IP v Minister for Immigration

[2017] FCCA 1300

FEDERAL CIRCUIT COURT OF AUSTRALIA

IP v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1300

Catchwords:
MIGRATION – Migration Act 1958 (Cth) – Application for a partner visa – application in Court for review of decision of Administrative Appeals Tribunal affirming decision of delegate not to grant a partner visa because of cessation of spousal relationship between applicant and sponsoring partner – no other ground for grant of a partner visa established by applicant – no jurisdictional error – application for judicial review dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5F, 65

Migration Regulations 1994 (Cth)

Applicant: HOI WA IP

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2279 of 2016

Judgment of: Judge Dowdy

Hearing date: 23 May 2017

Delivered at: Sydney

Delivered on: 22 June 2017

REPRESENTATION

The Applicant appeared in person.

Counsel for the Respondents: Ms J Strugnell

Solicitors for the Respondents: Minter Ellison

THE ORDERS OF THE COURT ARE AS FOLLOWS

1. The Application filed in this Court on 23 August 2016 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2279 of 2016

HOI WA IP

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The Applicant is a male citizen of Macao aged 55 years, having been born on 17 January 1962.

2. By Application filed in this Court on 23 August 2016 he seeks to quash and have redetermined a decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal) dated 27 July 2016 affirming a decision of a Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister) dated 15 July 2015 refusing to grant the Applicant a Partner (Temporary) (Class UK) visa (Partner visa) under s.65 of the Migration Act 1958 (Cth) (the Act).

3. The Applicant applied for a Partner visa on 28 October 2014. It was founded on the basis of his alleged spousal relationship with an Australian citizen, Ms Wenfang Li (the sponsor) whom he married on 23 September 2014.

4. For the purposes of his Partner visa application the Applicant had to establish to the satisfaction of the Minister that he was and continued to be the spouse of his sponsor both at time of application and at time of decision as required by the combined effect of cl.820.211(2)(a) and cl.820.221(1)(a) of Sch.2 to the Migration Regulations 1994 (Cth) (the Regulations).

5. At all relevant times, s.5F of the Act defined a “spouse” for the purposes of the Act and the Regulations 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) …

6. Unfortunately for the Applicant his relationship with the sponsor broke down and by email dated 19 May 2015 she advised the Partner Visa Processing Centre of the Department of Immigration and Border (Processing Centre) as follows:-

   We got married in 23 of September 2014. Many problems happened between us after the marriage, I cannot continue a relationship with him. We decided to divorce now, so I hope cancel the guarantee (820 visa) to Ip hoi wa.

   Please let me know if anything else is required from me.

7. Consequently by letter dated 21 May 2015 the Processing Centre advised the Applicant that it had received information that his relationship with his sponsoring partner had ended. The letter gave him the opportunity to comment on this information and on the sponsor’s withdrawal of sponsorship of the Applicant. It further advised the Applicant that even if the relationship between the sponsor and himself had ended, there were three circumstances in which he could potentially continue to be considered for the grant of a Partner visa, namely where:-

   a)the sponsor had died; or

   b)the Applicant or a member of his or the sponsor’s family unit had suffered “family violence” committed by the sponsor; or

   c)the Applicant and the sponsor shared custody, access or maintenance obligations in respect of a child.

8. The legal basis for the three circumstances summarised above are dealt with below at [21]-[23].

9. The Applicant did not respond to the letter of 21 May 2015.

Decision of Delegate

1. The Delegate by Decision Record of 15 July 2015 found that the sponsor had withdrawn her sponsorship of the Applicant for the Partner visa, that the Applicant was no longer the spouse of the sponsor and that therefore the Applicant did not meet the criteria of regulation 820.211(2)(a)(i) as required by cl.820.221(1)(a) at the time of decision. The Delegate further found that there was no evidence that the sponsor was deceased, that any family violence had occurred or that there was a child of the relationship between the Applicant and the sponsor. Therefore the limited circumstances outlined at [7] above in which the Partner visa could nevertheless be granted were not applicable and the Delegate accordingly refused the Applicant’s application for a Partner visa.

Application for Review to the Tribunal and Tribunal Decision

1. On 7 August 2015 the Applicant lodged an application for review with the Tribunal. He appeared before the Tribunal on 27 July 2016 with his registered migration agent and his new partner to give evidence and present arguments. The Applicant confirmed in his oral evidence to the Tribunal that his relationship with the sponsor had ended and that he had divorced the sponsor. The Applicant informed the Tribunal that he was in another relationship.

2. The Tribunal pointed out that cl.820.211(2)(a) and cl.820.221 required that at the time the Partner visa application was made and at the time of the Tribunal’s decision the Applicant had to be the spouse or de facto partner of an Australian citizen, Australian permanent resident or eligible New Zealand citizen.

3. The Tribunal found that there was no evidence for the purposes of the definition of “spouse” found in s.5F of the Act either that the Applicant and the sponsor continued to live together or that any other indicia of a spousal or married relationship existed.

4. The Applicant alleged as the reason for divorcing the sponsor that she was being intimidated by an ex-partner with a criminal background and that he himself felt threatened and as a result had divorced the sponsor. The Applicant claimed that the ex-partner had obtained his phone number and sent him threatening messages. He had concerns about his own personal safety, as a result of which he separated from the sponsor.

5. The Tribunal pointed out at [9] of the Decision Record that to the extent that the Applicant was raising a claim of family violence, there had been no provision by him of the prescribed evidence of family violence and therefore the Tribunal was unable to consider any such claim as providing grounds for the grant of a Partner visa in circumstances where the spousal relationship had broken down.

6. In the result the Tribunal found at [10] of its Decision Record that there was no evidence that the sponsor had died nor any of the prescribed evidence in relation to any family violence and that there were no children of the Applicant and the sponsor. It therefore found that the Applicant did not meet any of the requirements of cl.820.221 and it affirmed the Delegate’s decision not to grant the Applicant a Partner visa.

Grounds of Attack on the Tribunal Decision in this Court

1. The Application filed in this Court on 23 August 2016 contained the following Grounds:

   1.The First Respondent failed to exercise discretion and did not take into account of all relevant considerations in making the determination, the applicant should be given the chance to express what had happened in the relationship, and the termination of the relationship is beyond the applicant's control. The first respondent should consider this point.

   2.The Second Respondent denied the applicant natural justice or procedural fairness in making the determination without thoroughly examining the claim made by the applicant in particular to that the original decision as to the refusal on 20th July 2015.

   3.The applicant has been treated unfairly in the relationship, his circumstance should be considered as the continuation of partner visa.

   4.The relationship has been terminated by the sponsor due to the unbelievable threaten made by the sponsor's ex-husband, the sponsor did not intentionally to terminated the relationship. This is the exceptional circumstance should be noticed by the First Respondent and the Second Respondent.

2. At the hearing the Applicant was not able to advance any meaningful submissions which would establish that the Tribunal committed jurisdictional error. He continued to complain of the conduct of the ex-partner of his sponsor and asserted that the Department of Immigration and Border Protection should have launched an investigation into the sponsor and her background.

Consideration

1. Neither the oral submissions of the Applicant at the hearing nor any of his four Grounds establish that the Tribunal committed legal or jurisdictional error or failed to afford him procedural fairness or natural justice.

2. At the time of the Tribunal’s decision, the sponsor had withdrawn sponsorship by her email of 19 May 2015 and the Applicant and the sponsor were no longer in a spousal relationship (see [6] above).

3. Nevertheless, as indicated in the Processing Centre’s letter of 21 May 2015 (see [7] above), the Applicant could potentially continue to be considered for the grant of a Partner visa if the sponsor had died and the other requirements of cl.820.221(2) had been satisfied. Obviously the Applicant could not avail himself of this ground because the sponsor had not died.

4. In the alternative, the Applicant could have continued to be considered for the grant of a Partner visa if there had been a dependent child of the sponsor, the Applicant or both of them, but that was not the case.

5. The final situation in which the Applicant could have continued to be considered for the grant of a Partner visa, notwithstanding that the relationship between the sponsoring partner and he had ceased, was pursuant to cl.820.221(3)(b)(i), namely if the Applicant had suffered family violence committed by the sponsor.

6. However, the Applicant could not avail himself of this ground because he had never claimed to the Tribunal that his sponsor had committed family violence against himself. Rather, his claim had been that the criminal ex-partner of the sponsor had intimidated her and that he himself had felt threatened.

7. Further and in any event, reg.1.23 of the Regulations defines when a person is taken to have suffered “family violence” and none of the circumstances within the definition of family violence within that regulation were applicable. Even if the Applicant had alleged that the sponsor had committed family violence against him, he would pursuant to reg.1.23(9)(c) have been required to present evidence by a statutory declaration as required by reg.1.24, setting out the allegations of violence in accordance with and as required by reg.1.25 (which provides for the making of a “non-judicially determined claim of family violence”).

8. However, the Applicant never claimed in the first instance that the sponsor had committed violence against him and in the second instance never made a “non-judicially determined claim of family violence” in the form and manner required by reg.1.23(9).

9. As discussed at [15] above, the Tribunal outlined those circumstances by stating at [9] of its Decision Record as follows:-

   To the extent that the applicant is raising a claim of family violence, the Tribunal notes that he has not provided the prescribed evidence of family violence and the Tribunal is unable to consider the claim of family violence. The Tribunal is mindful that more than a year has elapsed since the applicant's application was refused by the delegate and the applicant is represented by an experienced migration agent, so if the applicant wished to provide evidence of family violence, he had ample opportunities to do so. In the absence of such evidence, the Tribunal is unable to consider the purported claim of family violence.

Conclusion

1. However aggrieved the Applicant may understandably feel about the breakdown of his relationship with the sponsor and whatever the reasons for that breakdown may be, it remains the case that he has not established any jurisdictional error on the part of the Tribunal nor any denial of natural justice or procedural fairness by it. In these circumstances his Application must be dismissed with costs.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Dowdy

Associate: 

Date:       22 June 2017