Liang v Minister for Immigration
[2008] FMCA 9
•7 February 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LIANG v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 9 |
| MIGRATION – Migration Review Tribunal – partner visa – whether evidence of domestic violence may be relevant to the question of the genuineness of the relationship – whether separate reason for decision – application dismissed. |
| Migration Act 1958, ss.54, 55 Migration Regulations 1994, reg.1.15A, sch.2 cl.100.221 |
| Bretag v Immigration Review Tribunal (Unreported, Federal Court, O’Loughlin J, 29 November 1991) El Mohamad v Minister for Immigration and Citizenship [2007] FMCA 345 Guven v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FMCA 311 at [23]-[24] Mehmedoski vMinister for Immigration and Citizenship [2007] FMCA 226 Pham vMinister for Immigration and Multicultural and Indigenous Affairs [2007] FMCA 827 Tang vMinister for Immigration and Multicultural and Indigenous Affairs [2006] FMCA 60 |
| Applicant: | LI CHANG LIANG |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File number: | MLG 450 of 2007 |
| Judgment of: | Riley FM |
| Hearing date: | 19 November 2007 |
| Date of last submission: | 19 November 2007 |
| Delivered at: | Melbourne |
| Delivered on: | 7 February 2008 |
REPRESENTATION
| Counsel for the Applicant: | Murray Gerkens |
| Solicitors for the Applicant: | FCG Legal Pty Ltd |
| Counsel for the Respondent: | Warren S. Mosley |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application filed on 13 April 2007 be dismissed.
The applicant pay the first respondent’s costs, fixed in the sum of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 450 of 2007
| LI CHANG LIANG |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
And
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for judicial review of a decision of the Migration Review Tribunal. The applicant applied for a spouse visa on
26 October 2000after marrying the sponsor on 25 October 2000. The applicant arrived in Australia in May 2003.
The applicant claimed that she initially lived with the sponsor in Box Hill and then in a jointly leased property in Blackburn Road. The applicant subsequently bought a house in Crossman Street, Doncaster in her sole name. She claimed that she and the sponsor moved into the house together in May 2005.
The sponsor had been previously married and had two children with his former wife. The sponsor and his former wife were divorced on
24 September 1999. However, they later conceived another child who was born on 13 November 2000. On 7 March 2002, the sponsor, his former wife and their children travelled back from China on the same aeroplane. On his 2003 tax return, the sponsor gave his address as a particular house in Maxia Rd, Doncaster East. That was the address where his former wife and children lived. The sponsor paid the mortgage on that property.
Departmental officers conducted a site visit on 3 March 2004 at the Blackburn Road property. They found that very little male clothing was kept at those premises and that the sponsor incorrectly described the location of that clothing. They also found that all of the sponsor’s personal documents were kept at the Maxia Road address. On 1 April 2004, departmental officers conducted a site visit at the Maxia Road house. The sponsor’s former wife told the officers that the sponsor sometimes lived there with her.
The applicant told the Tribunal that she and the sponsor never went out together and she had never met any of his friends. The applicant’s siblings had very little if any knowledge of the relationship between the applicant and the sponsor. The applicant and the sponsor had a joint bank account showing an opening balance of $500 and one withdrawal of $200 and a joint liability for utilities.
After the site visits, the applicant provided to the delegate a statutory declaration made on 14 July 2004 by a psychiatrist. The psychiatrist said that the applicant had been referred to her on 23 June 2004. The psychiatrist said that she had observed bruises on the applicant's arm on 6 July 2004 when the applicant also appeared anxious and depressed. The psychiatrist reported that the sponsor had beaten up the applicant who had been severely “insomnic” in the previous nine months.
The applicant also provided to the delegate a copy of an intervention order made on 15 July 2004 against the sponsor for the protection of the applicant. The order indicated that the sponsor had been served with a copy of the complaint and summons but that he had not attended the hearing. The order gave the sponsor's address as the Crossman Street address and restrained the sponsor from knowingly being within 200 metres of that address.
Additionally, a women’s refuge sent a letter dated 26 July 2004 to the department stating that the applicant had fled her home due to domestic violence. The letter stated that the applicant had gone to a particular refuge on 12 July 2004 and that her new address was a particular post office box.
Legislation
The relevant criteria for the grant of a permanent partner visa are set out in clause 100.221 of schedule 2 of the Migration Regulations 1994 which states that:
Criteria to be satisfied at time of decision
(1)The applicant meets the requirements of subclause (2), (2A), (3), (4) or (4A).
(2)The applicant meets the requirements of this subclause if:
(a)the applicant:
(i) is the holder of a Subclass 309 (Spouse (Provisional)) visa; or
…
(b)the applicant is the spouse of the sponsoring spouse; and
(c)subject to subclauses (5), (6) and (7), at least 2 years have passed since the application was made.
…
(4) The applicant meets the requirements of this subclause if:
(a)the applicant first entered Australia as the holder of a Subclass 309 (Spouse (Provisional)) visa and either:
(i) continues to be the holder of that visa; or
(ii) is no longer the holder of that visa because the visa:
(A)was granted before 1 November 1999; and
(B)has ceased to be in effect because the applicant:
(I)was outside Australia at the end of the 30 month period specified in the Subclass 309 visa for travelling to and entering Australia; or
(II)left Australia after the end of the 30 month period specified in that visa for travelling to and entering Australia; and
(b)the applicant would meet the requirements of subclause (2) or (2A) except that the relationship between the applicant and the sponsoring spouse has ceased; and
(c)after the applicant first entered Australia as the holder of the visa mentioned in paragraph (a) -- either or both of the following circumstances applies:
(i) either or both of the following:
(A)the applicant;
(B)a member of the family unit of the sponsoring spouse or of the applicant or of both of them;
has suffered family violence committed by the sponsoring spouse;
(ii) the applicant:
(A)has custody or joint custody of, or access to; or
(B)has a residence order or contact order made under the Family Law Act 1975 relating to;
at least 1 child in respect of whom the sponsoring spouse:
(C)has been granted joint custody or access by a court; or
(D)has a residence order or contact order made under the Family Law Act 1975 ; or
(E)has an obligation under a child maintenance order made under the Family Law Act 1975 , or any other formal maintenance obligation.
Note:For special provisions relating to family violence, see Division 1.5.
“Spouse” is relevantly defined in reg.1.15A as follows:
1.15A Spouse
(1)For the purposes of these Regulations, a person is the spouse of another person if the 2 persons are:
(a)in a married relationship, as described in subregulation (1A); or
(b)in a de facto relationship, as described in subregulation (2).
(1A) Persons are in a married relationship if:
(a)they are married to each other under a marriage that is recognised as valid for the purposes of the Act; and
(b) the Minister is satisfied that:
(i) they have a mutual commitment to a shared life as husband and wife to the exclusion of all others; and
(ii) the relationship between them is genuine and continuing; and
(iii) they:
(A)live together; or
(B)do not live separately and apart on a permanent basis.
…
(3)In forming an opinion whether 2 persons are in a married relationship, or a de facto relationship, in relation to an application for:
…
(ae)a Partner (Provisional) (Class UF) visa; or
…
the Minister must have regard to all of the circumstances of the relationship, including, in particular:
(a) the financial aspects of the relationship, including:
(i) any joint ownership of real estate or other major assets; and
(ii) any joint liabilities; and
(iii) the extent of any pooling of financial resources, especially in relation to major financial commitments; and
(iv) whether one party to the relationship owes any legal obligation in respect of the other; and
(v) the basis of any sharing of day‑to‑day household expenses;
(b)the nature of the household, including:
(i) any joint responsibility for care and support of children, if any; and
(ii) the parties’ living arrangements; and
(iii) any sharing of responsibility for housework;
(c)the social aspects of the relationship, including:
(i) whether the persons represent themselves to other people as being married or in a de facto relationship with each other;
(ii) the opinion of the persons’ friends and acquaintances about the nature of the relationship; and
(iii) any basis on which the persons plan and undertake joint social activities;
(d)the nature of the persons’ commitment to each other, including:
(i) the duration of the relationship; and
(ii) the length of time during which the persons have lived together; and
(iii) the degree of companionship and emotional support that the persons draw from each other; and
(iv) whether the persons see the relationship as a long‑term one.
…
(5)If 2 persons have been living together at the same address for 6 months or longer, that fact is to be taken to be strong evidence that the relationship is genuine and continuing, but a relationship of shorter duration is not to be taken not to be genuine and continuing only for that reason.
The Tribunal’s decision
The Tribunal noted that the applicant gave oral evidence that the sponsor had scolded her, punched her and broke things. The Tribunal also noted the applicant's oral claim that the sponsor had hit her with coat hangers and punched her in July 2005. The Tribunal noted the applicant's claim that the police had attended the house and she had spent 10 days in a women's refuge. It appears that the Tribunal's reference to July 2005, rather than 2004, was a mistake made either by the applicant or the Tribunal. The Tribunal noted that the applicant had provided a copy intervention order and related documents.
The Tribunal also noted that the applicant gave oral evidence that she could not comment on whether her marriage was genuine but claimed that she was honest. She also claimed that she was sincere in her marriage but said she did not know what the sponsor had in his mind.
After the hearing, the Tribunal sent the applicant a letter under s.359A of the Migration Act 1958. The letter was largely directed to the possibility that the sponsor was still in a marital relationship with his ex-wife notwithstanding that they were divorced. The Tribunal summarised the applicant's response including the claim that the sponsor had hit the applicant and threatened her prior to the departmental interview.
In its findings and reasons, the Tribunal said that “the issue of domestic violence is only relevant if the parties were in fact spouses.” The Tribunal said that “it is open to the Tribunal to make a factual finding on whether there was ever such a relationship, before addressing the domestic violence claims at time of decision.”
The Tribunal did not accept that the parties had shared a household and considered that it was more likely that the sponsor had lived with his former wife during his marriage to the applicant. The Tribunal concluded that the sponsor was not committed to his relationship with the applicant and had never truly separated from his former wife. The Tribunal said, “Although the relationship endured for about 4 years, the Tribunal is not persuaded that there was ever a mutual commitment to a spousal relationship.” Finally, the Tribunal said that, “Accordingly, there is no requirement for the Tribunal to consider the domestic violence provisions, and the evidence provided by the visa applicant in that regard.”
Grounds of review
The application filed in this court on 13 April 2007 contained the following grounds of review:
1. The decision was made without jurisdiction or is affected by an error of jurisdiction.
PARTICULARS
(a) The Tribunal erred in failing to consider the evidence of domestic violence as a separate and distinct question which went to the issue of whether there was a pre-existing spousal relationship, that is, by adopting a two stage approach sanctioned by Collins v. Minister for Immigration and Multicultural and Indigenous Affairs [2003] FMCA 571 and Guven v. Minister for Immigration and Multicultural and Indigenous Affairs [2006] FMCA 311 the Tribunal incorrectly excluded the evidence of domestic violence and thereby failed to consider an element of the applicant’s claim;
(b) The Tribunal misunderstood the dual role of the evidence as to domestic violence, firstly as part of the claim, and secondly in purported satisfaction of the Special provisions relating to domestic violence found in Division 1.5 of the Migration Regulations 1994;
(c) The Tribunal erred in finding that it needed only to deal with the evidence of domestic violence if and when it made a threshold finding as (sic) the genuineness of the spousal relationship;
(d) The Tribunal failed to consider and/or apply the principle in the case of Bretag v. Minister for Immigration, Local Government and Ethnic Affairs, Unreported Federal Court, O’Loughlin J, 29 November 1991, that the subsequent history of the relationship, albeit one marred by domestic violence, may be relevant to show the existence of a pre-existing fact, in this case, a genuine spousal relationship;
(e) The Tribunal failed to consider or apply relevant policy when considering regulation 1.15A(3)(c), the Social aspects of the relationship, in that PAM3 provided, amongst other things, that officers may be satisfied on the basis of indications that the relationship has been declared to other government bodies and commercial/public institutions and authorities and acceptance of these declarations by these bodies, relevantly in this case, the Magistrates court which issued the Intervention Orders following a claim of domestic violence.
In addition, at the hearing before this court the applicant contended that the Tribunal had failed to comply with s.54 and s.55 of the Migration Act 1958 and should not have applied the principle in Bretag v Immigration Review Tribunal (Unreported, Federal Court,
O’Loughlin J, 29 November 1991) to the effect that subsequent events may be considered to determine the nature of a relationship at an earlier point in time where those events tend “logically to show the existence or non-existence of facts relevant to the issue to be determined.”
Submissions
The applicant submitted that:
a)the Tribunal had made a jurisdictional error by adopting a two-stage process which entailed quarantining the evidence of domestic violence for separate consideration if and when the Tribunal concluded that there had been a genuine spousal relationship;
b)domestic violence was one of the circumstances of the history of the relationship;
c)the mere fact of domestic violence tended to suggest that there had been a relationship involving cohabitation;
d)this in turn suggested that the relationship was genuine albeit abusive;
e)the Tribunal's failure to address the evidence of domestic violence was not a simple factual error but a failure to deal with an aspect of the claim which amounted to jurisdictional error;
f)the Federal Magistrates Court in Guven v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FMCA 311 at [23]-[24] did not go so far as to say that evidence of domestic violence did not need to be considered at all;
g)the Federal Magistrates Court in Pham vMinister for Immigration and Multicultural and Indigenous Affairs [2007] FMCA 827 noted at [140] that “theoretically … domestic violence may show the state of the relationship earlier” and otherwise said that the Tribunal was required to take into account relevant evidence;
h)sections 54 and 55 of the Migration Act 1958 require the decision maker to have regard to all of the information in the application;
i)it was mandatory for the Tribunal to have regard to the information about domestic violence in this case;
j)the Tribunal must have regard to the information before it can decide whether to give it any weight; and
k)the principle in Bretag does not apply in this case because there was no particular date when the spousal relationship needed to exist.
The first respondent submitted that:
a)the Tribunal’s two-stage process is amply supported by authority;
b)the evidence of domestic violence in this case did not tend logically to show that the applicant and the sponsor had ever been in a genuine spousal relationship;
c)in the alternative, the Tribunal focused on whether the relationship between the applicant and the sponsor was to the exclusion of all others, and, in particular, the sponsor’s former wife;
d)the Tribunal particularly noted that the sponsor’s ex-wife was living in his house, that he gave that address to the tax office as his own, that he sometimes lived with his ex-wife, that he left personal items at his house where his ex-wife lived, that he returned from China with her and their children and that the applicant and his ex-wife conceived another child after they were divorced;
e)the Federal Magistrates Court in El Mohamad v Minister for Immigration and Citizenship [2007] FMCA 345, in a case very similar to the present one, said at [30] that:
In the context of this particular case the domestic violence issue was not of such central relevance that it would have been a jurisdictional error on the part of the Tribunal to fail to make formal findings as to the domestic violence in determining whether or not the relationship was never a spousal relationship within the meaning of reg. 1.15A.
f)the Federal Magistrates Court in Tang vMinister for Immigration and Multicultural and Indigenous Affairs [2006] FMCA 60 at [14] held that the “Tribunal was not required to consider domestic violence under 820.211(8)(d) (Migration Regulations) unless it was satisfied of the existence of the necessary relationship at one point in time”;
g)the Federal Magistrates Court in Mehmedoski vMinister for Immigration and Citizenship [2007] FMCA 226 at [44] held that, “the Tribunal can consider whether or not there ever was a spousal relationship before being required to consider whether domestic violence has occurred”;
h)the passage the applicant seeks to impugn in the Tribunal's decision is that, “there is no requirement for the Tribunal to consider the domestic violence provisions, and the evidence provided by the visa applicant in that regard”;
i)this passage, properly construed, means that the Tribunal was not required to consider the evidence of domestic violence for the purposes of the domestic violence provisions;
j)the passage does not mean that the Tribunal thought that it was not required to consider the evidence of domestic violence at all;
k)the Tribunal did not fail to have regard to the evidence of domestic violence and set out in detail at pages 5 and 6 of its decision the applicant's oral evidence about domestic violence and noted at pages 7 and 8 of its decision that the applicant had submitted various medical documents and an intervention order and “related documents”;
l)the Tribunal is entitled to give such weight as it deems fit to items of evidence;
m)the evidence of domestic violence could not have gone to the issue of whether the sponsor was still involved in a spousal relationship with his ex-wife except to bolster the conclusion that the sponsor lacked the necessary commitment to the applicant;
n)the Tribunal did not accept that the applicant and the sponsor had shared a household in Australia, based on the home visit and the sponsor’s claim that the applicant, the sponsor, his children and his ex-wife all lived together at the sponsor's house in Doncaster East while the applicant claimed that she had never lived there; and
o)sections 54 and 55 of the Migration Act 1958 only apply to decisions made by the delegate; there is no equivalent provision in the Act in relation to decisions of the Tribunal.
Consideration
I accept that ss.54 and 55 of the Migration Act 1958 do not apply to decisions made by the Tribunal. Nevertheless, reg.1.15A(3) requires the Tribunal to have regard to all the circumstances of the relationship. Domestic violence is one such circumstance. Moreover, the Tribunal is under a general obligation to consider the evidence as a whole. The Tribunal cannot quarantine relevant evidence from its consideration of a particular matter. Having said that, the Tribunal is of course entitled to give such weight to items of evidence as it deems fit.
In considering an application for a partner visa where there is a claim of domestic violence, it is entirely proper for the Tribunal to undertake a two-stage process. The first stage involves determining whether there has ever been a genuine spousal relationship. If so, the Tribunal should undertake the second stage, which involves determining whether the domestic violence provisions have been satisfied.
However, the two-stage process does not mean that evidence of domestic violence is necessarily irrelevant to the question of whether the applicant and sponsor have ever been in a genuine spousal relationship. For example, the evidence relating to domestic violence might include evidence that supports a claim of cohabitation, or a claim that the applicant and sponsor were known to friends, family or the authorities as a couple.
Clearly, domestic violence occurs in the context of a relationship of some sort. Sometimes, the Tribunal will determine that the relationship was a genuine and exclusive spousal relationship and sometimes it will conclude that it was some other sort of relationship. Alternatively, the Tribunal might decide that there was no domestic violence at all.
In the present case, the Tribunal accepted that the relationship between the applicant and the sponsor “endured for about 4 years”. However, the Tribunal was “not persuaded that there was ever a mutual commitment to a spousal relationship” because the Tribunal concluded that it was “far more likely” that the sponsor and his ex-wife “were still engaged in a marital relationship, despite their divorce”. Before reaching that conclusion, the Tribunal formed the view that it was “more likely that the sponsor did not reside with the visa applicant, but rather with his ex-wife during the marriage.”
While there was strong evidence in this case that the sponsor was not in an exclusive relationship with the applicant, there was also some evidence that he cohabited with her. Indeed, the Tribunal said towards the end of its decision that the sponsor “sometimes” resided with his ex-wife, implying that, at other times, he cohabited with the applicant.
The evidence that the applicant and the sponsor cohabited included the statutory declaration from the psychiatrist and the intervention order. The statutory declaration from the psychiatrist said that the applicant “is now very scared of co-habiting with her husband”. It was implicit in the statutory declaration that the psychiatrist was under the impression that the applicant and sponsor had cohabited since the applicant’s arrival in Australia in May 2003 until July 2004 when the statutory declaration was made. The intervention order recorded the sponsor’s address as the applicant’s address in Crossman Street.
Of course, the Tribunal was entitled to form the view that the psychiatrist was simply recounting what she had been told and that the bruising and clinical signs of anxiety observed by the psychiatrist had some other cause. The Tribunal was also entitled to form the view that the sponsor’s address on the intervention order had been provided by the applicant and the sponsor had simply not bothered to attend court to correct the address or otherwise defend the allegations. The Tribunal was entitled, on a proper basis, to give no weight to both of these items of evidence.
However, the Tribunal was not entitled to ignore evidence which went to the question of cohabitation, where that question was central to the Tribunal’s decision. That is especially so, given that reg. 1.15A(5) requires cohabitation of at least six months to be taken as strong evidence of the genuineness of the relationship.
Nevertheless, the Tribunal in this case does appear to have had a separate reason for affirming the decision under review. That reason was that the relationship between the applicant and the sponsor was not to the exclusion of all others, in that the sponsor was found to have been in a continuing marital relationship with his ex-wife. In reaching this conclusion, the Tribunal said that the sponsor “sometimes” resided with his ex-wife, and impliedly accepted that the sponsor resided with the applicant when she was not overseas. More particularly, the Tribunal’s reasons for considering that the sponsor was not in a relationship with the applicant “to the exclusion of all others” were as follows:
The Tribunal regards the fact that the ex-wife was residing in the sponsor’s house, that he gave that address as his own, that he sometimes resided with her (which the visa applicant conceded may have occurred during her absences from Australia), left personal items at her house, travelled overseas and had a child with her after their divorce significant. The Tribunal finds it far more likely that the reason for this was that they were still engaged in a marital relationship, despite their divorce. The Tribunal has difficulty accepting the assertion that an exclusive relationship could exist in this case despite the continued presence of the ex-wife.
The Tribunal, in this part of its reasoning, seems to have accepted that the applicant and the sponsor had a significant and substantial relationship. The Tribunal elsewhere expressly accepted that the applicant and sponsor had a relationship which lasted for four years. In these circumstances, the domestic violence evidence could not have gone further than establish matters that the Tribunal expressly or impliedly accepted in connection with its conclusion that the relationship between the applicant and the sponsor was not to the exclusion of all others. Accordingly, a more express consideration of the domestic violence evidence could not, on any view, have made a difference to that separate conclusion or the Tribunal’s ultimate decision.
If the Tribunal had not given a separate reason for affirming the decision under review, I would have been inclined to allow the application. That is because it appears from the quotations set out at paragraphs 14 and 15 above that the Tribunal was under the misapprehension that it could ignore evidence concerning domestic violence in determining the genuineness of the relationship, even where that evidence was relevant to the genuineness issue. While the Tribunal referred to the evidence relating to domestic violence in the “Claims and Evidence” segment of its reasons, it did not refer to any of that evidence in the “Findings” segment of its reasons. It did not specifically reject or say it was giving no weight to any of the domestic violence evidence. These matters support the conclusion that the Tribunal considered, wrongly, that it could quarantine the domestic violence evidence from its consideration of whether the relationship between the applicant and the sponsor was a genuine spousal relationship.
However, in view of the separate reason for the decision, the application must be dismissed with costs.
And I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Riley FM
Associate:
Date:
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