Minister for Immigration v MO

[2018] FCCA 1893

FEDERAL CIRCUIT COURT OF AUSTRALIA

MINISTER FOR IMMIGRATION v MO & ANOR [2018] FCCA 1893

Catchwords:
MIGRATION – Application for a Partner Migrant (Class BC) visa – review of decision of Administrative Appeals Tribunal – relevant family violence – whether the relevant family violence occurred during the course of the relationship or after the relationship had ended - whether the Tribunal properly fulfilled its function reviewing the delegate’s decision – whether the Tribunal properly understood the material before it – jurisdictional error – writs issued.

Legislation:

Migration Act 1958 (Cth), s.5F

Migration Regulations 1994 (Cth), regs.1.22, 1.23, cl.100.221 of sch.2

Applicant: MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent: LINING MO

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2534 of 2017

Judgment of: Judge Smith

Hearing date: 14 May 2018

Date of Last Submission: 14 May 2018

Delivered at: Sydney

Delivered on: 14 May 2018

REPRESENTATION

Counsel for the Applicant: Mr P Knowles

Solicitors for the Applicant: HWL Ebsworth

Counsel for the First Respondent: Mr I Archibald

Solicitors for the Respondents: Direct Solicitors

ORDERS

1. A writ of certiorari issue quashing the decision of the second respondent dated 6 July 2017.

2. A writ of mandamus issue directed to the second respondent requiring it to determine the first respondent’s application for review of the decision of a delegate of the applicant dated 23 June 2016 according to law.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2534 of 2017

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Applicant

And

LINING MO

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Extempore and Revised)

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal dated 6 July 2017. The Tribunal remitted the application for a Partner Migrant (Class BC) visa for reconsideration with the direction that the applicant meet the following criteria for a subclass 100 visa: sub-cl.100.221(4)(b) and (c) of sch.2 to the Migration Regulations 1994 (Cth).

2. Clause 100.221(4) provides that an applicant meets the requirement of this subclause if “the applicant would meet the requirements of subclause (2) or (2A)”, which I interpolate to say that the applicant continues to be a spouse or a de facto spouse of the sponsoring partner, “except that the relationship between the applicant and the sponsoring partner has ceased” and:

   ...

   (c)after the applicant first arrived 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 partner or of the applicant or of both of them,

   has suffered family violence committed by the sponsoring partner;

   ...

3. This application is brought by the Minister for Immigration who argues that the Tribunal did not properly fulfil its function of reviewing the delegate’s decision because it made a finding that, on its face, was required by reg.1.23(14), but in fact could not have been made on a proper understanding of the material before the Tribunal.  The relevant background can be briefly stated. 

4. The first respondent applied for two partner visas:  a Partner Provisional (Class UF) visa, and a Partner Migrant (Class BC) visa.  The application was made on the basis of her relationship with her husband, Trevor Wayne Bottin, who is the first respondent’s sponsor for the purposes of her application.  The first class of visa was granted to the applicant on 26 September 2014.  In the ordinary course, consideration of the application for the second visa would not take place for a further two years, it being a condition of that class and visa that the applicant hold a class UF visa for a period of two years. 

5. Shortly before the expiry of that two year period the Department wrote to the applicant by letter dated 5 February 2016 referring to the applications for the visa and informing her that information provided to the Department indicated that the relationship upon which the application was based had ceased.  It went on to state that it was likely to result in a refusal of the application.  The Department enabled the applicant time to explain the current circumstances and the reason for the breakdown of the relationship. 

6. The applicant replied to that invitation by making an application concerning family violence and lodged various materials with the Department to support that.  The delegate was not satisfied that the applicant had suffered relevant family violence and so referred the matter to an independent expert for an opinion in accordance with reg.1.23(10)(c) of the Regulations.  An expert report was provided, and based upon that expert report, on 23 June 2016 a delegate of the Minister decided that the visa applicant did not satisfy the criteria of the visa and so refused to grant the applicant a visa.  . 

7. The visa applicant then applied to the Tribunal for review of that decision.  On 4 May 2017 the Tribunal held a hearing at which the applicant gave evidence.  The evidence given by the visa applicant to the Tribunal at the hearing is set out in [12] of the Tribunal’s decision. 

8. As explained at [13] of its decision, the Tribunal did not find the visa applicant’s evidence persuasive and, for that reason, was not satisfied that the applicant had suffered family violence.  Accordingly, it too, as the delegate had before it, sought an opinion of an independent expert pursuant to reg.1.23(10)(c) of the Regulations.  That expert provided a report dated 3 July 2017. 

9. In her report the expert noted that the date upon which the visa applicant had claimed that her relationship with her sponsor had ended was 17 December 2015, but also that her evidence was that it was when she left home finally, on 26 January 2016.  Having then set out a summary of the evidence concerning the claims of family violence, the expert (by using the form provided to it by the Tribunal), gave her assessment of whether the visa applicant had suffered family violence. 

10. There were three incidents which were analysed at [13] of the report:  the first concerned an incident in which the visa applicant had described being spoken to in an angry tone, and persistently asking her to leave home.  The expert found that the conduct in that incident did not reasonably cause the visa applicant to reasonably fear or to be reasonably apprehensive about her wellbeing or safety. 

11. The second incident which occurred on 16 November 2015 concerned, broadly speaking, an argument over an iPad which was dealt with in the next box.  The expert formed the view that that incident would not meet the necessary threshold to cause an individual to reasonably fear, or be apprehensive about their wellbeing or safety, and stated her conclusion that the visa applicant’s primary cause of distress was due to the demise of the relationship and the prospect of homelessness.  Therefore, in her opinion, the conduct in the incident did not cause the visa applicant to reasonably fear for, or be reasonably apprehensive about, her wellbeing or safety. 

12. The third incident concerned a period starting from May of 2016 when the visa applicant stated that she had become fearful when the sponsor began sporadically attending her place of work.  In respect of this incident the expert found that that conduct would have caused her to feel intimidated and reasonably fearful, regardless of whether that was intentional by the sponsor, or not.  It was her view that such conduct was indicative of relevant family violence. 

13. The Tribunal’s decision made on 6 July 2017 was not a comprehensive analysis of the material. 

14. Having set out the applicant’s evidence as I have noted at [12], and its conclusion about that evidence at [13] of its reasons, the Tribunal noted at [14] that it was satisfied that the opinion of the expert was authorised by the Regulations in that, amongst other things, it was properly made.  It noted that in accordance with that conclusion under reg.1.23 the Tribunal was “required to take as correct an independent expert’s opinion, properly made”.  The balance of its reasoning is found entirely in [15] which I set out below:

    Where the independent expert’s opinion is that a person has suffered relevant family violence, at least part of the violence that led to that opinion must have occurred while the married or de facto relationship existed. There is ample documentary evidence submitted throughout the application process addressing the various aspects of the relationship. The applicant has been granted the temporary Partner visa, so that her relationship with the sponsor has been assessed as being a genuine one. Having regard to the totality of evidence before it, the Tribunal is satisfied that violence occurred when the relationship existed. Accordingly, the Tribunal finds that the applicant is taken to have suffered family violence committed by the sponsor for r.1.22.

15. The Regulations provide that a visa applicant will still be eligible for a visa even though the relationship had ceased in circumstances where that visa applicant has suffered family violence.  Under reg.1.22 a person has suffered, family violence when he or she is taken under reg.1.23 to have suffered relevant family violence.  In a case such as this, where there was a non-judicially determined claim of family violence, reg.1.23(10) and following, apply. I have already referred to reg.1.23(10) however I set out the following further relevant provisions:

    (11)The alleged victim is taken to have suffered family violence, and the alleged perpetrator is taken to have committed family violence, if:

    (a) an application for a visa includes a non‑judicially determined claim of family violence; and

    (b)the Minister is satisfied under paragraph (10)(b) that the alleged victim has suffered relevant family violence.

    (12)For subregulation (11), the Minister must be satisfied that the relevant family violence, or part of the relevant family violence, occurred while the married relationship or de facto relationship existed between the alleged perpetrator and the spouse or de facto partner of the alleged perpetrator.

    (13)The alleged victim is taken to have suffered family violence, and the alleged perpetrator is taken to have committed family violence, if:

    (a)an application for a visa includes a non‑judicially determined claim of family violence; and

    (b)the Minister is required by subparagraph (10)(c)(ii) to take as correct an opinion of an independent expert that the alleged victim has suffered relevant family violence.

    (14)For subregulation (13), the violence, or part of the violence, that led to the independent expert having the opinion that the alleged victim has suffered relevant family violence must have occurred while the married relationship or de facto relationship existed between the alleged perpetrator and the spouse or de facto partner of the alleged perpetrator.

16. It is important to note a number of matters about these provisions: first, the regulation concerning the definition of relevant family violence and the opinion to be expressed by the expert in accordance with reg.1.23(10) has no temporal aspect, except as noted by the applicant; that is, to have occurred after the visa applicant has arrived in Australia. 

17. Regulation 1.23(13) is the central provision which, bearing in mind the effect of reg.1.22, provides that the alleged victim “is taken to have suffered family violence” if there is “a non-judicially determined claim of family violence” as here and “the Minister is required by sub-par.(10)(c)(ii) to take as correct an opinion”.

18. However, that is qualified by reg.1.23(14). It is there that the temporal nexus between the suffering of relevant family violence and the relationship is established. On a plain reading of that provision the only relevant family violence which can lead to the satisfaction of the criterion in cl.100.221(4) is that which was suffered:

    (14)…while the married relationship or de facto relationship existed between the alleged perpetrator and the spouse or de facto partner of the alleged perpetrator.

19. In this case, the alleged perpetrator was the sponsoring spouse.  The Minister argues that [15] of the Tribunal’s reasons do not satisfactorily address that question.  In his submissions the Minister pointed to the only two apparent pieces of reasoning in [15]:  the first, in the second sentence, that “[t]here is ample documentary evidence submitted throughout the application process addressing the various aspects of the relationship” and the second “[t]he applicant has been granted the temporary Partner visa, so that her relationship with the sponsor has been assessed as being a genuine one”.

20. That reasoning apparently supports the conclusion which follows in the next sentence, namely “[h]aving regard to the totality of evidence before it, the Tribunal is satisfied that violence occurred when the relationship existed”. The difficulty with that reasoning, on its face, is that the first two sentences I have highlighted only go to the existence of a genuine relationship.  It does not go to the timing of the cessation of it or the timing of the violence.  At first glance, then, the conclusion in the second last sentence of [15] appears to have been made with some gap in the reasoning by the Tribunal or some other error. 

21. The first respondent argues, firstly, that the conclusion in the second last sentence of [15] was a factual finding which, on the face of the reasons themselves, was made after considering “the totality of the evidence before” the Tribunal. Consequently, as factual findings are within the exclusive domain of the Tribunal, unless affected themselves by some jurisdictional error, then there is no error in the decision.  Secondly, it is submitted by the first respondent that cl.1.23(14) admits the possibility of family violence suffering during a potential breakdown of a relationship, but while the breakdown of the relationship has not completed or while there might be some ongoing resolution of that relationship.

22. That is a possible interpretation of reg.1.23(14) because at the heart of the issue is the definition of a spouse for the purposes of cl.100.221. That definition is found in s.5F of the Migration Act 1958 (Cth) which, by reference to sub-s.5F(2)(c)(ii), can include circumstances where the parties to a relationship are not at presently living together but that that circumstance is not necessarily ongoing. For that reason, I accept the possibility as argued by the first respondent, that reg.1.23(14) could yet be satisfied in circumstances where there is an apparent breakdown in a relationship but it is not yet permanent.

23. However, the evidence before the Tribunal was not too effect that the relationship had the possibility of reforming.  As I have noted earlier, the expert’s report states that the applicant claimed the relationship had either ended on 17 December 2015 or later when she had, in fact, finally left the marital home on 26 January 2016.  There was no suggestion in any of the other material before the Tribunal that there was anything of an ongoing relationship. 

24. The applicant’s claims were that she was in an abusive relationship which meant that she was forced to leave the home, and that she did so on 26 January 2016.  Indeed, that is what is recorded at [12] of the Tribunal’s own reasoning.  The Tribunal appears not to have made a finding about that.  One can only infer that it must have accepted that. 

25. Another possibility is that the Tribunal simply misunderstood the expert’s report.  It did not set out what the expert found and might have understood the expert to have found that each of the incidents constituted relevant family violence, and therefore it was not necessary for it to do anything other than to determine whether there had been a genuine relationship. 

26. My reading of [15] is that the only question that the Tribunal asked itself was whether, at the time prior to the relationship ceasing, there had been a genuine relationship.  Even though the Tribunal in form, and in so many words, stated that the violence had occurred when the relationship existed, it never in truth answered the question posed by reg.1.23(14) of the Regulations.  If it did or purported to do so, it did so without any evidence and for that reason, the Tribunal constructively failed to exercise its jurisdiction and its decision ought to be set aside. 

27. That would ordinarily mean, on my understanding of reg.1.23(10) of the Regulations, that when the matter is to be considered again by the Tribunal it must consider for itself, again, whether the visa applicant has suffered relevant family violence.  If it is not so satisfied, then it must refer the matter again to an independent expert, under sub-reg.1.23(10)(c). 

28. For that reason, it is not necessary to come to a concluded view about another matter that arose during the hearing: namely, whether or not the expert to which the Tribunal had referred the matter properly formed the view required of it by sub-reg.1.23(10)(c).  The question arose because of the last sentences of the opinion expressed in respect of the first two incidents: namely, that the visa applicant’s predominant fear was of the relationship’s cessation and having to leave home; and that the primary cause of distress was due to the demise of the relationship and the prospect of homelessness. 

29. Although the matter was not fully argued before me, there is some question over whether those matters are determinative of the opinion or can legally be determinative of the opinion to be formed under sub-reg.1.23(10)(c) of the Regulations.  However, as I have said, I do not need to resolve that issue. 

30. The Minister, recognising the unusual nature of this application, namely, that he is the applicant for judicial review of the Tribunal’s decision, did not seek costs.

Conclusion

1. The Tribunal constructively failed to exercise its jurisdiction and its decision must be set aside.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Smith

Date:     12 July 2018