Kumar v Minister for Immigration and Multicultural Affairs

[2024] FedCFamC2G 1216

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Kumar v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1216  

File number:

MLG 533 of 2019

Judgment of:

JUDGE SYMONS

Date of judgment:

19 November 2024

Catchwords:

MIGRATION –judicial review of a decision of the Administrative Appeals Tribunal – refusal to grant a Partner (Temporary) (Class UK) visa – where applicant filed notice to produce – where applicant sought to satisfy visa criteria through claim of non-judicially determined family violence – where applicant failed to meet prescribed evidentiary requirements – no jurisdictional error – application dismissed

Legislation:

Migration Act 1958 (Cth), ss 360, 376

Migration Regulations 1994 (Cth), regs 1.24, 1.25; Sch 2 cl 820.211
Legislative Instrument IMMI 12/116

Cases cited:

Fu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 161

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63

Division:

Division 2 General Federal Law

Number of paragraphs:

47

Date of last submissions:

12 November 2024

Date of hearing:

12 November 2024

Place:

Melbourne

Solicitor for the Applicant:

The Applicant represented himself

Solicitor advocate for the First Respondent:

Mr A Cunynghame, Sparke Helmore Lawyers

Solicitor for the Second Respondent:

The Second Respondent entered a submitting appearance, save as to costs

ORDERS

MLG 533 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

NARENDER KUMAR

Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE REVIEW TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE SYMONS
DATE OF ORDER:	19 NOVEMBER 2024

THE COURT ORDERS THAT:

1.The name of the First Respondent be amended to “Minister for Immigration and Multicultural Affairs”.

2.The name of the Second Respondent be amended to “Administrative Review Tribunal”.

3.The application for judicial review filed on 28 February 2019 be dismissed.

4.The Applicant pay the First Respondent’s costs fixed in the amount of $8,371.30.

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 SYMONS:

INTRODUCTION

1. By an application filed on 28 February 2019, the applicant seeks judicial review of a decision of the second respondent (Tribunal) made on 18 February 2019. The Tribunal affirmed a decision of a delegate of the first respondent (Minister) to refuse to grant the applicant a Partner (Temporary) (Class UK) visa (visa). The Minister opposes the application. The Tribunal enters a submitting appearance and has not participated in the proceeding.

   BACKGROUND

2. The applicant is a citizen of India who arrived in Australia on 1 November 2015 as the holder of a Partner (Subclass 300) visa. On 29 June 2016, the applicant applied for the visa on the basis of his marital relationship with his sponsor, an Australian citizen (Court Book (CB) 1-23).

3. On 12 February 2017, the sponsor notified the (then) Department of Immigration and Border Protection (Department) that her relationship with the applicant had ceased (CB 45-46).  On 2 March 2017, the Department invited the applicant to comment on this information (CB 117-119).

4. On 30 March 2017, the applicant’s representative sent the Department a written response to the invitation to comment (CB 130-133).  The response contained an acknowledgment that there had been a withdrawal of sponsorship by the sponsor named in the visa application but claimed the relationship had broken down due to family violence perpetrated by the sponsoring wife against the applicant.  Some “instances of family violence” were then identified.  The response attached a series of documents in support of the claim of family violence (CB 134-212).

5. On 4 April 2017, the Department sent the applicant what was described as an “invitation to comment on information” but which in fact sought evidence from the applicant that he was the spouse or de facto partner of his sponsor prior to the cessation of their relationship (CB 213-215).

6. On 28 April 2017, the applicant’s representative sent the Department a response to this request for information (CB 217-238).

7. On 16 August 2017, a delegate of the Minister made a decision to refuse to grant the applicant the visa (CB 239-274). While the delegate acknowledged that the applicant claimed to have suffered family violence by the sponsor during the relationship, the delegate was not satisfied that the applicant and the sponsor were in a spousal relationship prior to the cessation of their relationship. The delegate was therefore not satisfied the applicant met subclause 820.211(2)(a) of the Migration Regulations 1994 (Cth) (Regulations) and consequently did not meet cl 820.211, which was a criterion that must be satisfied at the time of application for the visa.

8. On 19 August 2017, the applicant applied to the Tribunal for review of the delegate’s decision (CB 275-277).

9. On 11 September 2017, the Department issued a certification and notification to the Tribunal purportedly under s 376 of the Migration Act 1958 (Cth) (Act) (CB 284).

10. On 13 December 2017, the applicant’s representative sent the Tribunal a statement of facts and contentions that addressed the topics of “Past application and proof of relationship” and “Family violence and cessation of relationship”, as well as a statutory declaration of the applicant dated 12 December 2017 that addressed matters under the heading “Family Violence and Cessation of Relationship” (CB 285-290).

11. On 20 December 2017, the applicant’s representative sent additional documents to the Tribunal (CB 292-294).

12. On 11 January 2019, the applicant was invited to attend a hearing before the Tribunal to take place on 18 February 2019 (CB 298-299). The applicant participated in the hearing with the assistance of his representative and an interpreter in the Hindi and English languages (CB 304-306).

    THE DECISION OF THE TRIBUNAL

13. On 18 February 2019, the Tribunal affirmed the decision of the delegate not to grant the applicant the visa and produced a written statement of decision and reasons (Reasons) (CB 311-318).

14. The Tribunal acknowledged the applicant’s claim that his relationship with his sponsor had ceased and that he had been the victim of family violence (Reasons, [3]). The Tribunal referred to the applicant’s evidence given at hearing that he told the Tribunal that his relationship with his sponsor had ceased (Reasons, [6]).

15. The Tribunal identified the “relevant law” including that to be granted the visa, the applicant must meet, at the time of decision, one of the alternate requirements contained in the subclauses listed in cl. 820.221(1) of Schedule 2 to the Regulations. In this case, the issue was whether the applicant met one of these requirements, namely, cl 820.221(3), which is directed at a claim of family violence (Reasons, [4]).

16. The Tribunal identified the evidentiary requirements for a non-judicial claim of family violence as a statutory declaration under reg 1.25 of the Regulations, and the type and number of items of evidence specified by the Minister in instrument IMMI 12/116 (Reasons, [8]).

17. The Tribunal found that the applicant had provided a statutory declaration which was consistent with the requirements under the Act and Regulations but that he had not provided the two additional items as was required and specified in Schedule 1 of IMMI12/116. The applicant had not made a “valid” claim under law (Reasons, [9]).

18. The Tribunal found that the certificate said to have been made pursuant to s 376 of the Act was invalid on the basis that it did not properly identify a public interest ground for non-disclosure. The Tribunal explained that it had not, in these circumstances, discussed the certificate with the applicant at hearing or given the applicant a copy of the certificate (Reasons, [10]).

19. The Tribunal recorded that as far as the information behind the certificate was concerned, it had reflected upon but ultimately decided not to put this information to the applicant because the evidence in the case had required an examination of whether the applicant had made a valid non-judicially determined claim of family violence, which assessment had not required the Tribunal to weigh any of the matters contained in the non-disclosed folios (Reasons, [11]).

20. The Tribunal concluded that as the applicant’s relationship with his sponsor had ceased and he had not made a valid claim of family violence, he did not meet the requirement of cl. 820.221(3) for the grant of the visa and did not satisfy the criteria for the grant of the visa (Reasons, [12]-[15]).

    JUDICIAL REVIEW APPLICATION

21. On 28 February 2019, the applicant applied for judicial review of the Tribunal’s decision. In his application document, the applicant raised the following nine grounds of review:

    a.The Second respondent failed to ask a crucial question directly from me.

    b.The question was not even translated to me before it was answered by my lawyer.

    c.The second respondent should have directed my lawyer not to interrupt me when I was narrating my relationship.

    d.The first respondent fell into jurisdictional error by misconstruing the Regulations and making an instrument IMMI12/116 which confront the aim to be achieved by the relevant Regulations.

    e.The first respondent by limiting & restricting the evidence to a particular category, usurped the powers of a Court in dealing with ‘relevancy of evidence’ under Part 3.1 of the Evidence Act 1995.

    f.The first respondent by not allowing the relevant evidence to be considered by the second respondent, gave finality to its own decision and brought in the ‘privative clause’ in disguise thereby ousting a valid merits review and denying any judicial review.

    g.The second respondent fell into jurisdictional error as it did not decide the application on merit, but, applied the instrument IMMI 12/116 inflexibly and refused to access the relevant evidence.

    h.Alternatively, making of instrument IMMI 12/116 is not lawful exercise of the regulation making power in section 504 of the Migration Act 1958 (Cth), because it is arbitrary, capricious, discriminatory and/or incapable of practical administration.

    i.Further and in the alternative, instrument IMMI 12/116 is so unreasonable and unjust that it should be declared invalid on the ground of ‘unreasonableness’.

22. In his affidavit filed on 28 February 2019 in support of his application, the applicant restated his grounds of alleged jurisdictional error and made various assertions that have the appearance of submissions, rather than evidence.  They have been treated as possessing this character by the Court.

23. On 17 October 2024 and 31 October 2024, the applicant and the Minister, respectively, filed written submissions.

    Hearing on 12 November 2024

    Notice to Produce

24. The application was listed before me for final hearing on 12 November 2024.  On this date, the applicant appeared and represented himself.  He was assisted by an interpreter in the Hindi and English languages.  The Minister was represented by solicitor advocate, Mr Cunynghame.

25. The first issue that required attention was a notice to produce filed by the applicant on 1 November 2024, directed to the Minister.  The notice to produce sought the production of documents described as:

    1.   All emails sent by the First Respondent to the Applicant or his sponsor in relation to his visa applications for visa subclass 820 and 801 in particular to email address xx@xx

    2.   Complete record of the processing of visa application including file notes, comments etc. in relation to the application stated in paragraph 1.

26. The Minister made an application for the notice to produce to be set aside and, for reasons given orally during the hearing, I allowed that application.  It was apparent that the primary, if not sole, objective sought to be pursued by the applicant in seeking documents from the Minister was to establish that he (the applicant) had been granted a Partner (Temporary) (Class UK) Partner (subclass 820) visa in November 2016, contrary to the position maintained by the Minister and controverted by the evidence before the Court.  Specially, an affidavit of Mr Cunynghame, a solicitor with carriage and conduct of the applicant’s review proceeding on behalf of the Minister, affirmed and filed on 31 October 2024, annexed a screenshot of the applicant’s visa history list contained in the Department’s Integrated Client Services Environment.  The record discloses (by omission) that no partner visa has ever been issued to the applicant.

27. Curiously, the applicant attached to his written submissions a copy of what had the appearance of a letter issued by the Department of Immigration and Border Protection to “Narender Kumar” notifying him of a grant of a partner visa on 15 November 2016.   The applicant invited the Court to investigate the alleged visa grant and to punish him in the event that the visa grant document was “a fraud”.  However, I have chosen not to pursue this line of inquiry.

28. I am satisfied on the evidence before the Court that no partner visa has been granted by the Minister to the applicant but that in any case, in circumstances where the application for judicial review before the Court is concerned with the legality of the decision made by the Tribunal to affirm a decision to refuse the applicant the visa, the issue of whether the applicant was previously granted a partner visa has no obvious bearing on the Court’s review function.

    Argument on the grounds of review

29. I invited the applicant to address the Court on the grounds of review identified in his application document.  In relation to the first three matters identified in subparagraphs (a), (b) and (c), the applicant’s submission was essentially the same, being that his representative/lawyer and the Tribunal member had been talking amongst themselves during the Tribunal hearing and that at the time of the Tribunal hearing, the applicant had resumed a genuine relationship with his spouse.

30. Although he did not refer me to it during the hearing, I note that in his affidavit, the applicant states at [15] that “after conclusion of the hearing… my lawyer told me that restoration of my relationship could have been a positive factor as the member seems to have refused my claim about family violence.  I told him that my relationship was in fact restored and that I was trying to tell the member same when he cut me short.  He told me that he was not aware of the restoration of the relationship”.

31. When asked to address ground (d) of the application document, which is concerned with the misconstruction by the Tribunal of the Regulations and the legality of instrument IMMI 12/116, it became apparent that the applicant had no familiarity with the matters referred to in that paragraph, or by implication, the matters referred to in the balance of the grounds of review, each of which contains a challenge of a similar kind. The applicant told the Court at this point that somebody else had prepared his application document.

32. The applicant repeated his submission that he was in a genuine relationship with his sponsor at the time of the Tribunal decision and that “something should have come to my benefit”.

33. The Minister responded to the applicant’s submissions made orally at hearing as follows.

34. First, with the submission that the “high point” of the applicant’s case was that he was in a relationship with his spouse at the time of the Tribunal decision, yet this position was contrary to the information recorded in the Reasons and the documentary material that was before the Tribunal at the time of the decision.

35. In particular, at Reasons, [6], the Tribunal noted the applicant’s evidence that his relationship with his sponsor had ceased.  This assertion was consistent with the applicant’s statutory declaration made on 12 December 2017 which confirmed the cessation of the relationship between the applicant and his sponsor.  The Tribunal found that this statutory declaration satisfied one of the evidentiary requirements for a non-judicial claim of family violence.

36. The Minister submitted that to the extent that the applicant was suggesting he had told the Tribunal he had resumed a relationship with his sponsor by the time of the Tribunal hearing, the Court should prefer the record of what transpired at hearing contained in the decision record, which was a contemporaneous and unbiased account of events.  Furthermore, the applicant has produced no evidence, beyond his assertions, to corroborate his position.

37. I accept the submission of the Minister.  Beyond the statutory declaration that was before the Tribunal, the position consistently maintained by the applicant from at least 30 March 2017 when he provided his response to the Department about the withdrawal of sponsorship for his visa, was that the relationship between himself and his sponsor had ceased and that he sought to satisfy the criteria for the grant of the visa through a claim of family violence.  It seems improbable that despite the maintenance of this position, including through the submission of various supporting documents, the applicant had given evidence at hearing, or had been frustrated in his efforts to give such evidence, of the resumption of his relationship with his spouse.  I am not satisfied therefore that there is any error in the decision of the Tribunal that reflects a misapprehension of the applicant’s evidence, or the basis upon which he sought to satisfy the criteria for the grant of the visa.

38. The Minister submitted that in circumstances where the applicant’s entire case turned on his representation that he had suffered non-judicially determined family violence, it was fatal to his case that he was unable to produce the evidence required to satisfy such a claim.

39. In this regard, I adopt the following paragraphs [23] to [26] of Fu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 161 as a succinct summary of the position that applied to the applicant once he sought to rely on a claim of non-judicially determined family violence. Although the passages refer to the application of the criteria for the grant of a subclass 801 (permanent) partner visa, they can be transposed to this case insofar as they concern the family violence requirements:

    23. Within Pt 801 of Sch 2, cl 801.2 prescribes Primary criteria including, by cl 801.22, criteria to be satisfied at time of decision.  Relevantly, a criterion supplied by sub-cl 801.221(6)(c)(i)(A) is that the visa applicant “has suffered family violence committed by the sponsoring partner.”  While the expression “sponsoring partner” is given a definition as contained in cl 801.111, the issue of “family violence” is addressed by Div. 1.5 of Sch 1 of the regulations which is entitled Special provisions relating to family violence and comprises regs 1.21-1.27.  For the purposes of these provisions, reg 1.21 provides definitions of the following expressions:

    a)independent expert, and includes a person who is suitably qualified to make independent assessments of non-judicially determined claims a family violence and is employed by, or contracted to suit provide services to, an organisation that is specified, in a legislative instrument made for these purposes;

    b)non-judicially determined claim of family violence”, has the meaning given by sub-regulations 1.23(8) and (9).

    c)relevant family violence, means conduct, whether actual or threatened, towards an alleged victim, amongst others, the person or property and which causes the person to reasonably fear for, or to be reasonably apprehensive about his or her own well-being or safety: see also, the definition of “violence”.

    …

    24.Regulation 1.22 provides that a reference in the regulations to a person having suffered family violence is a reference to a person being taken, under reg 1.23, to have suffered family violence. In turn, reg 1.23 identifies a variety of circumstances in which an alleged victim is taken to have suffered family violence, including circumstances in which: a Court has granted an injunction under par 114(a), (b) or (c) of the Family Law Act 1975 (Cth); an order has been made under a law of a State or Territory against an alleged perpetrator for the protection of the alleged victim; a Court has convicted an alleged perpetrator of an offence of violence and, relevantly, where a non-judicially determined claim of family violence is made out.

    25.Regulation 1.23(9) prescribes a cumulative series of criteria, satisfaction of which, in effect, deem a visa applicant to have made a non-judicially determined claim of family violence for the purposes of her or his visa application.  As material to this application, sub-par 1.23(9)(c), which provides the third of those criteria, reads as follows:

    c)the alleged victim or another person on the alleged victim’s behalf has presented evidence in accordance with regulation 1.24 that:

    i.the alleged victim has suffered relevant family violence; and

    ii.the alleged perpetrator committed that relevant family violence.

    As par 1.23(9)(c) makes explicit, for the purposes of satisfying those criteria, the evidence which must be ‘presented’, so as to be taken to have made a non-judicially determined claim of family violence, is evidence in accordance with reg 1.24 of the regulations.

    26.   In turn, regs 1.24 and 1.25 of the regulations are framed so as to prescribe the types of acceptable evidence and the content of the statutory declaration which must be made by an alleged victim of family violence.  Those regulations read:

    1.24         Evidence

    The evidence mentioned in paragraph 1.23(9)(c) is:

    (a)    a statutory declaration under regulation 1.25 (which deals with statutory declarations by or on behalf of alleged victims); and

    (b)    the type and number of items of evidence specified by the Minister by instrument in writing for this paragraph. (Emphasis added)

    …

1. As noted earlier, the legislative instrument, IMMI 12/116, is the response to paragraph 1.24(b) of the Regulations. While it is unnecessary to reproduce it in its entirety, it is sufficient to note that it specifies that a minimum of two items of evidence from the list in Schedule 1 and no more than one of each type of evidence may be presented for the purposes of paragraph 1.24(b). By way of example, the type of evidence specified in Schedule 1 as acceptable evidence includes a medical report or statutory declaration made by a registered medical practitioner or registered nurse, a report or statutory declaration made by a police officer, or a statutory declaration made by a registered psychologist. In each case, the document must contain the detail also specified in Schedule 1 for that type of evidence.

2. It is apparent from a review of the material that was before the Tribunal that no evidence of a kind specified in IMMI 12/116 was provided by the applicant and so the Tribunal was correct to find that the applicant was unable to make good his claim of non-judicially determined family violence.

3. For completeness, I wish to record that I am unable to discern anything in the applicant’s written submissions filed on 17 October 2024 that reveals error in the approach taken by the Tribunal.

4. As a general observation, the submissions contain many references to matters and circumstances that appear detached from the applicant’s case.  For example, there are several footnoted references to parts of a court book that bear no relationship to the court book prepared by the Minister in this application.  Furthermore, the submissions operate on the incorrect premise that the applicant was granted a subclass 820 partner visa and contain assertions that the delegate communicated a view that cancellation of the partner visa was justified in the letter dated 4 April 2017.[1]  As has been earlier recorded, the letter from the Department to the applicant dated 4 April 2017 sought evidence from the applicant that he was the spouse or de facto partner of his sponsor prior to the cessation of their relationship.  It said nothing about the cancellation of a visa which is unsurprising given that it was concerned with the applicant’s extant application for the visa.

   [1] Applicant’s written submissions at [22].

5. The applicant’s submissions also contain an allegation that the Tribunal failed to comply with s 360(1) of the Act which requires the Tribunal to invite a review applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review. The applicant states: “The Second Respondent invited the Applicant to comment on the issues identified by it being establishing perpetration of family violence against him by the sponsor.  On the other hand, the delegated (sic) repeatedly insisted that the provisions related to family violence were not applicable to his situation as his relationship was not genuine from the beginning.  It is difficult to conclude that the Applicant was invited in real sense to comment on the ‘issues in dispute’”.[2]

   [2] Applicant’s written submissions at [26].

6. While it is true that in determining the “issues arising in relation to the decision under review” the starting point will usually be the decision of the delegate,[3] there is no requirement that the “issues” remain fixed in time and by reference to that earlier decision. Provided that the Tribunal identifies any different issues, which the applicant acknowledges occurred in this case, there will be no failure to comply with s 360(1) of the Act.

   [3] SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [35].

   ORDERS

7. In circumstances when the applicant has not succeeded in establishing the existence of jurisdictional error in any of his grounds, I will order that the application for review filed on 28 February 2019 be dismissed.

8. I will also order that the applicant pay the first respondent’s costs fixed in the amount of $8,371.30.

I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Symons.

Associate:

Dated: 19 November 2024