Kaur v Minister for Immigration & Anor
[2014] FCCA 1282
•19 June 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KAUR v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 1282 |
| Catchwords: MIGRATION – Judicial review – Migration Review Tribunal – temporary partner visa – whether genuine spousal relationship – whether allegations of family violence required to be considered – whether jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.5F, 474, 476 Migration Regulations1994 (Cth), regs.1.15A, Sch.2, cll.820.211, 820.221 |
| Alsalem v Minister for Immigration & Anor [2013] FCCA 1407 Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476; [2003] HCA 2 Yang & Anor v Minister for Immigration & Anor [2014] FCCA 20 |
| Applicant: | MANPREET KAUR |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 2087 of 2013 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 19 June 2014 |
| Date of Last Submission: | 19 June 2014 |
| Delivered at: | Perth (by video-link to Melbourne) |
| Delivered on: | 19 June 2014 (by video-link to Melbourne) |
REPRESENTATION
| For the Applicant: | In person |
| Counsel for the Respondents: | Mr N Rogers |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
That the application be dismissed.
That the applicant pay the first respondent’s costs in the sum of $4400 by 19 July 2014.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
MLG 2087 of 2013
| MANPREET KAUR |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Edited ex tempore reasons)
Introduction
This is an application for judicial review under s.476 of the Migration Act 1958 (Cth) (“Migration Act”) of a decision of the second respondent, the Migration Review Tribunal (“Tribunal”), made on 15 November 2013 (“Tribunal Decision”). The Tribunal Decision appears at Court Book (“CB”) 130-137. The Tribunal decided to affirm a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration & Border Protection (“Minister”). The Delegate’s Decision is at CB 101-107. The Delegate’s Decision was to refuse the applicant a Partner (Temporary) (Class UK) Subclass 820 visa (“Temporary Partner Visa”).
Background facts
On 11 April 2012 the applicant applied for the Temporary Partner Visa: CB 1-21, claiming that:
a)she was in a relationship with her sponsor, who was an Australian citizen: CB 10; and
b)she and the sponsor were married on 21 March 2012: CB 13 and 25.
On 16 August 2012 the applicant made a claim that she suffered family violence at the hands of her sponsor: CB 26-41. The applicant provided a number of documents in support of this claim including:
a)a psychologist’s statutory declaration dated 15 August 2012: CB 26-41;
b)the applicant’s statutory declaration dated 10 August 2012: CB 62-66; and
c)a social worker/counsellor’s statutory declaration dated 13 August 2012: CB 67-74.
The Delegate’s Decision on 14 December 2012 found that the applicant did not satisfy cl.820.211 of Schedule 2 to the Migration Regulations1994 (Cth) (“Migration Regulations”) and therefore refused the applicant’s application for the Temporary Partner Visa. The applicant applied to the Tribunal on 11 January 2013 for review of the Delegate’s Decision (CB 108-121).
The Tribunal Decision affirming the Delegate’s Decision was made on 15 November 2013.
Tribunal Decision
The Tribunal Decision noted that the applicant had applied for the Temporary Partner Visa on 12 April 2012 on the basis of her relationship with her sponsor, and that the Temporary Partner Visa contained only one subclass for which the criteria were set out in Part 820 of Schedule 2 to the Migration Regulations and which must be satisfied by at least one applicant: CB 131 at para.2.
The Tribunal noted the applicant’s personal details in relation to her birth date in 1982, and her arrival in Australia on 6 April 2009 as a Student Visa holder. The Tribunal also noted that:
a)the sponsor was an Australian citizen born in 1992;
b)the applicant and sponsor said that they met on 7 March 2011 and commenced a serious relationship on 10 July 2011, following which the sponsor asked the applicant to marry him on Christmas Day in 2011, and the parties married on 21 March 2012; and
c)the applicant and sponsor provided the following documentation to the Tribunal:
i)separate statements of the inception and development of their relationship;
ii)marriage certificate;
iii)the sponsor’s birth certificate;
iv)two statutory declarations by friends attesting to the relationship;
v)national police clearances for Australia and India for the applicant;
vi)extracts from the applicant’s Indian passport bio data; and
vii)various reports and declarations relating to alleged family violence: CB 131 at para.4.
Following the lodgement of the application for review with the Tribunal the Tribunal acknowledged the application for review in writing on 14 January 2012 and invited the applicant to provide additional material or written arguments to the Tribunal relating to the issues in the matter. The applicant did not submit any further evidence at that time: CB 131 at para.6.
On 10 September 2013 the Tribunal wrote to the applicant informing her that it had considered the material before it but was unable to make a favourable decision on that information alone: CB 131 at para.7. The applicant was invited to, and did appear before, the Tribunal on 14 November 2013 to give evidence. Evidence was also received from two other persons. The applicant was represented at the Tribunal hearing by her registered migration agent: CB 131-132 at paras.7-9.
The Tribunal summarised the evidence given at the Tribunal hearing as follows:
·The applicant confirmed the detail of the inception and development of her relationship to the sponsor including that she would travel to Sydney most weekends to visit with him; when and how they met; when the sponsor proposed marriage and the date of their marriage;
·The applicant said that she and the sponsor commenced living together after the marriage at an address in a suburb of Sydney;
·The applicant said the sponsor worked casually and received a Centrelink payment, the applicant had no work rights;
·The applicant said that the sponsor always wanted her to provide money to him and that he would often be drunk and gambled and asked her for sex;
·On 17 July 2012 the sponsor slapped the applicant because she would not give him money and he chased her out of the home. The applicant said that she tried to talk to the sponsor but he wouldn’t listen;
·The applicant thought the sponsor loved her a lot;
·The applicant confirmed that she had only met the sponsor’s cousin who attended the wedding. The applicant said that the sponsor’s parents were separated and he had told her the father drank and gambled. There was a history of violence in the sponsor’s family, the applicant had not met any of the sponsor’s siblings but she had spoken to some of them on the phone;
·The applicant said that on the 30 July 2012 the sponsor had taken her jewellery and when she confronted him he assaulted her and slapped her to the ground. The applicant said that the sponsor pulled a knife on her and threatened to kill her. The applicant said that she was raped by the sponsor;
·The applicant said that she had been locked in the house when the sponsor left however she was able to leave because she had a spare key;
·The applicant went to Sydney station and travelled to Melbourne where she stayed with a friend called Khusi;
·The applicant said that she still suffers with the thoughts of her experience at the hands of the sponsor;
·The applicant said that her parents were shocked by her circumstances and she believed that this contributed toward her father’s death by stroke in late November 2012;
·The applicant said that she suffers depression and takes a product obtained without a doctor’s prescription. The applicant had seen a psychologist but could not give details of her appointments. The applicant attends a physiotherapist [psychologist] because of her depressive symptoms;
·The two witnesses spoke in support of the relationship between the applicant and her sponsor. They confirmed that the applicant regularly travelled to Sydney and one attended the wedding. Both witnesses thought the marriage was genuine and were shocked to learn of the violence suffered by the applicant at the hands of her sponsor. Both had observed the impact of the violence on the applicant’s physical and psychological wellbeing;
·The applicant said that she was not aware that she would need to provide evidence of the type requested by the Tribunal and she had only considered that she should save herself – to save her life.
CB 132-133 at para.10.
The Tribunal also had submitted to it statutory declarations made by the two witnesses for the applicant in support of their oral evidence to the Tribunal: CB 133 at para.11.
The Tribunal noted that there was a two-stage process for partner visas under which an applicant must hold a provisional visa in order to be granted a permanent visa, with the provisional visa enabling an applicant to remain in Australia on a temporary basis, and the grant of a permanent visa subsequently being considered dependent upon whether the relationship continued to last for a period of two years: CB 133 at para.13. The Tribunal noted the criteria for the grant of a Temporary Partner Visa under the applicable subclass, Subclass 820 of Schedule 2 to the Migration Regulations. By eliminating the various other requirements under Subclass 820 the Tribunal came to the conclusion that the only subclause relevant to the applicant’s circumstances was cl.820.211(2) of Schedule 2 to the Migration Regulations: CB 134 at para.22, that is, it found that the applicant did claim to be the spouse of the sponsor who is an Australian citizen for the purposes of cll.820.211(2)(a) and 820.221 of Schedule 2 to the Migration Regulations: CB 134 at para.23.
The Tribunal considered the definition of ‘spouse’ in s.5F of the Migration Act which provides that a person is the spouse of another where the two persons are in a married relationship. The Tribunal noted that:
Persons in a married relationship must be married to each other under a marriage that is valid for the purposes of the [Migration] Act, there must be a mutual commitment to a shared life as husband and wife to the exclusion of all others, the relationship must be genuine and continuing, and the couple must live together, or not live separately and apart on a permanent basis: s.5F(2)(a)-(d) [of the Migration Act]. In forming an opinion as to these matters, regard must be had to all of the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the parties’ household and their commitment to each other as set out in r.1.15A(3) [of the Migration Regulations], …
CB 134 at para.24.
The Tribunal accepted that the parties were validly married for the purposes of s.5F(2)(a) of the Migration Act on the basis of a certificate of marriage showing that the parties were married at Quaker’s Hill in New South Wales on 21 March 2012: CB 134 at para.25.
The Tribunal then went on to consider:
a)the financial aspects of the relationship;
b)the nature of the household;
c)the social aspects of the relationship; and
d)the nature of the commitment of each of the partners to their relationship: see Migration Regulations, reg.1.15A(3).
The Tribunal said that the applicant provided minimal evidence of the financial aspects of her claimed relationship with the sponsor, and that the applicant did not have work rights and had little funds of her own, whilst the applicant’s oral evidence was that the sponsor worked casually and received some form of Centrelink payment. The Tribunal considered that the applicant had been put on notice by the Delegate and by the Tribunal as to the types of evidence required to demonstrate the financial aspects of the relationship: CB 134 at paras.26-27. The Tribunal was not satisfied due to an absence of evidence that the parties had pooled financial resources: CB 135 at para.28.
As to the nature of the household the Tribunal held that there was no objective evidence before the Tribunal that the applicant’s claim that she had commenced living with the sponsor after their wedding ceremony in March 2012 was correct. Further, there was no objective evidence that the parties established a joint household including the sharing of household responsibilities: CB 135 at para.29.
In relation to the social aspects of the relationship the Tribunal noted that:
a)the applicant had provided a few photographs of herself and the sponsor at the wedding ceremony and at what appeared to be a restaurant, but no other photographs of the parties in social settings or undertaking activities together: CB 135 at para.30;
b)the applicant had tendered statutory declarations about the relationship, and the applicant had provided statutory declarations from two friends who have known her through their studies in Australia, one of whom was a witness at the wedding ceremony. The Tribunal said that:
… in assessing these declarations notes that in particular the sponsor was only known to the declarants briefly and the comments relating to the genuine nature of the relationship are general and unconvincing.
(CB 135 at para.31) and
c)the applicant has met only one relative of the sponsor, a cousin who attended the wedding, but has not met any of the sponsor’s immediate family and there is no evidence of the applicant’s family’s support of her relationship with the sponsor. The Tribunal said that there was no objective evidence that the applicant and her sponsor were recognised socially as a spousal couple. The Tribunal was not satisfied that the parties were considered by family and friends as being in a committed spousal relationship: CB 135 at para.32.
In relation to the nature of the parties’ commitments to each other the Tribunal noted that the parties married in March 2012 after a period of 12 months during which the applicant travelled to Sydney each weekend, and following which the applicant claims she had lived with the sponsor until she left the home in late July 2012. The Tribunal reiterated that there was no objective evidence before the Tribunal to confirm that the parties lived together during that time, and additionally said that there was no evidence before the Tribunal that the applicant and her sponsor had a mutual commitment to the relationship, that they provided emotional support to one another, or that they had made long-term plans for their future. Accordingly, while the Tribunal was satisfied that the applicant and the sponsor were legally married, the Tribunal was not satisfied having regard to the circumstances of the matter that the applicant and sponsor had a mutual or long-term commitment to their spousal relationship: CB 135 at paras.33-34.
Having regard to its findings the Tribunal was not satisfied that at the time of the visa application or the time of the Tribunal Decision, the parties were in a spousal relationship consistent with that defined in s.5F of the Migration Act, and that the applicant did not meet cll.820.211(2)(a) and 820.221 of Schedule 2 to the Migration Regulations.
The Tribunal noted that the applicant appeared to have made a claim that she was the victim of family violence for the purposes of cl.820.221(3)(b)(i), but noted that in order for the Tribunal to be satisfied that that claim was made out, the Tribunal had to be satisfied that the applicant would have satisfied cl.820.211(2) had the relationship not ceased. Given the Tribunal’s finding that the applicant did not meet cl.820.211(2)(a) the Tribunal determined that the claim of family violence did not have to be assessed: CB 136 at para.37.
The Tribunal therefore found that the applicant did not satisfy the criteria for the grant of a Temporary Partner Visa and affirmed the Delegate’s Decision not to grant the applicant a Temporary Partner Visa: CB 136 at paras.38-39.
Grounds of review
The applicant’s grounds of review are set out in the application as follows:
1.Not satisfied with Tribunal Decision
2.I believe I had true relation with my ex husband.
3.My self Im domestic violence from my ex husband which I already prove. So that is why Im not satisfied with MRT decision. So I need to appeal in Court.
The application was supported by an affidavit of the applicant dated 29 November 2013, the relevant content of which consists of two paragraphs as follows:
1.My self not satisfied with the orders of MRT of immigration.
2.Its out of law to make orders without reason.
By order of a Registrar of the Court dated 19 February 2014 the applicant was given until 22 May 2014 to, amongst other things, file written submissions. On 20 May 2014 the applicant filed an affidavit in which she indicates that she is submitting as written submissions a statutory declaration from Satinder Pal Singh declared on 16 May 2014 attached to her affidavit. The statutory declaration attests to matters relating to the relationship of the applicant and her spouse relevant to the Tribunal’s consideration of the social aspects of their relationship and the nature of their commitment to each other: Migration Regulations, reg.1.15A(3)(c) and (d). As such, it is simply factual material which was, or ought to have been to the extent that it was not, before the Tribunal, and as factual material going to the merits of the Tribunal’s consideration is not material that can be considered by the Court on a judicial review application in respect of which the Court looks to whether or not the Tribunal has committed jurisdictional error, unless bias or a want of procedural fairness is alleged: see SZJBD v Minister for Immigration & Citizenship [2008] FCA 922 at para.24 per Siopis J; WZAMV v Minister for Immigration & Anor [2008] FMCA 1284 at para.57 per Lucev FM.
Consideration
Relevant legislation
Section 5F of the Migration Act defined ‘spouse’ at the time of the application 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 of the Migration Regulations, sets out the arrangements for the purposes of determining whether one or more of the conditions in s.5F(2)(a), (b), (c) and (d) of the Migration Act exist for the purposes of s.5F(3) of the Migration Act, and provides 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:
(a) a Partner (Migrant) (Class BC) visa; or
(b) a Partner (Provisional) (Class UF) visa; or
(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.
(4) If the Minister is considering an application for a visa of a class other than a class mentioned in subregulation (2), the Minister may consider any of the circumstances mentioned in subregulation (3).
Clause 820.211 of Schedule 2 to the Migration Regulations at the time the applicant applied for the Temporary Partner Visa relevantly provided that:
(1)The applicant:
(a)is not the holder of a Subclass 771 (Transit) visa; and
(b)meets the requirements of subclause (2), (3), (4), (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
….
Clause 820.221(3) of Schedule 2 to the Migration Regulations at the time of the Tribunal Decision relevantly provided that:
(3) An applicant meets the requirements of this subclause if:
(a) the applicant would continue to meet the requirements of subclause 820.211(2), (3), (4), (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) …
Jurisdictional error
The Tribunal Decision is only reviewable by this Court if it is affected by jurisdictional error: Migration Act, ss.474 and 476; Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476 at 506 per Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ; [2003] HCA 2 at para.76 per Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ. An error by the Tribunal will only constitute jurisdictional error if the Tribunal:
a)identifies a wrong issue;
b)asks the wrong question;
c)ignores relevant material; or
d)relies on irrelevant material,
in such a way that the Tribunal’s exercise or purported exercise of power is thereby affected resulting in a decision exceeding or failing to exercise the authority or powers given under the relevant statute: Minister for Immigration & Multicultural Affairs v Yusuf& Anor (2001) 206 CLR 323 at 351 per McHugh, Gummow and Hayne JJ; [2001] HCA 30 at para.82 per McHugh, Gummow and Hayne JJ.
Grounds of review – ground 1
The fact that the applicant is not satisfied with the Tribunal Decision does not allege, let alone establish, jurisdictional error by the Tribunal. The fact that an applicant is not satisfied with the Tribunal Decision is therefore not a basis for this Court to embark upon a review of the Tribunal Decision. No jurisdictional error is established by ground 1.
Grounds of review – ground 2
The fact that the applicant believes that she was in a true relationship with her ex-husband does not allege, let alone establish, jurisdictional error in the Tribunal Decision. Moreover, the Tribunal set out, assessed and weighed the evidence as to the nature of the relationship between the applicant and her sponsor, and determined that it was not a spousal relationship when regard was had to the definition of ‘spouse’ as set out above. When the Tribunal has set out, assessed and weighed the evidence in such circumstances it is not for this Court to re-exercise the Tribunal’s fact-finding power. To do so would be merits review not judicial review. See Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 at 272 and 281-282 per Brennan CJ; Toohey, McHugh and Gummow JJ. The Court also observes that the Tribunal was not obliged to accept all or any part of the evidence for the applicant: Randhawa vMinister for Immigration, Local Government & Ethnic Affairs (1994) 124 ALR 265 at 278 per Beaumont J. No jurisdictional error is established by ground 2.
Grounds of review – ground 3
Although not expressly put in this way by the applicant, ground 3 appears to assert that there may have been a jurisdictional error by the Tribunal because it failed to consider whether the applicant had suffered family violence. In Alsalem v Minister for Immigration & Anor [2013] FCCA 1407 (“Alsalem”) this Court had to consider the same issue (family violence) in circumstances where a husband was alleging that his marital relationship with his ex-wife was genuine. In Alsalem the Court said as follows:
16. In his (further) amended application the applicant alleged:
1. My relationship with my ex-wife was genuine, the MRT failed to accept the family violence.
2. The MRT failed to consider the issue of domestic violence, failed to refer my case to independent expert.
3. The MRT acted contrary to domestic violence provisions.
17. A large part of the application and the applicant’s submissions at the hearing of this matter turned on the absence from the Tribunal’s reasons of any reference to the applicant’s allegation that he had been a victim of domestic violence at the hands of his former wife, the sponsor. However, in the circumstances, the Tribunal was not required to consider that issue. The issue of domestic violence, or family violence as it is termed in the Regulations, will only arise for consideration if the Tribunal considers that the parties to a spousal relationship were in a genuine relationship at the time one of them made an application for a spouse visa. This is apparent from the terms of cl.820.221(3) of sch.2 to the Regulations …
It will be noted that that provision refers to cl.820.211 which is a criterion that must be satisfied at the time a visa application is lodged, …
18. The Tribunal concluded that the applicant and his then-wife had had no mutual commitment to each other to the exclusion of all others and, implicitly, that this had been so from the outset of the marriage. The Tribunal made that conclusion more explicit by finding that the applicant did not meet the requirements of cl.820.211(2)(a). As the Tribunal found that the applicant was not, at the time of the application, the spouse of an Australian citizen in a manner recognised by the Act, there was no need for it to consider whether cl.820.221(3) applied to his circumstances.
19. The remaining question therefore is whether the Tribunal erred in concluding that the applicant’s marriage did not satisfy the requirements of the Regulations.
20. The applicant’s allegation “my relationship with my ex-wife was genuine” reflects the concern stressed in his address to the Court that he had been serious about the marriage and that, had it been up to him, it would have continued. However, that is not the test. Under the Act, to be spouses, the two persons in question must have a mutual commitment to a shared life as husband and wife to the exclusion of all others. The Tribunal found, as was open on the evidence, that the applicant’s former wife lacked such a commitment and that the relationship was neither genuine nor continuing, noting that, even on the applicant’s version of events, the relationship had broken down before the visa application was lodged. Regardless of the applicant’s attitude to the marriage, if his then wife had not been committed to it, the mutual commitment required by the Act was not present.
Alsalem at paras.16-20 per Judge Cameron. The Court notes that cl.820.221(3) of Schedule 2 to the Migration Regulations as set out in paragraph 29 above is relevantly in the same terms as it was in Alsalem.
The passages cited in Alsalem not only make the point that the Tribunal is only obliged to consider the issue of family violence if it is has found that the parties were in a genuine spousal relationship, but also the point that it is for the Tribunal on the evidence to determine whether or not there was the mutual commitment required for the relevant spousal relationship under the Migration Act.
In this case the Tribunal was not satisfied, principally it appears because of lack of evidence, that the applicant and sponsor were in a genuine spousal relationship at the time of the Temporary Partner Visa application. In the circumstances, the Tribunal was not, therefore, obliged to consider the issue of family violence. The Court, and its predecessor the Federal Magistrates Court, have, in respect of other types of partner and spouse visas determined that it is unnecessary to consider the issue of family or domestic violence where the Tribunal has already determined that the parties do not in fact live in a genuine spousal relationship: see, for example, Yang & Anor v Minister for Immigration & Anor [2014] FCCA 20 at paras.28-36 per Judge Lucev; Collins v Minister for Immigration [2003] FMCA 571 at para.42 per McInnes FM; Guven v Minister for Immigration & Anor [2006] FMCA 311 at para.22 per Hartnett FM.
In the above circumstances, ground 3 is not made out, and does not establish jurisdictional error by the Tribunal.
Generally
By applying the definition of ‘spouse’ in s.5F of the Migration Act, and, in particular, by having regard to the conditions in s.5F(2) and (3) of the Migration Act for the determination of whether or not persons are in a spousal relationship and the matters set out in reg.1.15A(3) of the Migration Regulations in order to determine if the applicant met the definition of a ‘spouse’ for the purposes of meeting the requirements for a Temporary Partner Visa under cl.820.211 of Schedule 2 to the Migration Regulations, the Tribunal had regard to the correct legal test and relevant considerations in order to assist it to determine the determinative factual issues in this case. By not having regard to the family violence issues raised by the applicant the Tribunal did not fail to have regard for a relevant consideration, but rather it properly disregarded an irrelevant consideration. In these circumstances, and for the reasons explained in relation to the individual grounds above, no jurisdictional error was made out by the applicant.
Conclusion and orders
The Court has concluded that none of the three alleged grounds establish any jurisdictional error in the Tribunal Decision. It follows that there must be an order dismissing the application.
The usual rule as to costs applies, and the applicant must pay the first respondent’s costs, in the amount sought of $4400, by 19 July 2014.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 19 June 2014
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