Koring v Minister for Immigration

[2017] FCCA 1989

FEDERAL CIRCUIT COURT OF AUSTRALIA

KORING v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1989

Catchwords:
MIGRATION – Administrative Appeals Tribunal – Partner (Residence) (Class BS) visa – applicant divorced from sponsor – no evidence in an appropriate form of family violence – applicant on notice about family violence provisions.

Legislation:
Migration Act 1958, ss.359AA, 424AA
Migration Regulations 1994, regs.1.23, 1.24, 1.25, Schedule 2, clause 801.221

Applicant: LINDA KORING

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File number: MLG 1395 of 2015

Judgment of: Judge Riley

Hearing date: 20 June 2017

Date of last submission: 20 June 2017

Delivered at: Melbourne

Delivered on: 20 June 2017

REPRESENTATION

Advocate for the applicant: In person

Solicitors for the applicant: None

Advocate for the first respondent: Elizabeth Tan

Solicitors for the first respondent: Clayton Utz Lawyers

Counsel for the second respondent: No appearance

Solicitors for the second respondent: Clayton Utz Lawyers

ORDERS

1. The application filed on 22 June 2015 be dismissed.

2. The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $7,206.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1395 of 2015

LINDA KORING

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from the transcript)

1. This is an application to review a decision made by the Migration Review Tribunal.  The Tribunal affirmed a decision of a delegate of the Minister to refuse the applicant a partner visa. 

2. The applicant is a national of Indonesia.  She had a relationship with a Mr Michael Koring, who was a German national. He was in Australia on a Class BB Subclass 55 Five Year Resident Return visa. 

3. The delegate refused to grant the visa in a decision made on 3 April 2014. The delegate considered that the applicant and Mr Koring were not in a genuine and continuing spousal relationship at that time.

4. The applicant sought review of the delegate’s decision. The Tribunal conducted a hearing on 10 June 2015.  At that hearing, the applicant told the Tribunal that she had been divorced from Mr Koring a few months earlier.  She produced a divorce order showing that the divorce was effective from 24 November 2014.  The applicant also discussed the history of her relationship with Mr Koring, saying that they had been together for 15 years.  However, there was information provided to the Tribunal that showed that the relationship between the applicant and Mr Koring had broken down prior to the delegate’s decision.

5. The delegate had, in fact, provided a summary of that information to the applicant by letter dated 13 March 2014: CB51. The letter said that:

   a)Mr Koring had assisted the applicant to enter Australia in 2007 after the applicant asked for his help;

   b)Mr Koring had assisted the applicant to remain in Australia by marrying her on the day that her prospective marriage visa expired on 3 August 2011;

   c)Mr Koring had sent the applicant a message in 2013 saying that he wanted to end the marriage, but the applicant did not respond; and

   d)Mr Koring had returned to Germany in June 2012 and there had been no contact between the applicant and Mr Koring until 3 March 2014, when the applicant contacted him for assistance with her partner visa application.

6. The delegate sought a response to that information by her letter dated 13 March 2014. The applicant provided a written response dated 23 March 2014 to the delegate.  The delegate appears to have taken that information into account in her decision.

7. The delegate, in correspondence dated 13 March 2014 with the applicant, also provided copies of all of the regulations applicable to her matter. Those regulations set out the criteria to be satisfied at the time of decision, the definition of spouse and the family violence provisions.

8. The Tribunal set out in its reasons for decision a summary of the response that the applicant had made to the delegate’s letter of 23 March 2014. The Tribunal also set out an elaboration of that response that was given at the hearing before the Tribunal.

9. The Tribunal, during the hearing, put to the applicant various statements Mr Koring had made in an email to the department in March 2014.  The Tribunal noted in paragraph 12 of its reasons for decision that the applicant elected to respond immediately to the matters that had been put to her during the Tribunal hearing.  The Tribunal set out the applicant’s response in paragraph 12 of its reasons for decision. 

10. The reasons then turn to a consideration of the claims and evidence. The Tribunal noted that to meet the criteria for a partner visa, the applicant needed to satisfy cl.801.221 of Schedule 2 of the Migration Regulations 1994 (“the Regulations”). The Tribunal noted that the applicant was no longer in a relationship with Mr Koring because she was divorced from him on 24 November 2014. The Tribunal then turned to a consideration of whether the cessation of the relationship was due to family violence. The Tribunal noted that the applicant had not raised any issue of family violence prior to the hearing before the Tribunal, even though the department’s letter sent to her in March 2014 and the delegate’s decision itself would have put the applicant on notice that family violence was a basis upon which she may have been able to secure a partner visa.

11. The Tribunal also noted that the applicant had not established family violence by any of the methods permitted by regs.1.23, 1.24 or 1.25 of the Regulations. Those provisions permit family violence to be established by the provision of certain types of court orders (judicially determined family violence) or statutory declarations (non-judicially determined family violence). The provisions also provide that, where the Minister is not satisfied that the alleged victim has suffered family violence, the Minister must seek the opinion of an independent expert.

12. The Tribunal considered that the applicant had provided no evidence of judicially determined family violence and nothing that could amount to a non-judicially determined claim of family violence.

13. The Tribunal considered the basic requirements for satisfaction of the partner visa requirements.  The Tribunal considered that there was insufficient evidence to enable it to conclude that the applicant and Mr Koring had ever had a mutual commitment to a shared life as husband and wife to the exclusion of all others and that the relationship between them had been genuine and continuing.  All in all, the Tribunal considered that it was appropriate to affirm the delegate’s decision.

14. The application to this court was prepared by the applicant apparently without the benefit of legal assistance.  The application said that:

    1.The Tribunal’s decision is affected by Jurisdictional error. 

    2.The Tribunal did not take account of relevant considerations and took into account irrelevant considerations;

    3. The Tribunal did not comply with s.424AA of the Migration Act 1958.

15. When asked to elaborate on those grounds before the court today, the applicant said that the Tribunal only took into account her ex-husband’s version of events. That is not a correct characterisation of the Tribunal’s reasons for decision. It can be seen that the Tribunal did set out in its reasons for decision the response made by the applicant to the version of events propounded by the applicant’s ex-husband. The Tribunal did take into account what the applicant had said, but clearly did not consider that it was sufficient to overcome the deficiencies in the applicant’s case.

16. The applicant today also asked the court to look again at the Department’s file and reconsider the decision that had been made.  This is clearly a plea for merits review.  This court is not permitted to review matters on the merits. 

17. The applicant also handed up to the court a letter, which was in the nature of written submissions, with five photographs attached.  Some of those photographs were not before the Tribunal, and could not be relied on in this court for that reason alone.  In any event, the tender of the photographs was intended to support the claim for merits review.

18. The written submission or letter itself also seeks merits review.  It is a plea for the applicant to be permitted to remain in Australia.  It does not go to any possible jurisdictional error committed by the Tribunal. 

19. In relation to the applicant’s claim that the Tribunal had not taken account of relevant considerations, I am unable to see anything that the Tribunal should have taken into account but did not.  Similarly, in relation to the applicant’s claim that the Tribunal took into account irrelevant considerations, I am unable to detect anything that the Tribunal took into account which it should not have taken into account. 

20. In relation to the applicant’s claim that the Tribunal did not comply with s.424AA of the Migration Act 1958 (“the Act”), I assume that this is meant to be a reference to s.359AA of the Act. The Tribunal set out in its reasons for decision that it put certain matters to the applicant pursuant to s.359AA of the Act. The Tribunal noted that the applicant chose to respond immediately. I take it from that statement that the Tribunal gave the applicant the option of responding immediately or having the matter adjourned. That is entirely in accordance with the provisions of s.359AA of the Act. It seems to me that there is no relevant error in relation to s.359AA of the Act.

21. Indeed, I am unable to discern any error that might amount to a jurisdictional error on the part of the Tribunal in this case. The Tribunal, albeit briefly, appears to have properly applied the law. It has considered the matters that it was required to consider and has not taken into account any matters that it was prohibited from considering.  It looked at the criteria for the grant of a spouse visa and formed the view, which in my view was open to it, that the applicant simply did not meet the criteria. I am unable to discern any jurisdictional error in this case. Consequently, the application must be dismissed.

22. After the delivery of the reasons as set out above, the applicant raised two further issues.  The first was that it was not her who had filed for divorce.  It was her ex-husband.  This does not make any difference.  The fact is that the applicant and her ex-husband were divorced at the time of the Tribunal’s decision. 

23. The second matter that the applicant raised was that she did have a witness to the family violence that had occurred between her and her ex-husband, but she had been unable to obtain evidence from that person because he or she lives in Sydney.  Again, this makes no difference to the outcome.  The fact is that family violence needs to be proved to the Tribunal in certain ways. The applicant did not attempt to prove family violence in any of the permitted ways when her matter was before the Tribunal.

24. In the circumstances, the application must be dismissed.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Riley

Associate: 

Date:      18 August 2017