claims regarding domestic violence but also his narrative of what had occurred in the relationship (including regarding their living arrangements). In particular, the applicant had claimed that his cohabitation with the Sponsor had been characterised by temporary periods of the applicant being “kicked out” and then invited back, with the last episode of this being the catalyst for the couple ceasing their cohabitation (CB 182-185). This was documented in the psychologist’s reports, one of which documented the psychologist having been shown a text message said to have been from the Sponsor that (at least potentially) corroborated the applicant’s account. Screenshots of what appears to have been the text message had been provided separately to the Department (CB 224-225). This appears to have followed a request for information dated 3 November 2017 noting the applicant’s family violence claim but also seeking evidence that the applicant had been the spouse or de facto partner of the Sponsor (including evidence regarding their living arrangements).
The Minister accepted that the evidence from the psychologist and the text message were not referred to in the Tribunal’s decision. The Minister also accepted, by reference to Liang, that material provided in support of a claim of domestic violence may also be deployed for the purposes of determining whether there was a partner relationship, particularly in relation to the issue of cohabitation. However, the Minister submitted that the present case was distinguishable from Laing, in which claims reported in the medical evidence were said to have been ignored. In contrast, in the present case, it was submitted that the claims were given little weight (at [84]).
I accept that the Tribunal, at [84], gave “little weight” to the applicant’s statement that he and his Sponsor had lived together. This followed reasoning, set out above, at [82]-[84] in which the Tribunal did not accept the applicant’s claims that he and the Sponsor had lived together following their marriage. However, in coming to this conclusion, the Tribunal did not (at least expressly) consider evidence in the psychologist’s report, including evidence regarding the text message. Depending upon the potential significance of that evidence to the conclusions reached by the Tribunal, failure to consider it would be capable of demonstrating jurisdictional error in the manner considered in cases such as Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 (SZRKT) (Robertson J).
The Minister submitted that an inference ought not to be drawn that this evidence was not considered. Instead, the Minister submitted that an inference ought to be drawn that the evidence was immaterial to the conclusion reached by the Tribunal: Minister for Immigration & Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594 at [31] per French CJ and Kiefel JJ (as her Honour then was).
The Minister submitted that this was for four reasons.
The first was that the Tribunal stated at [73] that it had considered “all relevant circumstances and evidence of the relationship”. Although this may be taken into account, it is hardly determinative. The fact that the Tribunal believed that it had considered all relevant evidence does not mean that it did, in fact, do so.
The second and fourth reasons given focussed upon the significance of the evidence. The Minister contended that the highest the evidence went to was demonstrating that the applicant had claimed to medical professionals that he had shared accommodation with the Sponsor until the Sponsor kicked him out following a dispute in 2017. The Minister submitted that those claims were made elsewhere in the materials and had been given “little weight” by the Tribunal.
However, this overlooks the support for the applicant’s claims or narrative that was (at least potentially) provided in the medical evidence. The applicant’s medical evidence indicated that he had been referred for psychological assessment and treatment on 8 September 2017, with the catalyst being the breakdown of the relationship (CB 191, 205). The referral, and the applicant’s account of the reasons for it, predated the Sponsor’s advice to the Department regarding cessation of the relationship. Although, as the Minister submitted, this could have been a “protective” strategy on the applicant’s part in anticipation of the Sponsor’s conduct (or coincidental), this is not the only possible interpretation of this evidence.
Further, and in any event, the text message relied upon by the applicant (and referred to in the psychologist’s reports) was, clearly enough, put forward to corroborate his account of what had happened (both in terms of the domestic violence and the living situation that the applicant had claimed). Although I accept, as the Minister submitted, that the evidence was put forward within the context of a claim of domestic violence, it was also produced by the applicant in the context of seeking to demonstrate the existence of a spousal or de facto relationship. Evidence was not necessarily irrelevant to the latter issue, simply because it had also been produced in support of the former issue. Although this does not appear to have been spelled out in submissions from the applicant, I am not persuaded that this was necessary. This is in circumstances where it was sufficiently obvious that the text message had been provided to corroborate the account the applicant had given. That account went both to the question of domestic violence and to his claims regarding cohabitation.
This is not a case such as CSO15 v Minister for Immigration and Border Protection [2018] FCAFC 14; (2018) 260 FCR 134, in which the Tribunal had expressly engaged with the evidence in question. This is a case in which the evidence was not referenced by the Tribunal in its decision, at all.
I accept, as the Minister suggested, that the message did not state, in terms, that the applicant and his Sponsor had lived together. I am not persuaded that it needed to do so in order to corroborate the applicant’s claims regarding cohabitation. The applicant had claimed that he had lived with the Sponsor for a period of time punctuated by temporary separations (with the Sponsor “kick[ing] [him] out” and then telling him he could come back). Their cohabitation was claimed to have ceased on a more permanent basis only after the incident with the shoes. A text message from the Sponsor acknowledging that she had hit him with shoes, inviting him to “come back”, and threatening to imperil his immigration situation if he didn’t, was at least potentially corroborate of those claims (even if the words “come back” were open to interpretation).
It follows from the above that I consider that the evidence in question was of some potential significance within the context of the issue before the Tribunal and the applicant’s claims. This leads to consideration of the third reason the Minister suggested that the evidence had been regarded as immaterial – by reference to the reasoning of the Tribunal.
I accept that the Tribunal gave reasons for not accepting the applicant’s claims to have cohabited with the Sponsor until 2017, when he had claimed that she had “kicked [him] out”. I accept that the Tribunal gave the applicant’s claims in this regard “little weight”. I accept, as was submitted by the Minister, that the “focus of the Tribunal’s inquiry was whether there was consistent and corroborative evidence that the applicant and his sponsor had ever lived together during the period in which they were married”. However, the Tribunal’s rejection of the applicant’s claims in this regard was determined without reference to the evidence that the applicant had put forward in support of those claims through the psychologist’s reports and, in particular, through the text message said to have been received from the Sponsor on 14 September 2017. Given the Tribunal’s expressed concerns regarding the lack of supporting evidence corroborating the applicant’s claims regarding the relationship, it seems likely that the Tribunal would have referred to the evidence in question, or at least the text message, had this evidence been considered by the Tribunal.
Having regard to the above, I am persuaded to find that the Tribunal did not consider evidence that was centrally relevant to its decision. The evidence in question went (amongst other things) to the applicant’s claims regarding cohabitation with the Sponsor. The Tribunal’s rejection of those claims was central to its rejection that the applicant and the Sponsor had been in the requisite relationship. In not considering this evidence, the Tribunal fell into the species of error considered in cases such as SZRKT. Jurisdictional error has been demonstrated on this basis.
CONCLUSION
For the above reasons, the application before the Court succeeds.
I will hear from the parties in relation to costs.
I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing. Associate:
Dated: 16 September 2025
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