Law v Minister for Immigration

[2019] FCCA 3592

FEDERAL CIRCUIT COURT OF AUSTRALIA

LAW v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 3592

Catchwords:

MIGRATION – Review of administrative appeals decision – whether decision affected by jurisdictional error – jurisdictional error not established – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.5C(b)

Migration Regulations 1994 (Cth), reg.1.09A

Cases cited:

He v Minister for Immigration and Border Protection [2017] FCAFC 206

Applicant: SI YING LAW

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 1294 of 2018

Judgment of: Judge Vasta

Hearing date: 23 October 2019

Date of Last Submission: 23 October 2019

Delivered at: Brisbane

Delivered on: 23 October 2019

REPRESENTATION

The Applicant appearing on her own behalf

Solicitors for the First Respondent: MINTER ELLISON

ORDERS

1. That the name of the First Respondent be varied to read “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

2. That the Application filed 17 December 2018 is dismissed.

3. That the Applicant pay the costs of the First Respondent fixed in the sum of $5,600.00.

IT IS NOTED:

A.That the Court will not provide a written version of the reasons for judgment delivered today, unless an appeal has been lodged and the Court has received a request in writing from either party seeking that written reasons be produced.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 1294 of 2018

SI YANG LAW

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

1. On 27 November 2018, the Administrative Appeals Tribunal (“the Tribunal”) affirmed a decision not to grant the Applicant Si Ying Law a partner visa.  On 17 December 2018, the Applicant lodged an originating application in this Court, asking the Court to review that decision. 

2. The background to the matter is this.  The Applicant is a citizen of Hong Kong.  She was born on 7 September 1962.  She has travelled to Australia a number of times on visitor and student visas since 2006.  The last of those visas was granted on 16 January 2012.

3. The sponsor is a citizen of Australia.  He was born on 8 August 1961.  The parties claim to have met in July 2011, and then began a de facto relationship in November 2011.  The parties say they lived in an address at 57 Catchlove Street, Maudsland, from that time until February 2015. 

4. The Applicant lodged the partner visa in March of 2013.  The department wrote to the Applicant on 14 January 2014, asking for information to support the second stage of the visa process.  The Applicant didn’t respond. 

5. On 5 October 2016, the Applicant lodged a DV protection order request, naming the sponsor and stating that they separated in February 2015.  It would seem that this application was granted, and a domestic violence order was made.  That meant that there were a number of issues that were alive in the matter. 

6. Firstly, the AAT had to be convinced that the parties were in a genuine, continuing and exclusive relationship at the time that the Applicant claims that she suffered domestic violence at the hands of the sponsor. 

7. So the first step was to determine whether the Applicants were actually in a de facto relationship.  The Migration Act 1958 (Cth) (“the Act”) provides that a person is in a de facto relationship with another person to whom they are not married: if they have a mutual agreement to a shared life, to the exclusion of all others; the relationship is genuine and continuing; the couple live together or do not live separately and apart on a permanent basis; and, they’re not related by family. In forming an opinion as to whether the parties are in a de facto relationship, the AAT was obliged to look at the matters contained in reg.1.09A of the Migration Regulations 1994 (Cth).

8. There are some 15 considerations in that regulation.  The Applicant provided the Tribunal with a number of hard copy documents, including a statement from the ex-partner, medical records, bank statements and so on. 

9. The Applicant told the Tribunal that she and the ex-partner were in a genuine relationship at the time her temporary visa was granted, in October 2014.  She told the Tribunal, at the time, her brother and her niece were living with them.  The Tribunal asked the Applicant if either her brother or her niece witnessed the family violence that she spoke of, and she claims that they didn’t.  She said that she was too embarrassed to discuss what was happening with her family. 

10. The Tribunal looked at the statement given by the ex-partner – for some reason, it didn’t make it into the Court Book, but I have been given a copy, which I have marked as Exhibit 1.  It is a matter which the Tribunal has said that they gave the document little determinative weight. 

11. The Tribunal asked the Applicant if she sought assistance from anyone about her situation, and she said that she didn’t.  She said that she suffered from anxiety and depression, and did not seek help.  She did give the Tribunal some medical documents, which showed she attended a psychologist five times, from October 17 2017 to January 2018.  The documents also show she had some physical conditions which required medical intervention during the period 2015 to 2018.  Again, the Tribunal didn’t give these documents any determinative weight. 

12. The Applicant told the Tribunal she didn’t think she could get help from anyone or seek a protection order, until she spoke to the department in October 2016.  The Tribunal put to the Applicant that the fact that she didn’t seek a protection order until more than 18 months after the alleged incidents did not lend much weight to her claim that the relationship ended as a result of domestic violence. 

13. The Tribunal put to her that the actual order didn’t state what violence had been committed or when, and the Tribunal could form a view that the violence was in relation to her desire to recover money from her ex-partner, rather than domestic violence. The Tribunal said to the Applicant if it forms such a view, that it would affirm the decision that was under review. 

14. The Applicant strongly denied that she took out the protection order in relation to money owed to her.  She said that that was separate to the domestic violence that she suffered during the relationship. 

15. The Tribunal put to her that she hadn’t been able to provide any contemporaneous corroborating evidence of that alleged violence, and all of the evidence that was provided suggested that the alleged violence if it occurred, occurred after the relationship had broken down.

16. The Applicant said she did not know that she could seek help.  The Tribunal found that this explanation was unpersuasive.  The Applicant had her brother staying with her, and said nothing to him.  Furthermore, the Applicant had a migration advisor at the time, and said nothing to that person either. 

17. The Applicant provided the Tribunal with a Court-determined binding financial agreement, which shows that the relationship ceased in 2015.  And, as she says, shows that there is no argument with the ex-partner about financial matters.

18. The Applicant claimed the abuse started around 2 years prior to October 2014, which would put the abuse commencing around November 2012.  The visa application, which is the subject of this review, was lodged on 13 March 2013.  The Tribunal noted if this is indeed the case, then the Applicant had misled the department in relation to a visa application, by stating she was in a genuine, continuing and exclusive relationship at the time of the application.  Clearly, this wasn’t the case. 

19. The other alternative, the Tribunal found, was that the Applicant was being untruthful about the domestic violence claims.

20. The Tribunal noted that the Applicant’s ex-partner, in the statement that I have referred to, conceded that the two of them were in a genuine, continuing relationship, but this was contradicted by the fact that he consented without admission to a protection order. 

21. The Tribunal said, in any case, the Tribunal could not be satisfied on the basis of the evidence before it that the parties were in a genuine, continuing and exclusive relationship, as envisaged by the Migration Act at the time the alleged domestic violence, or of the alleged domestic violence, or that such violence was a reason as to why the relationship ended.

22. The Tribunal did have the DV application before it.  That application is at page 218 of the Court Book.  At page 220, in the section headed “temporary protection order,” the Applicant wrote this, and I read it in whole:

    Recently, I decided to involve lawyers in our separation to attempt to gain back a lot of money that Mitchell has refused to give back to me.  We were together for about three and a half years, and separating in February 2015 due to his very disrespectful and humiliating behaviour towards me.  Due to my seeking legal advice, I am quite scared that Mitchell might do something bad to me or my family.  Mitchell has recently refused to support my permanent visa application, due to being in a new relationship.  But during the time we were together, he would regularly threaten not to support my visa application to attempt to control me.  In the last approximately two years of our relationship, Mitchell began having affairs and bringing other women home, and having sex in our bed, including when I was in the home.  In approximately November 2014, before we separated, he had begun frequently bringing women into our home.  On one occasion, he was with a woman in the room overnight.  I was in the house, and when I eventually saw him, he stared at me with such a scary look that I felt too afraid to say anything.  I chose to lock myself in our study.

23. In her grounds for a protection order at page 221, the Applicant wrote and I will read it in whole:

    I chose to leave the property in February 2015 as I couldn’t be with him anymore and at that time Mitchell returned to me a sum of $10,000.  Altogether he has locked in his safe $50,000 of my money.  During our relationship I have also worked part time and he demanded I give him my earnings, and when I ask for some money he would control this and give me a small amount. During our relationship he would also expect me to look after the home, cook, clean and have sex with him regularly.  I was comfortable with undertaking these roles when we were only seeing each other, but once he started bringing other women into the home I felt degraded.

    After Mitchell started seeing other women he began to become more disrespectful to me.  For example, he started making fun of me when I was speaking English by making strange sounds as if imitating me, it was awful.  After having sex with other women he would demand I give him oral sex, forcing me to do this at times by holding my head and pushing it against his body so he could ejaculate in my mouth.  There were times when I knew that he had earlier had sex with other women as he was not clean, or he smelled.  Often, one particular woman would repeatedly come to our house in my presence and have sex with Mitchell despite knowing I was his partner, I felt bullied by this behaviour.  I stopped sleeping in our bedroom once his affairs became more frequent.

    Due to all the stress that Mitchell’s behaviour caused I became very unwell around the time of separation, and my blood pressure became so low my doctor told me I could die.  I continue to feel the impact of his abuse in my day to day life and now have the added stress that I may not be able to remain living in Australia.

24. At page 224 the Applicant writes, I will read it in whole:

    I do not want him to come to my place of residence or where I’m staying because I’m afraid he will increase his harassment of me due to legal proceedings.

    She then wrote:

    I am afraid of the respondent, I believe he will try to harass me because I am seeking to get my money back from him.

    Further, on that page:

    I am afraid he will try to harass me regarding my legal proceedings and intimidate me.

    And then, finally, she wrote:

    I am afraid he will harass me and try to interfere with my legal proceedings to recover my money.

25. The statement was signed on 5 October 2016 at Southport.  The AAT concluded at paragraph 35 of their reasons:

    At the very least, it seems to the tribunal that the relationship between the Applicant and her ex-partner was not exclusive, as envisaged by the Migration Act.

26. The Tribunal then said:

    Equally, the financial arrangements between the parties are unclear.  The Applicant claims that she never worked but was supported by her ex-partner, there is little documentary or other corroborating evidence to support this claim.

    The tribunal is not satisfied the parties have a mutual commitment to a shared life, to the exclusion of all others.  The tribunal is not satisfied that the relationship between the parties is genuine and continuing or that they live together.  On the basis of the above, the tribunal is not satisfied that the requirements of s.5C(b) are met at the time of the decision.

27. The Tribunal noted that the Applicant claims that the relationship broke down as a result of domestic violence and that she may meet the exception.  But the Tribunal said at paragraph 40:

    This clause, however, requires that the Applicant and her sponsor be in a genuine, ongoing, and exclusive spousal relationship at the time of the alleged domestic violence and that the relationship ceased only as a result of the alleged domestic violence.

28. The Tribunal said that they were not satisfied that the parties were in the required relationship at the time and so, therefore, they weren’t required to consider the Applicant’s domestic violence claims.  For those reasons, the Tribunal affirmed the decision. 

29. In the application before the court, the Applicant wrote as the only ground, this:

    1. The Applicant strongly believes that some of the information provided by the Immigration agent to the tribunal is wrong.

30. That was all that was said.  In the Applicant’s affidavit, she wrote:

    The information provided to the tribunal has multiple errors.  I later came to full realisation after carefully reading the full document of the tribunal review that they may have been provided with some wrong facts.  I would like to right these errors, which I believe led to the refusal of my visa.

31. The Applicant put nothing more before the Court.  She appeared today with the aid of an interpreter.  She told me that she didn’t go to the AAT with her ex-partner because she was told that if she went with him, her chances of success before the AAT would be low.  She also did not go with her lawyer, though she doesn’t give a reason as to why that happened.  There is a note in the Court Book that the lawyer, or the migration agent, had written to the AAT saying that he would not be attending.

32. She said that her lawyer told her that the department, to use a double negative, did not not agree that she had experienced domestic violence.  But what they doubted was that after she received her temporary visa, that the two of them lived together. 

33. She said to this Court today that the AAT was concerned as to whether she had suffered domestic violence. The Applicant submitted to me that this meant that the department and the AAT had focused on different matters.  I should pause there to say that such is not an error and, in fact, does show that the system is working in that the AAT is not slavishly following the department but is actually bringing a fresh mind to bear on these issues.

34. The Applicant reiterated to me that her ex-partner had given a statement to the AAT, but she said that the AAT believed that the domestic violence that existed was because of an argument that was based on financial matters.  She said to me that, within 24 hours of some particular notice that was given to her, she had returned all the amount of money that she was arguing about with her ex-partner.  She submitted to me that this means any assumption that the domestic violence occurred because of financial matters was wrong.

35. She said that the AAT had said that the domestic violence had occurred in 2012.  She submitted to me that that was wrong; that the domestic violence started in October or November of 2014. 

36. She said that the AAT said that she had an issue with mental health, but she believes that this is a misinterpretation of what it is that she had actually said.  She said that the AAT had asked her to provide letters from a psychologist. 

37. She reiterated that she told the AAT that she had suffered domestic violence in her first marriage and simply couldn’t stand it again in her second relationship.

38. I allowed the Applicant to say whatever it was that she wanted, and she made very full submissions.  However they were, realistically, an attempt to have this Court conduct an impermissible merits review.  During the interchange I had with the legal representative of the Minister, I pointed out that the Applicant’s own statements that the sponsor had been having affairs with other women meant that the relationship that she had could not be described as being one that was “exclusive of all others”.

39. When I asked her if she wanted to say anything in reply, she then said to me that she didn’t think that what the AAT had said about the husband having affairs with other women was accurate.  However, what I did was I read from her own domestic violence application that she had lodged at the Southport Courthouse. 

40. It seems to me that the Applicant has not illustrated that there has been any error in principle or in the way in which the AAT has gone about their business or their decision making.  It also is clear to me that the Applicant has not shown me where there was any misinterpretation of the salient matters that the AAT had to consider.

41. The conclusion that the AAT came to, that this was not a genuine relationship that was to the exclusion of all others, was a conclusion that was open on the evidence.  Once the AAT had come to that conclusion, which was open on the Applicant’s own evidence, there was no need to continue to go through the aspects of the relationship as required in authorities such as He v Minister for Immigration and Border Protection [2017] FCAFC 206.

42. For those reasons, I do not find that there is any jurisdictional error that has been illustrated and that the application should be therefore dismissed.  I order the Applicant pay the Minister’s costs in the sum of $5,600.  And I will make a change to the name of the Minister. 

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date:  10 December 2019