Liu v Minister for Home Affairs
[2019] FCA 1925
•20 November 2019
FEDERAL COURT OF AUSTRALIA
Liu v Minister for Home Affairs [2019] FCA 1925
Appeal from: Liu v Minister for Immigration & Anor [2019] FCCA 1638 File number: NSD 1024 of 2019 Judge: NICHOLAS J Date of judgment: 20 November 2019 Catchwords: MIGRATION – whether appellant satisfied requirements for Partner (Permanent) (Class BS) (Subclass 801) visa – whether primary judge misconstrued cl 806.211 of Schedule 2 of Migration Regulations 1994 (Cth) – no error in primary judge’s reasoning – appeal dismissed Legislation: Migration Act 1958 (Cth) s 5F
Migration Regulations 1994 (Cth) cll 820.211, 820.221
Date of hearing: 19 November 2019 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 24 Counsel for the Appellant: Mr L Karp Solicitor for the Appellant: Australia United Lawyers Counsel for the First Respondent: Mr T Reilly Solicitor for the First Respondent: Australian Government Solicitor Counsel for the Second Respondent: The second respondent submitted save as to costs ORDERS
NSD 1024 of 2019 BETWEEN: YUJIA LIU
Appellant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
NICHOLAS J
DATE OF ORDER:
20 NOVEMBER 2019
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first respondent’s costs of the appeal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
NICHOLAS J:
This is an appeal from a judgment of the Federal Circuit Court of Australia (Judge Manousaridis) dismissing an application for review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) affirming a decision of a delegate of the first respondent to refuse the appellant a Partner (Permanent) (Class BS) (Subclass 801) visa.
The appellant applied for the Partner (Permanent) (Class BS) (Subclass 801) visa on 8 August 2013 based on her relationship with the sponsor who she said she married in either June or July 2013. At the same time she also applied for a Partner (Temporary) Subclass 820 visa.
On 8 February 2014, the appellant was granted the Subclass 820 visa. The requirements of this subclass of visa included those set out in cl 820.211 and cl 820.221 of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”). Clause 820.211 specified requirements that the appellant was required to meet at the time of making her application for the Subclass 820 visa. Clause 820.221 specified requirements that the appellant was required to meet at the time of the decision. Both of these clauses relevantly required that the appellant be the spouse of her sponsor.
Section 5F of the Migration Act 1958 (Cth) (“the Act”) defines “spouse” for the purpose of the Act. It is unnecessary to set out s 5F or the Regulations made in respect of that provision. It is sufficient to note that to satisfy the requirements of the definition the relationship between the appellant and sponsor must be (inter alia) genuine and continuing.
Clause 801.221 specified the requirements for the Subclass 801 visa which the appellant also sought. Clause 801.221 relevantly provided:
801.221
(1)The applicant meets the requirements of subclause (2) [or] (6) …
(2)An applicant meets the requirements of this subclause if:
(a) the applicant is the holder of a Subclass 820 visa; and
(b)the applicant continues to be sponsored for the grant of the Subclass 820 (Partner) visa by:
(i) the sponsoring partner; or
(ii)the Australian citizen, Australian permanent resident or eligible New Zealand citizen who sponsored the applicant for that visa; and
(c)the applicant is the spouse or de facto partner of the sponsoring partner; and
(d)subject to subclauses (6A) and (7), at least 2 years have passed since the application was made.
…
(6) An applicant meets the requirements of this subclause if:
(a) the applicant is the holder of a Subclass 820 visa; and
(b)the applicant would meet the requirements of subclause (2) … except that the relationship between the applicant and the sponsoring partner has ceased; and
(c)either or both of the following circumstances applies:
(i) either or both of the following:
(A) the applicant;
(B)a dependent child of the sponsoring partner or of the applicant or of both of them;
has suffered family violence committed by the sponsoring partner;
…
On 12 April 2015, the sponsor withdrew his sponsorship of the appellant on the basis that their marriage had broken down, and that the appellant had moved to Sydney by herself after lodging the visa application on 8 August 2013.
On 5 May 2015, the Department invited the appellant to comment on the information it had received from the sponsor. The appellant subsequently provided material to the Department indicating that she and her sponsor ceased living together around November 2013 and that she had suffered family violence.
On 3 August 2015, the Department wrote to the appellant stating that she was granted a visa (the Subclass 820 visa) to which she may not have been entitled had the Department been made aware of the fact that her relationship with her sponsor ended in November 2013.
On 23 August 2015, the appellant responded to the Department. She again stated that she ceased living with her sponsor in November 2013 due to family violence and that they resumed living together in March 2014 for a short time.
On 25 September 2015, the delegate refused the application for the Subclass 801 visa. The delegate found that the appellant had provided false and misleading information to the Department. The delegate was not satisfied that the appellant satisfied the Public Interest Criteria (PIC) 4020(1) as required by cl 801.226.
On 11 October 2015, the appellant applied to the Tribunal for review of the delegate’s decision refusing to grant her a Subclass 801 visa. On 27 September 2016, the appellant attended a Tribunal hearing. In essence, the appellant contended that she ceased living with her sponsor in November 2013 in order to escape family violence.
TRIBUNAL DECISION
On 18 October 2016, the Tribunal affirmed the delegate’s decision not to grant the appellant Subclass 801 visa.
The appellant’s case before the Tribunal was that she would have met the requirements of cl 801.221(2)(c) except that her relationship with her sponsoring partner had ceased in circumstances where she had suffered family violence. In framing her case in this way, the appellant sought to take advantage of cl 801.221(6).
The Tribunal did not consider that the appellant was a credible witness. It found that she provided inconsistent evidence and was evasive in responding to its questions. However, contrary to the delegate’s view, the Tribunal did not consider that the PIC 4020 was relevant to her case.
The Tribunal considered the nature of the relationship between the appellant and the sponsor. The Tribunal found at [56]:
On the information before the Tribunal, the parties separated in November 2013, three months after they married. On the information before the Tribunal, it is not satisfied that the sponsor and the applicant were ever in a spousal relationship. It is not satisfied that the parties had a mutual commitment to a shared life as husband and wife to the exclusion of all others; that their relationship was genuine and continuing and that they did not live separately and apart on a permanent basis. The applicant therefore does not meet the requirements of s.5F of the Act.
The Tribunal was not satisfied that the parties were ever in a genuine and continuing relationship or that other relevant requirements of s 5F of the Act were met. In those circumstances it did not think it necessary to consider whether the appellant had suffered family violence.
THE PRIMARY JUDGE’S DECISION
Before the primary judge the appellant contended that the Tribunal exceeded its jurisdiction by revisiting the question whether the appellant and sponsor were in a genuine relationship at the time she applied for the Subclass 820 visa. In essence, it was submitted that it was not open to the Tribunal to consider whether the appellant and her sponsor were in a genuine spousal relationship in November 2013 because the delegate must have been satisfied that they were or the delegate would not have granted the Subclass 820 visa.
The learned primary judge held that the Tribunal was required by cl 801.221(6) to consider whether the appellant would meet the requirements of cl 801.221(2) except for the cessation of their relationship and the fact that she had suffered family violence. His Honour said at [24]:
The applicant in the case before me claimed she suffered family violence committed by the sponsoring partner; that occurred in November 2013; and it was the family violence that led her to escape from the sponsor. In these circumstances a question the Tribunal was required to consider was whether, “except for” the applicant’s relationship with the spouse having ceased, and the applicant’s having suffered the family violence she claims to have suffered, the applicant and sponsor would be in a spousal relationship. To answer that question the Tribunal was required to consider whether the relationship between the applicant and the sponsor as it existed in November 2013 (being the month in which the applicant claimed she was the victim of family violence committed by the sponsor, and which led her to escape from the sponsor) met the requirements of cl.801.221(2), namely, the applicant was the spouse of the sponsor. That rendered relevant all evidence that related to the nature and extent of the applicant’s relationship with the sponsor, including whether the applicant and sponsor were ever in a spousal relationship. There is nothing in any provision of subclass 801 of Schedule 2 to the Regulation that could be taken to have required the Tribunal to be bound by any fact the delegate who had granted the subclass 820 visa may have been satisfied existed. The Tribunal was entitled, and, in my opinion, it was required, to consider for itself evidence of the relationship between the sponsor and the applicant spanning the entire period of their claimed relationship to determine whether, except for the applicant’s relationship with the sponsor having ceased, and the applicant’s having claimed to have suffered family violence, the applicant would be the spouse of the sponsor.
His Honour’s reasoning was as follows. Because it was necessary for the Tribunal to consider whether the appellant would have been the “spouse” (as defined by s 5F) of her sponsor at the time of its decision except for their relationship having ceased and the appellant having suffered family violence committed by her sponsor, the Tribunal was bound to consider whether the spousal relationship was ever genuine or continuing. Put another way, cl 801.211(6) could only apply if the spousal relationship ceased, and the spousal relationship could only have ceased if it existed to begin with. It followed that the requirements of cl 801.211(6) could not be satisfied if there never was a genuine and continuing relationship.
The appellant challenges the correctness of the primary judge’s reasoning.
CONSIDERATION
For cl 801.221(6) to apply, the appellant had to satisfy the Tribunal that the requirements of cl 801.221(2) would have been met except that the relationship between the appellant and her sponsor had ceased and the appellant has suffered family violence committed by him. She could not satisfy the Tribunal that the spousal relationship ceased if it was not satisfied that the relationship existed in the first place. In my opinion the primary judge’s reasoning was correct.
Counsel for the appellant submitted that the words “the relationship” where appearing in cl 801.221(6)(b) did not refer to the spousal relationship between the applicant and the sponsoring partner (“the applicant is the spouse … of the sponsoring partner”) referred to in cl 801.221(2)(c). However, that construction implies that any relationship between the applicant and sponsor would suffice to meet the requirements of cl 801.221(6)(b). It ignores the context of the words used including that cl 801.221(6) is expressed to operate (when it applies) to dispense with the requirements of cl 801.221(2) (c).
Counsel for the appellant also submitted that the combined operation of various provisions of the Act and Regulations precluded the Minister from granting a Subclass 801 visa on the basis that the Minister was not satisfied that there ever was any genuine spousal relationship in circumstances where he may be taken to have been previously satisfied that such a relationship existed at the time of granting the Subclass 820 visa. Reference was made to s 31, s 45, s 46(1), s 47, s 65, s 82(2) and various regulations relating to both Subclass 820 and Subclass 801 visas. How it was that the combined operations of these provisions produced the result attributed to them by counsel was never properly explained. In my opinion, the submission did not rise any higher than a bare assertion that it was not open to the Minister to be satisfied (even on the basis of quite different evidentiary material) as to the existence of a particular state of affairs at a given time but not be so satisfied at some later point in time.
In my opinion the learned primary judge’s decision was correct for the reasons he gave. The appeal will be dismissed. The appellant must pay the first respondent’s costs of the appeal.
I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Nicholas. Associate:
Dated: 20 November 2019
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