Minister for Immigration, Citizenship and Multicultural Affairs v Singh

Case •

[2023] FedCFamC2G 405

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Minister for Immigration, Citizenship and Multicultural Affairs v Singh [2023] FedCFamC2G 405  

File number: MLG 1307 of 2022
Judgment of: JUDGE BLAKE
Date of judgment: 19 May 2023
Catchwords: MIGRATION – Judicial review – whether Administrative Appeals Tribunal (‘Tribunal’) failed to make findings pursuant to regulation 100.221(4) of the Migration Regulations 1994 (Cth) that the visa applicant had been in a spousal relationship prior to the cessation of the relationship - whether the Tribunal failed to make a finding that the visa applicant had suffered family violence – HELD that the Tribunal failed to make relevant findings - matter remitted to Tribunal.
Legislation:

Migration Act 1958 (Cth) ss 5F, 5F(2), 5F(3), 349, 349(2)(c).

Migration Regulations 1994 (Cth) regs 1.15A, 1.23, 1.23(9), 1.23(9)(b), 1.24, 4.15(1), Division 1.5, Schedule 2, cl 100.221.

Cases cited: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Gupta [2022] FCAFC 51
Division: Division 2 General Federal Law
Number of paragraphs: 27
Date of hearing: 1 May 2023
Place: Melbourne
Counsel for the Applicant: Mr Johnson
Solicitor for the Applicant: Minter Ellison Lawyers
Counsel for the Respondents: Mr Aleksov
Solicitor for the Respondents: Carina Ford Immigration Lawyers

ORDERS

MLG 1307 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

Applicant
AND:

SUKHJINDER SINGH

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

order made by:

JUDGE BLAKE

DATE OF ORDER:

19 may 2023

THE COURT ORDERS THAT:

1.The name of the Applicant be amended to ‘Minister for Immigration, Citizenship and Multicultural Affairs’. 

2.The decision of the Administrative Appeals Tribunal made on 2 May 2022 in matter number 1922936 be set aside.

3.The matter be remitted to the Administrative Appeals Tribunal for determination according to law.

4.The First Respondent pay the Minister’s costs of the proceeding fixed in the sum 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 BLAKE:

  1. This is an application by the Minister to review a decision made by the Administrative Appeals Tribunal (‘Tribunal’) on 2 May 2022.

  2. For the reasons that follow, I have decided to allow the application for review and remit the matter to the Tribunal.

    BACKGROUND

  3. The background is conveniently set out in the Minister’s submissions as noted by the First Respondent. The First Respondent took no issue with the Minister’s summary of the background. What follows is taken directly from paragraphs [2] – [6] of the Minister’s written submissions.

    2.The first respondent is a citizen of India. On 15 March 2017 he applied off-shore for a Partner (Provisional)(Class UF) and a Partner (Migrant)(Class BC) visa on the basis of his relationship with wife, Sarabjeet Kaur, an Australian citizen: CB 17. On 1 December 2017 a delegate of the Minister granted the first respondent a provisional partner visa: CB 127.

    3.On 3 October 2018 the Department invited the first respondent to comment on information it had received that his relationship with Ms Kaur had ended: CB 132. On 17 October 2018 the first respondent replied to the Department’s invitation claiming that he had been the victim of family violence: CB 165. On 15 November 2018 the Department requested more information from the first respondent about his family violence claim: CB 177. Of the information sought, the Department requested “evidence that you were the spouse or de factor [sic] partner of your sponsor prior to the cessation of your relationship on 19 April 2018”: CB 181. The first respondent provided additional information: CB 183.

    4. On 25 February 2019 the Department requested further information from the first respondent on the basis that “the documentary evidence submitted to date does not currently meet the requirements under the family violence provisions of the Migration Regulations 1994 …and further information must be provided to assess your family violence claim”: CB 344. The first respondent provided the additional information: CB 355. On 15 May 2019 the Department sought yet further information due to the deficiency in the documents provided by the first respondent in support of his family violence claim: CB 386.

    5. On 1 August 2019 a delegate of the Minister refused to grant the first respondent a permanent partner visa: CB 400. The delegate was not satisfied that the first respondent and Ms Kaur were in a genuine and continuing spousal relationship at the time it was claimed the relationship had ended. On 18 August 2019 the first respondent applied to the Tribunal for review of the delegate’s decision: CB 428.

    6. The Tribunal decided to remit the matter to the Minister on the basis that the first respondent met the requirements of regulation 1.24 for the making of a non-judicially determined claim of family violence under regulation 1.23: [5]. On this basis – that is, that the first respondent had made such a claim for family violence that met the evidential requirements of regulation 1.24, the Tribunal decided that the first respondent had “satisfied” the “alternative criteria” for the grant of the visa. The Tribunal remitted the decision with a “finding” that the first respondent met “clause 100.221(9)(b)(i) and (c)(i) and (ii)”.

  4. The Minister filed an Application seeking review of the Tribunal’s decision in this Court on 14 June 2022. An Amended Application (‘Application’) was filed by the Minister on 23 December 2022.

  5. The Minister filed written submissions on 3 April 2023. The Minister also prepared and filed a Court Book. The First Respondent filed written submissions on 17 April 2023.

  6. Section 5F of the Migration Act 1958 (Cth) (‘Act’) defines the term ‘spouse’ for the purposes of the Act. Subsection (2) sets out various criteria for when persons are to be regarded as being in a ‘married relationship’. Subsection (3) provides that the regulations to the Act may make provisions in relation to the determination of whether one or more of the criteria specified in subsection (2) exist.

  7. Regulation 1.15A of the Migration Regulations 1994 (Cth) (‘Regulations’) sets out arrangements for the purpose of determining whether the conditions in subsection 5F(2) of the Act exist.

  8. An applicant for a (Subclass 100) Partner visa must meet the requirements of clause 100.221 of the Regulations. Clause 100.221(1) provides that an applicant for a visa must meet the requirements of subclauses (2), (2A), (3), (4) or (4A). A requirement of each of subclauses (2) and (2A) is that the visa applicant ‘is the spouse or de facto partner of the sponsoring partner’. An applicant for a visa will meet the requirements of subclause (4) if, among other things, the applicant would meet the requirements of subclauses (2) or (2A) (except that the relationship between the applicant and the sponsoring partner has ceased), and the applicant or a member of the family unit of the sponsoring partner or of the applicant or of both of them, has suffered family violence committed by the sponsoring partner.

  9. Division 1.5 of the Regulations sets out special provisions relating to family violence. Regulation 1.23 sets out when a person is taken to have suffered or committed family violence. Relevantly, 1.23(9) describes when an application for a visa is taken to include a ‘non-judicially determined claim of family violence’.

  10. Section 349 of the Act sets out the powers of the Tribunal when conducting a review of Part 5-reviewable decisions. It relevantly provides as follows:

    (1)The Tribunal may, for the purposes of the review of a Part 5‑reviewable decision, exercise all the powers and discretions that are conferred by this Act on the person who made the decision.

    (2)      The Tribunal may:

    (a)       affirm the decision; or

    (b)       vary the decision; or

    (c)if the decision relates to a prescribed matter—remit the matter for reconsideration in accordance with such directions or recommendations of the Tribunal as are permitted by the regulations; or

    (d)       set the decision aside and substitute a new decision; or

    (e)if the applicant fails to appear—exercise a power under section 362B in relation to the dismissal or reinstatement of an application. 

  11. Finally, and relevantly, regulation 4.15(1) of the Regulations sets out the Tribunal’s power to give directions for subsection 349(2)(c) of the Act as follows:

    (1)For paragraph 349(2)(c) of the Act (which deals with the Tribunal’s power to remit):

    (a)an application for a visa or entry permit made on or after 19 December 1989 is a prescribed matter; and

    (b)subject to subregulation (4), a permissible direction is that the applicant must be taken to have satisfied a specified criterion for the visa or entry permit.

    THE DECISION OF THE TRIBUNAL

  12. The reasons of the Tribunal are brief.  Paragraphs [1]-[4] largely set out the background to the matter save for the following:

    (a)in paragraph [3], the Tribunal states ‘In this case, the consistent and reliable evidence from the applicant and sponsor (including post-relationship) is that they willingly and knowingly committed to an arranged marriage which ended some [sic] shortly after it began’;

    (b)in paragraph [4], the Tribunal stated ‘The applicant has provided the necessary documents to substantiate a ‘valid’ ‘non-judicially determined claim of having suffered relevant family violence perpetrated by his sponsor under the Act and the Regulations’.

  13. Then, at paragraph [5], the Tribunal states as follows:

    [5]Given the above, the applicant meets the requirements of r.1.24. As such, a non-judicially determined claim of family violence has been made under r.1.23. As the applicant has satisfied the ‘alternative’ criteria for the grant of the visa (absent the continuing relationship) the Tribunal remits the applicant’s Subclass 100 visa application to the Minister with the finding the applicant meets clause 100.221(9)(b)(i) and (c)(i) and (ii).

    THE APPLICATION

  14. The Minister advanced two Grounds for Review. The first Ground of Review in the Application is:

    1.The second respondent erred by misunderstanding and/or misapplying the law, or constructively failing to exercise its jurisdiction, in relation to the first respondent's satisfaction of subclause 100.221(4) of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).

    Particulars

    a.The first respondent applied for a Partner (Provisional) (Class UF) (Subclass 309) and Partner (Migrant) (Class BC) (Subclass 100) visa on 15 March 2017.

    b.A delegate of the applicant refused the first respondent’s visa Subclass 100 visa application on 1 August 2019.

    c.The second respondent purported to consider the first respondent's application against subclause 100.221(4) of Schedule 2 to the Regulations

    d.Inter alia, subclause 100.221(4) of Schedule 2 to the Regulations requires that the first respondent ' … would meet the requirements of subclause (2) or (2A) except that the relationship between the applicant and the sponsoring partner has ceased' (subclause 100.221(4)(b)).

    e.Satisfaction of subclause 100.221(2) or (2A) of Schedule 2 to the Regulations requires that a decision-maker determine that the visa applicant (here the first respondent) 'is the spouse or de facto partner of the sponsoring partner': see subclauses 100.221(2)(b) and 100.221(2A)(b).

    f.For the second respondent to be in a position to determine that a relationship meeting the requirements of subclause 100.221(2)(b) or 100.221(2A)(b) has ceased for the purpose of subclause 100.221(4)(b), it was necessary that the second respondent must first be satisfied that such a relationship existed: see Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Gupta [2022] FCAFC 51 at [48].

    g.The second respondent failed to make a lawful finding as to whether the first respondent was the spouse or de facto partner of the sponsoring partner, constituting jurisdictional error.

    h.Further, the second respondent erred in its conclusion that the "applicant has satisfied the 'alternative' criteria for the grant of the visa (absent the continuing relationship)"([5]) in that the second respondent failed to consider, or to make any findings about, whether the alleged victim has suffered relevant family violence: subregulation 1.23(10). 

  15. The second Ground of Review in the Application is:

    2. Further, or in the alternative, to the first ground, the second respondent fell into jurisdictional error in having made a decision in which it purported to remit the matter to the appellant with a “finding” that the first respondent meets subparagraphs 100.221(9)(b)(i) and (c)(i) and (ii), in that:

    b.the second respondent’s decision to remit was based upon a conclusion that the first respondent meets subparagraphs 100.221(9)(b)(i) and (c)(i) and (ii), which provisions do not exist; and/or

    c.having failed—as particularised in the first ground, particular (h)—to have considered, or to have made any findings about, whether the first respondent had suffered family violence, or otherwise to have identified the “alternative criteria” it found the first respondent had satisfied, the Tribunal had no power to remit the matter to the appellant: see paragraph 349(2)(c) of the Migration Act 1958 (Cth) (the Act). 

    Particulars to (b)

    i. The second respondent has power under paragraph 349(2)(c) of the Act "if the decision relates to a prescribed matter" to "remit the matter for reconsideration in accordance with such directions or recommendations of the Tribunal as are permitted by the regulations".

    ii.The present matter involved a "prescribed matter", being an application for a visa made on or after 19 December 1989: subregulation 4.15(1)(a).

    iii.However, in purporting to exercise that power, the second respondent may only make certain directions or recommendations, either in relation to prescribed criteria for the relevant class of the visa or in relation to the requiring of a security: subregulation 4.15(1)–(4).

    ivThe second respondent failed to identify and failed to make any findings as to any prescribed criteria for the grant of the subclass 100 visa.

  16. There is a live and active disagreement between the parties as to what the Tribunal has done in paragraph [5] of its reasons. It is easy to see why. The reference to ‘‘alternative’ criteria’ in paragraph [5] is somewhat confusing. It does not reflect the language of the statute. Moreover, there is no regulation ‘100.221(9)(b)(i) and (c)(i) and (ii)’ in the Regulations. On this latter point the Applicant submitted that this reference was clearly a slip, and that the Tribunal intended to refer to regulation ‘1.23(9)(b)(i) and (c)(i) and (ii)’. The Minister submitted that it should not necessarily be assumed that the reference is a slip, and stated it might be indicative of broader error.

  17. It is apparent from the Minister’s submissions that the Minister considers the Tribunal made a finding that regulation 100.221(4) was satisfied.  The Minister specifically complains that the finding was reached without the Tribunal making a finding that the First Respondent ‘is the spouse or de facto partner of the sponsoring partner’ which is an essential anterior finding to be made before concluding that regulation 100.221(4) is satisfied.

  18. The First Respondent met this submission by proffering a different construction of what the Tribunal did in paragraph [5]. The First Respondent submitted that the Tribunal did not make any finding that regulation 100.221(4) was satisfied. That submission was put in the following way during the oral hearing:

    The bit that seems to have got the Department confused and concerned, and we understand why, is the reference to alternative criterion. Now, here is another a caution I need to urge upon your Honour, which is not to allow government policy or practice and the language that those concepts are, you know, engaged in to trump the statute. The Department does refer to clause 2214 as the alternative criterion. In the profession, I concede, that is what it is called. That is not what the statute says. The expression, “Alternative criteria”, did not exist in this part of the statute. When the Tribunal said, “Alternative criteria”, it misspoke.

    It has not made any decision, it has not exercised power in a way, which binds the Department to accept that the applicant has met clause 100.221 and sub (4), and so the applicant does not start the remitted case before the Department with the benefit of that finding. All the applicant gets from this decision, because all that the Tribunal has done is: set aside the Delegate’s decision; expunges its legal effect; send the case back to the Department and say, “This person has met regs 123(9)(b)”, etcetera, which is this person has supplied the required pieces of evidence for the relevant legislative instrument, nothing more. That is not all that much use, because these things are objectively assessed.

  19. On the basis of this submission, the First Respondent contended that the Minister’s Application should be dismissed, and that the Court should give reasons which bind the parties to prevent them from asserting that the reasons of the Tribunal mean the criteria under regulation 100.221(4) is satisfied.

  20. I confess to some initial attraction to the construction of paragraph [5] of the Tribunal’s reasons proffered by Mr Aleksov, Counsel for the First Respondent.  One can see how paragraph [5] of the Tribunal’s reasons might be read in that way.  Regrettably, however, paragraph [5] of the Tribunal’s reasons cannot be construed in the manner contended for by the First Respondent.  To understand why, it is necessary to have regard to regulation 1.23(9). I set it out in full below.

    (9)For these Regulations, an application for a visa is taken to include a non‑judicially determined claim of family violence if:

    (a)the applicant seeks to satisfy a prescribed criterion that the applicant, or another person mentioned in the criterion, has suffered family violence; and

    (b)the alleged victim is:

    (i)        a spouse or de facto partner of the alleged perpetrator; or

    (ii)       a dependent child of:

    (A)      the alleged perpetrator; or

    (B)the spouse or de facto partner of the alleged perpetrator; or

    (C)both the alleged perpetrator and his or her spouse or de facto partner; or

    (iii)a member of the family unit of a spouse or de facto partner of the alleged perpetrator (being a member of the family unit who has made a combined application for a visa with the spouse or de facto partner); and

    (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.

  21. It can be immediately seen that in order for the Tribunal to conclude, as submitted by Mr Alexsov, that the person ‘has met regs 123(9)(b)’, the Tribunal needs to be satisfied (among other things) that ‘the alleged victim is… a spouse or de facto partner of the alleged perpetrator’ (subclause 1.23(9)(b)(i)). It is not correct to say that if the view of paragraph [5] proffered by the First Respondent is accepted, ‘the applicant does not start the remitted case before the Department with the benefit’ of a finding that the Applicant has met clause 100.221(4). To the contrary, the First Respondent would start the remitted matter with a finding that he ‘is a spouse or de facto partner of the alleged perpetrator’ for the purposes of clause 100.221(4) because, that finding of fact is also an essential component of clause 1.23(9)(b). Acceptance of the First Respondent’s construction of paragraph [5] of the Tribunal’s reasons therefore does not avoid, but rather points to the same problem about which the Minister complains: the failure of the Tribunal to make any finding that a relationship of spouse or de facto partner existed.

  1. In my view, paragraph [5] of the Tribunal’s reasons should be understood in the following way. First, the Tribunal was satisfied that evidence of the type contemplated by regulation 1.24 had been submitted. Second, subject to one matter I will return to, it was satisfied that a ‘non-judicially determined claim’ of family violence had been made under regulation 1.23. Third, when the Tribunal stated ‘the applicant has satisfied the ‘alternative’ criteria for the grant of the visa (absent the continuing relationship)’, the Tribunal was referring to its satisfaction of the criteria set out in clause 100.221(4). Subparagraph (4) of clause 100.221 is the ‘alternative’ to subclauses (2) and (2A) because it deals with the situation where the relationship has ended. The problem with the Tribunal’s approach, as pointed out by the Minister, is that the Tribunal did not make any finding that a genuine spousal relationship existed prior to the cessation of that relationship. This is not the correct approach to take when considering the application of regulation 100.221(4): see Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Gupta [2022] FCAFC 51 at [43], [48]. The Tribunal needed to address whether the First Respondent had been in a relationship that met the requirements of section 5F of the Act and regulation 1.15A.

  2. There is some ambiguity about the Tribunal’s statement that it was satisfied that a ‘non-judicially determined claim of family violence [had] been made under r.1.23’. That might be read, as the First Respondent contended, as the Tribunal being satisfied that the First Respondent ‘has met regs 123(9)(b)’. For the reasons I have given above, however, the sentence should not be read that way because the Tribunal did not, inter alia, make any finding under subclause 1.23(9)(b)(i) that the First Respondent is the spouse or de facto partner of the sponsoring partner. The other difficulty with construing the reasons as the Tribunal being satisfied that the requirements under regulation 1.23(9) have been satisfied, is that the Tribunal did not make any express finding nor address whether the First Respondent had suffered family violence.  It needed to make such a finding. 

  3. For all of the above reasons, Ground one of the Grounds of Review has been made out.

  4. Given the conclusion above, it is unnecessary to consider the Minister’s alternative Ground two in the Grounds of Review. Had I been required to do so, however, I would have accepted the Minister’s submissions in respect of Ground two.

  5. Orders should issue that the decision of the Tribunal be quashed, and a writ of mandamus ought be directed to the Tribunal requiring it to determine the application according to law.

  6. The Minister has been entirely successful and seeks costs. I will order costs in the scale in the amount of $8,371.30.

I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Blake.

Associate:

Dated:       19 May 2023

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