Kaur v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 1065
Federal Circuit and Family Court of Australia
(DIVISION 2)
Kaur v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 1065
File number(s): ADG 357 of 2019 Judgment of: JUDGE LUCEV Date of judgment: 21 December 2022 Catchwords: MIGRATION – Application for judicial review – decision of Administrative Appeals Tribunal – citizen of India – whether member of family unit – whether information put or required to be put to applicant – whether regulation misconstrued – whether relief futile – whether jurisdictional error Legislation: Migration Act 1958 (Cth) ss 5F, 359A, 359AA, 474, 476
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 13.06
Migration Regulations 1994 (Cth) regs 1.12, 5.19, Sch 2 cll 187.235, 187.311, 4005
Cases cited: Australian Fisheries Management Authority v PW Adams Pty Ltd[No 2] (1995) 61 FCR 314; (1995) 22 AAR 261; (1995) 134 ALR 51; (1995) 39 ALD 481
CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496; (2016) 70 AAR 413
Eugene Cho Pty Ltd v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 2020; (2021) 361 FLR 340
Ludgero v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1060; (2021) 358 FLR 215
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1
Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225
MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392; (2015) 238 FCR 158
Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1
R v Commonwealth Court of Conciliation & Arbitration; Ex parte Ozone Theatres (Aust) Ltd [1949] HCA 33; (1949) 78 CLR 389; (1949) ALR 675; (1949) 23 ALJ 278
SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2; (2006) 150 FCR 214; (2006) 230 ALR 1
Division: Division 2 General Federal Law Number of paragraphs: 35 Date of last submission/s: 10 November 2022 Date of hearing: 10 November 2022 Place: Perth Applicant: In person by phone via CISCO Webex with the assistance of an interpreter Counsel for the First Respondent: Ms B Rayment via CISCO Webex Solicitor for the First Respondent: Sparke Helmore Second Respondent: Submitting appearance, save as to costs ORDERS
ADG 357 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AMARDEEP KAUR
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE LUCEV
DATE OF ORDER:
21 DECEMBER 2022
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to read “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.The originating application filed 8 October 2019 be dismissed.
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 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LUCEV
Introduction
Before the Court is an application filed on 8 October 2019 by the applicant, Ms Amardeep Kaur (“Ms Kaur”), for judicial review (“Judicial Review Application”), pursuant to s 476 of the Migration Act 1958 (Cth) ("Migration Act"), of a decision of the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively). The Tribunal Decision affirmed a decision of a delegate (“Delegate's Decision” and "Delegate" respectively) of the first respondent, now the Minister for Immigration, Citizenship and Multicultural Affairs (“Minister”), affirming the Delegate's Decision not to grant Ms Kaur a Regional Employer Nomination (Permanent) (subclass 187) visa (“REN Visa”).
There were three other applicants in the Judicial Review Application: Ms Kaur’s then husband, Mr Singh, and their two children. For convenience, when referring to the Tribunal Decision, these applicants will be referred to as Mr Singh and the Third and Fourth Applicants respectively. The Tribunal remitted Mr Singh’s and the Third and Fourth Applicants’ REN Visa applications to the Minister for reconsideration with a direction that Mr Singh met the criteria for a subclass 187 (Regional Sponsored Migration Scheme) visa.
An affidavit affirmed by Ms Kaur on 8 October 2019 (“Kaur Affidavit”) was not read into evidence as it did no more than annex the Tribunal Decision which appears in the Court Book (“CB”), the CB being marked as Exhibit 1 in the proceedings. The Tribunal Decision appears at CB 217-220.
Background
The relevant background to the matter is as follows:
(a)Ms Kaur is a citizen of India who applied for the REN Visa as a member of the same family unit as Mr Singh and the Third and Fourth Applicants: CB 1-19;
(b)a Medical Officer of the Commonwealth (“MOC”) determined that Ms Kaur failed to meet relevant health requirements (“Determination” and “Health Requirement” respectively) and therefore did not meet the Public Interest Criteria in cl 4005(1)(c)(ii)(A) (“PIC 4005”) of Sch 2 to the Migration Regulations 1994 (Cth) (“Migration Regulations”): CB 65-67. The Determination was made on the basis that Ms Kaur has a medical condition which would result in a significant cost to the Australian community in the areas of health care and community services: CB 65-67;
(c)on 11 October 2018 the Delegate’s Decision was to refuse Ms Kaur’s application for the REN Visa on the basis that she did not satisfy cl 187.235(2) of Sch 2 to the Migration Regulations. Clause 187.235(2) of Sch 2 to the Migration Regulations required Ms Kaur to meet PIC 4005: CB 92-99;
(d)on 24 October 2018 Ms Kaur, together with Mr Singh and the Third and Fourth Applicants, applied to the Tribunal for review of the Delegate’s Decision: CB 100-102;
(e)on 8 November 2018 under s 359A of the Migration Act the Tribunal invited Ms Kaur (“Invitation”) to comment on another opinion from a MOC that determined that Ms Kaur did not meet PIC 4005: CB 107-110;
(f)on 20 and 22 November 2018 Ms Kaur requested that the Tribunal obtain a further opinion from another MOC and an extension of time to respond to the Invitation: CB 120-123;
(g)on 8 January 2019 another MOC made a determination that Ms Kaur failed to meet PIC 4005: CB 124-126;
(h)on 19 June 2019 the Tribunal invited Ms Kaur to attend a hearing on 25 June 2019 (“First Tribunal Hearing”): CB 160-163;
(i)later on 19 June 2019 Ms Kaur’s representative wrote to the Tribunal requesting an adjournment of the First Tribunal Hearing to a date after 16 July 2019: CB 156-159;
(j)later still on 19 June 2019 the Tribunal wrote to Ms Kaur’s representative to advise that the First Tribunal Hearing had been rescheduled to 22 July 2019: CB 160-163;
(k)on 18 July 2019 Ms Kaur’s representative wrote to the Tribunal to confirm Ms Kaur’s attendance at the First Tribunal Hearing: CB 165-168;
(l)also on 18 July 2019 Ms Kaur provided to the Tribunal a copy of a final divorce application to be heard before the then Federal Circuit Court of Australia (as this Court was then known) on 9 September 2019: CB 169-175;
(m)on 22 July 2019 Ms Kaur attended the First Tribunal Hearing with her migration agent and with the assistance of a Punjabi interpreter. The First Tribunal Hearing went for slightly over half an hour: CB 176-178;
(n)on 29 July 2019 following the First Tribunal Hearing Ms Kaur’s representative supplied documents (“Documents”) to the Tribunal, namely a lease deed, receipts of rental payment, an employer reference letter from Ms Kaur’s previous employer, an employment confirmation letter from Ms Kaur’s present employer and a recent hospital appointment letter: CB 179-201;
(o)on 19 August 2019 the Tribunal invited Ms Kaur to attend a further hearing on 9 September 2019 (“Second Tribunal Hearing”). The Tribunal noted in its invitation as follows “Please note that this hearing is only for Mrs Amardeep Kaur to attend to give evidence. Please advise the [Tribunal] as soon as possible if you do not wish to attend this hearing.”: CB 202-205;
(p)on 28 August 2019 Ms Kaur’s representative wrote to the Tribunal to confirm Ms Kaur’s attendance at the Second Tribunal Hearing: CB 206-209;
(q)Ms Kaur attended the Second Tribunal Hearing with her migration agent and with the assistance of a Punjabi interpreter. The Second Tribunal Hearing went for over an hour: CB 212-214;
(r)on 11 September 2019 the Tribunal Decision was to affirm the decision not to grant Ms Kaur the REN Visa: CB 217-220.
Tribunal Decision
In the Tribunal Decision the Tribunal:
(a)set out the background to the application for review to the Tribunal: CB 218 at [1]-[4];
(b)concluded that the Delegate’s Decision should be affirmed in relation to Ms Kaur: CB 218 at [5];
(c)set out the relevant criteria and legislation: CB 218 at [6];
(d)set out its consideration of Ms Kaur’s circumstances in relation to the outcomes of the different MOC opinions: CB 218 at [7];
(e)noted that Ms Kaur’s inability to satisfy the Delegate due to her medical condition was no longer the dispositive issue as evidence had been presented to support the claim that Ms Kaur and Mr Singh were no longer in a spousal relationship: CB 218 at [8];
(f)set out the Documents supplied to the Tribunal by Ms Kaur’s representative on 29 July 2019 that were substantiated in testimony by Ms Kaur as true and correct: CB 218-219 at [9];
(g)stated it had heard from Mr Singh at the Tribunal Hearing that:
(i)he had been separated from Ms Kaur since 2018, and that she lived at a different address to he and their children;
(ii)Ms Kaur only saw the children on weekends;
(iii)a reconciliation with Ms Kaur was not possible;
(iv)a final divorce application had been filed on 9 September 2019; and
(v)the costs of the caring for the children were shared between Mr Singh and Ms Kaur: CB 219 at [10];
(h)noted that at the Second Tribunal Hearing that Ms Kaur had stated that:
(i)she and Mr Singh were separated as at 23 May 2018:
(ii)there was no possibility of reconciliation with Mr Singh;
(iii)she and Mr Singh had lived separately since their separation date; and
(iv)she only saw her children on weekends at community events and at temple,
and in answer to the Tribunal’s questions as to their separate social status, confirmed that she and Mr Singh had separate bank accounts although they previously held a joint account prior to separation: CB 219 at [11];
(i)noted that the substantial body of written and verbal evidence provided by Ms Kaur and Mr Singh led it to conclude that:
(i)they were no longer in a genuine spousal relationship;
(ii)they no longer had a mutual commitment to a shared life as a married couple;
(iii)the relationship between them was no longer genuine or continuing;
(iv)they now live separately and apart on a permanent basis; and
(v)they were both persuasive and appeared to answer the Tribunal honestly and without obfuscation in spite of their displayed apparent emotional sadness: CB 219 at [12];
(j)defined “spouse” as per s 5F of the Migration Act and was satisfied that Ms Kaur and Mr Singh were no longer in a spouse relationship as thus defined: CB 219 at [13];
(k)found that:
(i)Ms Kaur and Mr Singh were no longer in a spousal relationship;
(ii)Ms Kaur was no longer a member of Mr Singh’s family unit as defined in reg 1.12(2) of the Migration Regulations: CB 219 at [14];
(l)noted that as Ms Kaur had declared that she had only held Student and Bridging visas up until the time of the REN Visa application, the definition of “family unit” (in cl 187.311 of Sch 2 to the Migration Regulations) did not apply, and that Ms Kaur was not a member of the family unit of a subclass 187 visa holder and therefore did not meet cl 187.311 of Sch 2 to the Migration Regulations: CB 219 at [14];
(m)noted that Mr Singh had to meet the criteria in cl 187.235 of Sch 2 to the Migration Regulations at the time of the Tribunal Decision and that Mr Singh, and the Third and Fourth Applicants as members of Mr Singh’s family unit, must meet PIC 4005, but that it did not have current evidence before it to demonstrate the ability of Mr Singh and the Third and Fourth Applicants to meet PIC 4005 at the time of the Tribunal Decision, but that in light of the Tribunal’s finding that Ms Kaur was not a member of Mr Singh’s family unit, considered that Mr Singh’s application should be reconsidered against the requirement in cl 187.235 of Sch 2 to the Migration Regulations: CB 219-220 at [15];
(n)found that Mr Singh met cl 187.231 of Sch 2 to the Migration Regulations and that the Third and Fourth Applicants’ applications should therefore be reconsidered, and that the appropriate course of action was to remit the applications of Mr Singh and the Third and Fourth Applicants to the Minister for reconsideration: CB 220 at [16] and [18];
(o)affirmed the Delegate’s Decision not to grant Ms Kaur the REN Visa: CB 220 at [17].
Judicial Review Application
Litigation History
The Judicial Review Application was filed in the Adelaide Registry of the Court (then the Federal Circuit Court of Australia) on 8 October 2019. Given the more than three year delay in the matter coming to hearing it is appropriate to set out the litigation history of the matter, which is as follows:
(a)on 21 November 2019 a Registrar of this Court made consent orders programming the matter and ordering that the matter be listed for a final hearing on a date to be advised;
(b)in May 2022 the matter was docketed to the presiding Judge in the Perth Registry of the Court;
(c)on 19 May 2022 the parties were notified of a directions hearing listed for 24 May 2022 before the presiding Judge;
(d)on 24 May 2022 the parties attended a directions hearing where orders (“May 2022 Orders”) were made that:
(i)Ms Kaur file and serve any amended Judicial Review Application, further affidavits and an outline of submissions by 10 October 2022;
(ii)the Minister file and serve any amended response, affidavits in reply, and an outline of submissions by 24 October 2022; and
(iii)the matter be listed for a final hearing by video link on 10 November 2022 at 11.00am AWST/1.30pm ACDT before Judge Lucev,
and noting that the matter may be dismissed for non-appearance pursuant to r 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) if Ms Kaur did not appear at the final hearing;
(e)a copy of the May 2022 Orders, and a Notice of Listing advising that the matter was listed for hearing by videoconference on 10 November 2022, were emailed to the parties later on 26 May 2022;
(f)Ms Kaur filed no submissions or documents pursuant to the May 2022 Orders; and
(g)on 17 October 2022 the Minister filed an outline of submissions pursuant to the May 2022 Orders.
Grounds
There are seven grounds in the Judicial Review Application as follows:
1.The Tribunal committed jurisdictional error by not considering that the applicant had made a valid application as a secondary applicant before the Department of Home Affairs and before the tribunal. The Tribunal proceeded on an absolutely wrong presumption that the applicant was no more a member of the family unit of the primary applicant.
2.The Tribunal committed a jurisdictional error by not taking into account the detailed submissions presented by the present applicant that the divorce matter was pending in the Federal Circuit Court but had not been finalized. The tribunal has given the impugned decision on the basis of presumptions and assumptions. The Tribunal has proceeded to pass the order without even asking the applicant for a copy of the divorce order. So much so there is no final order or decree of nullity of marriage until the day of lodging the present application. The order of the Tribunal only to the extent that it relates to the present applicant is liable to be quashed on this ground alone.
3.That the Tribunal committed a jurisdictional error by applying the wrong test and by proceeding on a wrong notion, despite admitting, that the present applicant was the secondary applicant. The tribunal observed:
“He confirmed to the Tribunal that reconciliation was not possible and that a Final Divorce Application had been submitted which would be heard by the Court on 9 September 2019. He also stated that the cost of caring for the children was shared between him and Ms. Kaur.”
The tribunal committed an error by not considering that the real intention of the legislation and the test to be applied was to determine whether on the date of the decision, the applicant had been divorced or not and whether any evidence had been submitted in this regard. That the Tribunal has committed a jurisdictional error by wrongly reaching a conclusion that could not be supported by any evidence.
4.That the tribunal fell into jurisdictional error by not considering the fact that the regulation 1.12 of the Migration Regulations which lays down the definition of the member of the family unit for grant of different visas clearly provides:
Member of the family unit (1) This regulation has effect for the purposes of the definition (the main definition) of member of the family unit in subsection 5(1) of the Act.
General rule (2) A person is a member of the family unit of another person (the family head) if the person:
(a) is a spouse or de facto partner of the family head; or
(b)is a child or stepchild of the family head or of a spouse or de facto partner of
the family head (other than a child or step-child who is engaged to be married or has a spouse or de facto partner) and:
(i) has not turned 18; or
(ii)has turned 18, but has not turned 23, and is dependent on the family
head or on the spouse or de facto partner of the family head; or
(iii) has turned 23 and is under paragraph 1.0SA(l)(b) dependent on the family head or on the spouse or de facto partner of the family head; or
(c) is a dependent child of a person who meets the conditions in paragraph (b). This sub-regulation has effect subject to the later sub regulations of this regulation.
Thus, a person is still a spouse for all intents and purposes until a final decree of divorce has been granted by a competent court.
5. The Tribunal committed a jurisdictional error by failing to comply with s.359AA of the Migration Act 1958. (the Act). As required by law under s359AA (l)(a), the Tribunal should have given to the applicant clear particulars of any information which the Tribunal considers would be the reason, or part of the reason, for affirming the decision under review; and (b)
(i) ensure, as far as is reasonably practicable, that the applicant understood why it was relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(ii)invite the applicant to comment on or respond to it; and
(iii)advise the applicant that he or she may seek additional time to comment on or respond to the information; and
(iv)if the applicant seeks additional time to comment on or respond to the information – adjourn the review, if the Tribunal considers that the application reasonably needs additional time to comment on or respond to the information.
The Tribunal made a jurisdictional error under s.3 59AA of the Act by failing to give the applicant sufficient particulars and an opportunity to respond to the Tribunal's conclusion that the applicant is deemed to be divorced in the absence of a divorce decree and therefore resultantly would cease to be a member of the family unit of the p1imary applicant.
The applicant was never asked to provide a copy of the decree of divorce and was not given an opportunity to respond to this alleged test that the divorce order when granted would result in making the applicant ineligible as she would then cease to be a member of the family unit. What to talk of the opportunity to respond or ask for a copy of the final decree of divorce, this alleged decree has not been passed even till the date of filing of this application.
6.That the Tribunal has committed a jurisdictional error in not giving the Applicant the information which was clear and, in a material, particular. The Tribunal did not comply with Section 359AA as it did not explain what an opportunity to respond entailed; that is, it did not explain that a response could be in writing, such that it could have offered an adjournment to go and make their own decision and explore their options regarding the information sought by the Tribunal had to be provided by them to that adverse information and provide a meaningful response. In the present case, the Tribunal even failed to give basic information to the applicant.
7.That the Tribunal committed a jurisdictional error by making its decision as far as it relates to the applicant on the totally wrong ground in as much as it observed:
“The Tribunal finds that as Ms Kaur and Mr Singh are no longer in a spousal relation, she is no longer a member of Mr Singh’s family unit as defined in r.1.12(1). As was declared by Ms Kaur on her Form 80, she had only held Student and Bridging visas up until the time of application. Therefore, the definition of the family unit in 1.12(12) does not apply. Accordingly, Ms Kaur is not a member of the family unit of a 187 visa holder therefore does not meet cl 187.311”
Filling of form 80 and grant of bridging visas have no bearing whatsoever with the bone of contention which was regarding the applicant being a member of the family unit. Rather, on the contrary, this fact foes in favour of the applicant.
Ms Kaur’s submissions
Ms Kaur did not file written submissions in support of the Judicial Review Application: see [6(f)] above.
In oral submissions at hearing: Transcript pp 3 and 5, Ms Kaur submitted that:
(a)the Tribunal declared her a non-family member before she had received the divorce certificate, that is at a time when the final divorce application was still pending and before she got her divorce certificate;
(b)the divorce certificate was given on 9 September 2019;
(c)the “mistake” that the Tribunal made was that it did not wait for the divorce to come through;
(d)according to s 359AA of the Migration Act she was “still a family member until [she] receive[s] the divorce certificate”, and it was not fair that the Tribunal Decision was given without hearing her side of the situation, or that she was not “given the opportunity to put [her] side forward” and at a time when she did not even have the divorce certificate;
(e)if she was given some time, maybe she could have “saved” the marriage and not have gone through divorce; and
(f)she is not only a wife but “also a mother, a single mother” and that she sees her children on weekends.
Minister’s submissions
In summary the Minister submitted that:
(a)even though the divorce was still pending Ms Kaur did not meet the “member of the family unit” criteria in in cl 187.311 of Sch 2 to the Migration Regulations, and therefore grounds 1 to 4 could not be made out;
(b)the Tribunal did put information to Ms Kaur, but the dispositive issue was one to which s 359A(4)(b) of the Migration Act applied, and therefore grounds 5 and 6 could not be made out;
(c)the Tribunal’s finding that Ms Kaur did not satisfy reg 1.12(12) of the Migration Regulations was plainly correct; and
(d)as the divorce of Ms Kaur and Mr Singh has now been finalised, and given the other evidence, the grant of relief would, in any event, be futile because the Tribunal on further review could only once again affirm the Delegate’s Decision.
Requirement for jurisdictional error
For present purposes it suffices to observe that this Court may set aside the Tribunal Decision upon judicial review if it is affected by jurisdictional error: Migration Act, ss 474 and 476; Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1. An instance where 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 thus affected resulting in a decision exceeding, or a failure to exercise, any authority or powers given to the Tribunal under the Migration Act, may constitute a jurisdictional error: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ.
It is not within the jurisdiction of this Court to review the merits of the Tribunal Decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1 (“Wu Shan Liang”); CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.
Grounds 1 to 4
In grounds 1 to 4 Ms Kaur essentially argues that there was jurisdictional error in the Tribunal Decision because the Tribunal found her not to be a “member of the family unit” before she had received a divorce certificate from this Court.
Central to the disposition of this matter are the relevant statutory provisions. In order to meet the criteria for the REN Visa Ms Kaur had to meet the criteria set out in cl 187.311 of Sch 2 to the Migration Regulations which provided as follows:
The applicant:
(a)is a member of the family unit of a person (the primary applicant) who holds a Subclass 187 visa granted on the basis of satisfying the primary criteria for the grant of the visa; and
(b) made a combined application with the primary applicant.
The definition of “member of the family unit” is set out in reg 1.12(2)(a) of the Migration Regulations and relevantly provides as follows:
(2)A person is a member of the family unit of another person (the family head) if the person:
(a) is a spouse or de facto partner of the family head; …
The definition of “spouse” of another person is set out in s 5F of the Migration Act as follows:
(1) For the purposes of this Act, a person is the spouse of another person (whether of the same sex or a different sex) 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 a married couple 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.
The Court notes that each of paras (a), (b), (c) and (d) of s 5F(2) of the Migration Act is connected by the word “and”. In Australian Fisheries Management Authority v PW Adams Pty Ltd[No 2] (1995) 61 FCR 314; (1995) 22 AAR 261; (1995) 134 ALR 51; (1995) 39 ALD 481 (“Adams”) the Full Court of the Federal Court was dealing with fisheries management legislation, and in particular, a provision which provided that certain objectives “must be pursued by the Minister and the Authority in the administration of the Act, … and by the Authority in the performance of its functions”. Each of the five objectives was conjoined by the use of the word “and”. The Full Court of the Federal Court held that the use of the word “must”, and the linking of each of the five objectives with the word “and”, meant that each objective must be pursued “individually” by the Minister and by the Authority: Adams FCR at 332 per Sheppard J (with whom Tamberlin J FCR at 334 and Lehane J FCR at 336 agreed). Adams was followed by this Court (then the Federal Circuit Court of Australia) in Eugene Cho Pty Ltd v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 2020; (2021) 361 FLR 340 at [25] per Judge Lucev in relation to the conjoining nature of “and” for the purposes of various paragraphs in reg 5.19(2) of the Migration Regulations joined by “and”.
For present purposes the use of “and” to join paras (a), (b), (c) and (d) of s 5F(2) of the Migration Act means that for a person to be the “spouse” of another person each of those paras must be met.
The Court observes that the Tribunal:
(a)had regard to Ms Kaur’s oral evidence at the First and Second Tribunal Hearings and the Documents that she provided to the Tribunal following the First Tribunal Hearing: CB 218-219 at [9] and [11];
(b)understood: CB 219 at [13]:
(i)that Ms Kaur had to satisfy the Tribunal that she was in a spousal relationship as defined by s 5F of the Migration Act; and
(ii)Ms Kaur, to be a person in a married relationship with Mr Singh, must be married under a marriage that is valid for the purposes of the Migration Act, including that there must be a mutual commitment to a shared life as husband and wife to the exclusion of all others, that the relationship must be genuine and continuing, and that they must live together, or must not live separately and apart on a permanent basis: Migration Act, s 5F(2)(a)-(d);
(c)understood that Ms Kaur had to be a member of Mr Singh’s family unit so as to satisfy reg 1.12 of the Migration Regulations: CB 219 at [14];
(d)considered Ms Kaur’s circumstances, including:
(i)Mr Singh’s evidence at the First Tribunal Hearing: CB 219 at [10] that:
(A)he and Ms Kaur had been separated since 23 May 2018;
(B)Ms Kaur lived at a different address to Mr Singh and their children;
(C)the children saw Ms Kaur on weekends;
(D)reconciliation between Ms Kaur and Mr Singh was not possible and that a final divorce application had been submitted which would be heard on 9 September 2019; and
(E)the costs of caring for their children were shared between him and Ms Kaur;
(ii)Ms Kaur’s evidence at the Second Tribunal Hearing: CB 219 at [11], that:
(A)Ms Kaur and Mr Singh were separated as at 23 May 2018 and that there was no possibility of reconciliation;
(B)she and Mr Singh had lived separately since 23 May 2018;
(C)she saw her children on weekends at community events and temple;
(D)she and Mr Singh have separate social status; and
(E)she and Mr Singh now have separate bank accounts although they had previously held a joint account prior to their separation;
(e)from the written and oral evidence provided by Ms Kaur and Mr Singh, and having regard to the definition of “spouse” under s 5F of the Migration Act, concluded: CB 219 at [12]-[13], that:
(i)Ms Kaur and Mr Singh were no longer in a genuine spousal relationship;
(ii)Ms Kaur and Mr Singh no longer had a mutual commitment to a shared life as a married couple;
(iii)the relationship between Ms Kaur and Mr Singh was no longer genuine or continuing;
(iv)Ms Kaur and Mr Singh now live separately and apart on a permanent basis; and
(v)Ms Kaur and Mr Singh were both persuasive and appeared to answer the Tribunal honestly and without obfuscation in spite of their displayed apparent emotional sadness;
(f)having found that Ms Kaur and Mr Singh were no longer in a spousal relationship, further found that Ms Kaur was no longer a member of Mr Singh’s family unit as defined in reg 1.12(12) of the Migration Regulations and consequently found that Ms Kaur did not meet the criteria in cl 187.311 of Sch 2 to the Migration Regulations for the grant of the REN Visa: CB 219 at [14].
The factual conclusions reached by the Tribunal were plainly open to it on the facts and evidence before it, which it properly considered, and which were primarily sourced in the evidence of Ms Kaur and Mr Singh about their relationship. To disturb those conclusions would be an exercise in impermissible merits review: Wu Shan Liang, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496; (2016) 70 AAR 413 at [61] per McKerracher, Griffiths and Rangiah JJ.
What follows from the Tribunal’s unimpeachable factual conclusions are legal conclusions that are equally unimpeachable. Thus, even if – as was the case - Ms Kaur was still legally married to Mr Singh as at the time of the Tribunal Decision because no final divorce order had been made, in order to be considered Mr Singh’s “spouse” and therefore “a member of the family unit” for the purposes of the REN Visa Application, Ms Kaur needed to have a relationship with Mr Singh to the exclusion of all others that was continuing and they needed to either live together or not live apart on a permanent basis. Having regard to the Tribunal’s conclusions as set out at [19(e)] above, which were based on the undisputed evidence of Ms Kaur and Mr Singh that reconciliation was not possible, that they had lived apart since May 2018 and they had a pending final divorce application, Ms Kaur was plainly not Mr Singh’s “spouse” for the purposes of s 5F of the Migration Act, nor a “member of the family unit” for the purposes of cl 187.311 of Sch 2 to the Migration Regulations, and was therefore, as the Tribunal concluded, not able to satisfy the criteria for the grant of the REN Visa. The Tribunal’s conclusion in this respect was correct and not vitiated by jurisdictional error.
Grounds 1 to 4 are not made out and do not establish jurisdictional error in the Tribunal Decision.
Grounds 5 and 6
Grounds 5 and 6 essentially assert that the Tribunal failed to comply with ss 359A and 359AA of the Migration Act, in particular as follows:
(a)by not providing particulars of information taken into consideration by the Tribunal; and
(b)by not inviting Ms Kaur to comment on or respond to information which was used by the Tribunal as the reason or part of the reason for the Tribunal Decision.
These grounds cannot succeed because s 359A(4)(b) of the Migration Act excludes a requirement to give particulars of information where the information is information that an applicant gave to the Tribunal for the purposes of the application for review by the Tribunal. As is evident from [19(d)-(e)] above, the dispositive reasons in the Tribunal Decision are based on the evidence of Ms Kaur, as well as Mr Singh, their evidence being to the same effect in relation to matters giving rise to the Tribunal’s dispositive reasons.
The Court notes that the Tribunal did put information (related to an MOC opinion) to Ms Kaur for comment pursuant to s 359A of the Migration Act: CB 109, but that by the time of the Tribunal Decision the information given was no longer information which was to be used by the Tribunal as the reason or part of the reason for the Tribunal Decision.
Grounds 5 and 6 are not made out and do not establish jurisdictional error in the Tribunal Decision.
Ground 7
Ground 7 appears to contend that the Tribunal misconstrued reg 1.12(12) of the Migration Regulations.
Regulation 1.12(12) of the Migration Regulations provides that:
(12)In addition to subregulation (1), a person is a member of the family unit of an applicant for a Regional Employer Nomination (Permanent) (Class RN) visa if, at the time of application, the person:
(a)holds a Subclass 457 (Temporary Work (Skilled)) visa granted on the basis that the person was a member of the family unit of the holder of a Subclass 457 (Temporary Work (Skilled)) visa; and
(b)is included in the application for the Regional Employer Nomination (Permanent) (Class RN) visa.
There was no evidence before the Tribunal that Ms Kaur had ever held any visa other than student and bridging visas: CB 54. The Tribunal found at CB 219 at [14] that Ms Kaur did not satisfy the definition of “member of the family unit” in reg 1.12(12) of the Migration Regulations. Based on the terms of reg 1.12(12) of the Migration Regulations that finding by the Tribunal was plainly correct.
Ground 7 is therefore not made out and does not establish jurisdictional error in the Tribunal Decision.
Jurisdictional error otherwise
The Court is also cognisant that Ms Kaur was self-represented, and that in those circumstances the Court must endeavour to remain independently alert to the possibility of a jurisdictional error being made by the Tribunal: MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392; (2015) 238 FCR 158 at [100] and [112] per Mortimer J; Ludgero v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1060; (2021) 358 FLR 215 at [26] per Judge Lucev. In the Court’s view, there is nothing in the materials before it which indicates that the Tribunal made a jurisdictional error otherwise in the Tribunal Decision.
Futility
In the Court’s view the fact that the Tribunal Decision is so obviously unaffected by jurisdictional error it renders it strictly unnecessary to consider whether it would be futile to grant relief in the event of there being a jurisdictional error in the Tribunal Decision. It suffices to observe, however, that if the Court had to remit the matter to the Tribunal in the event of a jurisdictional error, the Tribunal would again need to determine if Ms Kaur was presently a “member of the family unit”. Given the evidence of Ms Kaur and Mr Singh at the time of the First and Second Tribunal Hearings that the divorce finalisation was imminent, and the concession, if not express then implicit, in grounds 2 and 5 that divorce has now been finalised, it is evident that Ms Kaur would not be able to establish that she is a member of the family unit. In particular, Ms Kaur and Mr Singh are no longer “married to each other” for the purposes of s 5F(2)(a) of the Migration Act. The only outcome open to the Tribunal on remittal would therefore be to again affirm the Delegate’s Decision, and relief by way of remittal would therefore lack utility as no useful result could ensue: SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2; (2006) 150 FCR 214; (2006) 230 ALR 1 at [232] per Allsop J; R v Commonwealth Court of Conciliation & Arbitration; Ex parte Ozone Theatres (Aust) Ltd [1949] HCA 33; (1949) 78 CLR 389; (1949) ALR 675; (1949) 23 ALJ 278, CLR at 400 per Latham CJ, Rich, Dixon, McTiernan and Webb JJ.
Conclusion and Orders
The Court has concluded Ms Kaur has not made out any of the grounds of the Judicial Review Application, and that the Tribunal Decision is not affected by jurisdictional error. Further, even if there was jurisdictional error in the Tribunal Decision (which there is not), relief would be futile. It follows that there will be an order dismissing the Judicial Review Application filed on 8 October 2019.
There will also be an order amending the name of the Minister to read “Minister for Immigration, Citizenship and Multicultural Affairs”.
The Court will hear the parties as to costs.
I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 21 December 2022