Kumar v Minister for Immigration - [2015] FCCA 3312

FEDERAL CIRCUIT COURT OF AUSTRALIA

KUMAR v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 3312

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Partner (Migrant) (Class BC) visa – whether the Tribunal applied the correct test in relation to reg.1.23(10)(c) of the Migration Regulations 1994 – whether the Tribunal put adverse findings to the applicant – whether the Tribunal failed to consider a relevant consideration – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5F, 476

Migration Regulations 1994, reg.1.23

Sok v Minister for Immigration and Citizenship [2008] HCA 50

Applicant:

ARCHANA NANDANI KUMAR

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 2362 of 2015

Judgment of:

Judge Street

Hearing date:

10 December 2015

Date of Last Submission:

10 December 2015

Delivered at:

Sydney

Delivered on:

10 December 2015

REPRESENTATION

Counsel for the Applicant:

Mr A Kumar

Solicitors for the Applicant:

Hutchison Lawyers

Solicitors for the First Respondent:

Mr W Sharpe
Minter Ellison

ORDERS

The amended application is dismissed.
The Applicant pay the costs fixed in the amount of $6000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2362 of 2015

ARCHANA NANDANI KUMAR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Tribunal dated 7 August 2015 affirming a decision of the delegate not to grant the applicant a Partner (Migrant) (Class BC) visa. The applicant was born in Fiji and the applicant’s sponsor was born in Fiji. The applicant and her sponsor were married in Fiji on 13 September 2012. The applicant lodged an application for a partner visa on 16 January 2013 and was granted a Provisional Spouse visa (subclass 309) on 6 May 2013, following which the applicant entered Australia on 20 May 2013.
On 13 June 2013, the applicant advised the Department she wished to lodge a complaint about a disputed relationship and advised that she was currently residing with an aunt. On 17 June 2013, the applicant’s sponsor advised the Department by letter dated 12 June 2013 that his relationship with the applicant had ended and that he was withdrawing his sponsorship. On 9 July 2013, the Department advised the applicant that her sponsor had withdrawn the sponsorship and invited the applicant to provide further information.
On 2 August 2013, the applicant advised the Department that their relationship had ceased as a result of family violence committed by the sponsor towards the applicant. The applicant informed the Department that the sponsor had continued his relationship with his girlfriend during their marriage and that his mother-in-law had forced him into an arranged marriage with the applicant. The applicant advised that the sponsor was never interested in the applicant and that when the applicant arrived at the airport, she was met by her mother-in-law and her aunt and not by the sponsor.
The Tribunal made findings to the effect that the applicant and the sponsor were never in a genuine and continuing spousal relationship. The Tribunal found that the applicant and sponsor were not in a genuine relationship at the time of arrival in Australia. It is clear from the Tribunal’s reasons that the Tribunal took into account the criteria required under s.5F, and relevantly that included the relationship between the applicant and the sponsor following their marriage in Fiji.
The Tribunal found that the applicant and the sponsor may have represented themselves to others in Fiji as having entered into a genuine spousal relationship which was said to be possibly for the purpose of achieving a migration outcome. The Tribunal also took into account the brief period during which the applicant resided with the sponsor following their marriage in Fiji. The grounds of the application are as follows:
1. The Second respondent Tribunal erred in the construction of Regulation 1.23(10)(c) of the Migration Regulations and thereby asked wrong questions and applied the wrong test and committed jurisdictional error.
Particulars
a. The parties’ marriage occurred in Fiji;
b. The Tribunal ignored the parties’ relationship in Fiji;
c. The parties were originally living in two countries owing to the parties mutual intention – whilst the Applicant resided in Fiji the Sponsor returned to Australia before the Applicant joined the Sponsor in Australia;
d. The Applicant held subclass 309 visa;
e. Failed to consider the statutory declaration of the Applicant’s medical practitioner on the misapprehension that the spousal relationship ceased when Regulation 1.23(10)(c) of the Migration Regulations imposes no such requirement;
f. Failed to seek opinion of independent expert pursuant to Regulation 1.23(10)(c) of the Migration Regulations (the spousal breakdown in Australia not relieving the Tribunal to carry out the mandatory task in respect of non-‐judicially determined family violence allegation).
g. The Tribunal applied the wrong test when it failed to take into account all the circumstances including the sponsor’s support for the Applicant in Fiji.
h. Erroneously limiting itself to the consideration of circumstances in Australia only (RRT at [62]).
Ground 1A
The Second respondent Tribunal erred in the construction of the definition of spouse in Regulation 1.15A(3)b of the Migration Regulations and thereby committed jurisdictional error.
Particulars
(a) The Tribunal erred when it found that there was no spousal relationship in the circumstances where the parties commenced relationship in Fiji.
(b) The Tribunal applied the wrong test when it failed to take into account all the circumstances including the sponsor’s support for the Applicant in Fiji.
(c) Erroneously limiting itself to the consideration of circumstances in Australia only (RRT at [62; 67]).
(d) Failed to consider the mutual intention of the parties.
Ground 2
The Second respondent Tribunal was procedurally unfair and thereby committed jurisdictional error.
Particulars
a. The Tribunal found that the sponsor and the applicant “may have represented themselves to others as entering genuine spouse … for the purposes of …. migration outcome. …” (RRT at [65]).
b.   Denied opportunity to be heard on the spouse’s statement (RRT at [70]).
c.   Denied opportunity to be heard on other matter (RRT at [67] – [68]).
Ground 3
3.      The Second respondent Tribunal committed jurisdictional error in failing to take into account relevant considerations.
Particulars
a.   The Applicant claimed that the Sponsor had provided her with funds of $5,000.00.
b.   This is relevant consideration Regulation 1.15A.
c.   The Tribunal erred in failing to dealing with this.
In substance, in relation to ground 1, Mr Kumar of counsel relied upon the decision in Sok v Minister for Immigration and Citizenship [2008] HCA 50 and advanced a submission that the Tribunal was required to determine whether or not there was family violence by application of the cascading methods identified under reg.1.23 and that the failure to do so was a jurisdictional error. This is a case where the Tribunal found that there had never been a genuine spousal relationship. In those circumstances, there was no need for the Tribunal to turn to the issue of the cascading determination process as to family violence under reg.1.23. No jurisdictional error is established by reference to ground 1.
In relation to ground 1A, Mr Kumar submitted that in determining whether there was a genuine spousal relationship, the Tribunal had, in substance, confined itself to an evaluation only of the relationship in Australia. Mr Kumar relied upon the references to “in Australia” found relevantly in paras.62, 67 and also 74. The Tribunal’s decision has to be read as a whole, and it is clear that the Tribunal did take into account the alleged relationship in Fiji, as is apparent from relevantly paras.64 and 65. Accordingly, I reject the proposition that the Tribunal erroneously confined itself to a consideration of the circumstances only referable to Australia. No jurisdictional error is made out as alleged in ground 1A.
In relation to ground 2, it is clear from para.24 of the Tribunal’s reasons that the spousal statement was put to the applicant. It is also clear from the evidence before the Court that the applicant was provided with the spouse statement as well as information in relation to police reports. The applicant appeared before the Tribunal on 9 June 2015 to give evidence and to present arguments, and the Tribunal received other oral evidence. The hearing was conducted with the assistance of an interpreter and the applicant was represented by her migration agent.
Following the hearing on 9 June, the Tribunal sent a letter dated 17 June 2015 that raised the issue of genuine spousal relationship, to which the applicant by her representative responded by letter dated 14 July 2015. That response also made reference to the police reports. There is no substance in the proposition that the applicant was denied an opportunity to be heard in relation to either the spouse statement or police reports. It is apparent that the issue of genuine and continuing spousal relationship was a live issue in the hearing before the Tribunal. Paragraphs 65, 67 and 68 and 70 are as follows:
65. Based on the above evidence, the Tribunal is satisfied that the parties may have represented themselves to others as entering a genuine spouse relationship while they were in Fiji, possibly for the purposes of achieving a migration outcome. However, the Tribunal is not satisfied that the parties undertook social activities together after the applicant’s arrival in Australia or that they represented themselves as in a genuine spouse relationship after the applicant arrived in Australia.
…
67. The Tribunal placed little weight on the applicant’s oral evidence that she believed her sponsor was committed to the relationship given the evidence she gave at the hearing, and in her written statements to the Tribunal and the Department and the evidence in the police reports about her sponsor’s behaviour towards her from the time she arrived in Australia. The Tribunal also placed weight on the applicant’s statements to the Tribunal, police and the Department when she referred to her spouse having a girlfriend with whom he continued to have a relationship. Whether the applicant confused the word ‘girlfriend’ with ‘affair’ is not relevant as either meaning indicates that the applicant believed that her spouse was not in an exclusive relationship with herself.
68. At the hearing the applicant told the Tribunal that arguments started about one week or about the middle of the second week after she arrived in Australia. He told her that he had a girlfriend. She never met her and thought that he was just saying it to ‘get rid of her’ which certainly indicates a lack of commitment on his part to the relationship. Her spouse did not come home on the first weekend she was there. The applicant told the Tribunal that “he was ignoring her and telling his mother that he doesn’t want her in the room or in the house”. This is also strongly indicative of a lack of commitment to the relationship on his part.
…
70. The Tribunal places little weight on the applicant’s spouse’s written statement that he was “prepared to commit to an exclusive relationship” but believed that the applicant had not been committed to a genuine spouse relationship with him after her arrival in Australia.
It is apparent the information relating to police referred to in para.67 was material addressed in the submission dated 14 July 2015. For reasons earlier given, it is apparent that the spousal statement referred to in para.70 was a matter that had been squarely raised by the Tribunal with the applicant. There was no denial of procedural fairness by the Tribunal in relation to the conduct of the review, and no jurisdictional error is made out by ground 2.
In relation to ground 3, it is apparent that the Tribunal took into account the provision of the $5000 funds, as it is referred to in para.21 of the Tribunal’s reasons. That was information identified in a statutory declaration summarised by the Tribunal in para.21 which was information provided by the applicant. Mr Kumar of counsel maintained that the Tribunal had not further taken into account the matter identified in relation to the provision of the $5000 from the sponsor.
For the reasons identified, it is clear that the Tribunal had regard to the information summarised in para.21, and it was not necessary for the Tribunal to make a separate finding about the $5000 which it was alleged the sponsor had given the applicant and that she had put into a personal bank account. There is no proper basis to infer that the Tribunal failed to take into account any relevant consideration as alleged in ground 3. Ground 3 fails to make out any jurisdictional error. The amended application is dismissed.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:

Date: 11 December 2015