FEDERAL COURT OF AUSTRALIA
Muliyana v Minister for Immigration & Citizenship [2010] FCAFC 24
Citation: Muliyana v Minister for Immigration and Citizenship [2010] FCAFC 24 Appeal from: Muliyana v Minister for Immigration & Anor [2009] FMCA 691 Parties: PRERAK HIMANSHU MULIYANA v MINISTER FOR IMMIGRATION AND CITIZENSHIP and MIGRATION REVIEW TRIBUNAL File number: NSD 921 of 2009 Judges: MOORE, SIOPIS AND EDMONDS JJ Date of judgment: 15 March 2010 Supplementary judgment: 24 March 2010 Further Supplementary judgment: 12 April 2010 Catchwords: MIGRATION – visa – partner visa – domestic violence – whether ‘domestic violence’ in cl 100.221(4)(c) of Sch 2 of the Migration Regulations 1994 (Cth) requires the domestic violence to occur before the relationship between the applicant and the sponsoring spouse ceased.
Held: There is no requirement that the domestic violence occur before the spousal relationship ceased.
Legislation: Migration Act 1958 (Cth) s 65
Migration Regulations 1994 (Cth) Sch 2, cl 100.221(4)(c), reg 1.15A
Migration Regulations (Amendment) 1996 (Cth)
Migration Amendment Regulations (No 13) 2007 (Cth)Cases cited: Alin v Minister for Immigration & Multicultural Affairs [2002] FCA 979 overruled
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 applied
Ibrahim v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1279 referred to
Shaikh v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 174 referred to
Sok v Minister for Immigration & Citizenship [2007] FMCA 1525 overruledDate of hearing: 12 November 2009 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 39 Counsel for the Appellant: Mr RF Margo SC with Mr B Zipser Counsel for the First Respondent: Mr G Johnson Solicitor for the First Respondent: DLA Phillips Fox
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 921 of 2009
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: PRERAK HIMANSHU MULIYANA
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentMIGRATION REVIEW TRIBUNAL
Second Respondent
JUDGES:
MOORE, SIOPIS AND EDMONDS JJ
DATE OF ORDER:
12 APRIL 2010
WHERE MADE:
SYDNEY
FURTHER SUPPLEMENTARY JUDGMENT
THE COURT ORDERS (IN ADDITION TO ORDER 1 OF 15 MARCH 2010) THAT:
The orders of 24 March 2010 be vacated.
The orders of the Federal Magistrates Court made on 5 August 2009 be set aside and, in lieu thereof:
(1)A writ in the nature of certiorari be issued to quash the decision of the Second Respondent, MRT reference 071933300 dated 9 February 2009.
(2)A writ in the nature of mandamus be issued directing the Second Respondent to reconsider and determine the matter according to law.
(3)The First Respondent pay the costs of the Applicant before the Federal Magistrates Court as taxed or agreed.
Order 2 be renumbered order 3.
I certify that the preceding three (3) numbered paragraphs are a true copy of the Further Supplementary Judgment herein of the Honourable Justices Moore, Siopis and Edmonds. Associate:
Dated: 12 April 2010
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 921 of…
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CaseChat Overview and Summary
In the case of Muliyana v MIAC, the appellant challenged the decision of the Migration Review Tribunal which found that she was ineligible for a Partner (Migrant) (Class BC) visa as she did not satisfy the criteria set out in cl 100.221(4)(c) of Schedule 2 of the Migration Regulations 1994 (Cth) (the Regulations). The central issue in the appeal was the proper interpretation of cl 100.221(4)(c) of the Regulations, specifically whether it requires that the 'domestic violence' to which it refers must have occurred before the relationship between the applicant and the sponsoring spouse ceased.
The appellant had married her husband in India in 2005, and he subsequently sponsored her for a visa to join him in Australia. However, their relationship deteriorated quickly after her arrival in Australia, with the husband informing the Department of Immigration that their relationship was not continuing shortly after her arrival. The Tribunal found that the appellant did not meet the criteria for the visa because the domestic violence perpetrated by her husband against her did not occur during the currency of their spousal relationship.
The Federal Magistrates Court had earlier rejected the appellant’s application for judicial review, finding in favour of the Tribunal’s interpretation of the Regulations. The appellant appealed to the court, arguing that the requirement of cl 100.221(4)(c) was not satisfied because the domestic violence did not need to occur during the currency of the relationship. The Minister for Immigration and Citizenship supported the Tribunal's decision, contending that the domestic violence must have occurred during the relationship for the visa to be granted.
The court allowed the appeal and held that there is no requirement in cl 100.221(4)(c) of the Regulations that the domestic violence must occur before the spousal relationship ceases. The court reasoned that the policy behind the provision is to enable a person in circumstances of domestic violence to leave an abusive relationship without compromising their immigration status, and this policy is not contingent on the timing of the domestic violence relative to the cessation of the relationship. As a result, the appeal was allowed, and the first respondent was ordered to pay the appellant’s costs.
The appellant had married her husband in India in 2005, and he subsequently sponsored her for a visa to join him in Australia. However, their relationship deteriorated quickly after her arrival in Australia, with the husband informing the Department of Immigration that their relationship was not continuing shortly after her arrival. The Tribunal found that the appellant did not meet the criteria for the visa because the domestic violence perpetrated by her husband against her did not occur during the currency of their spousal relationship.
The Federal Magistrates Court had earlier rejected the appellant’s application for judicial review, finding in favour of the Tribunal’s interpretation of the Regulations. The appellant appealed to the court, arguing that the requirement of cl 100.221(4)(c) was not satisfied because the domestic violence did not need to occur during the currency of the relationship. The Minister for Immigration and Citizenship supported the Tribunal's decision, contending that the domestic violence must have occurred during the relationship for the visa to be granted.
The court allowed the appeal and held that there is no requirement in cl 100.221(4)(c) of the Regulations that the domestic violence must occur before the spousal relationship ceases. The court reasoned that the policy behind the provision is to enable a person in circumstances of domestic violence to leave an abusive relationship without compromising their immigration status, and this policy is not contingent on the timing of the domestic violence relative to the cessation of the relationship. As a result, the appeal was allowed, and the first respondent was ordered to pay the appellant’s costs.
Orders
Orders of the court
1. The appeal be allowed.
2. The first respondent pay the appellant’s costs.
Note:
Background
Background to the litigation
The issue presented by the appeal concerns the proper construction of cl 100.221(4)(c) of Sch 2 of the Migration Regulations 1994 (Cth) (‘the Regulations’), namely, whether it is to be read as requiring the ‘domestic violence’ to which it refers, to have occurred before the relationship between the applicant and the sponsoring spouse ceased, the cessation of that relationship being the immediately preceding requirement in cl 100.221(4)(b).BACKGROUND FACTS The facts established before the Tribunal and accepted in the court below are not in dispute. The appellant married her husband, Himanshu Pravinchandra Muliyana, in India on 25 January 2005. The marriage had been arranged by their parents and was according to Hindu custom. The husband had previously acquired permanent residence in Australia. Following the marriage he returned to his employment in Melbourne in February 2005. While waiting for permission to join him, the appellant completed her studies and started work as a teacher. But her parents-in-law required her to give up her employment, which she did in November 2005, and to reside with them, which she did for a period from February 2006. Her parents-in-law were very controlling, dictating whom she saw and what she did. They were critical of her and thought that her performance, e.g. her cooking, was not up to their standards. They caused problems between her and her husband by reporting about her to him in Melbourne. Her husband however encouraged her to apply for a visa so they could have a fresh start in Australia. The appellant applied for a Partner (Migrant) (Class BC) visa on 14 October 2005, with her husband as sponsoring spouse. The decision to grant her a temporary spouse visa was made on 23 September 2006. She entered Australia on 26 November 2006 and was reunited with her husband. They shared accommodation in Melbourne, had a sexual relationship, went shopping and watched cricket. The appellant’s evidence was that they had a nice relationship during this time. Unknown to the appellant, however, on 5 December 2006, within days after her arrival in Australia, her husband informed the Department of Immigration that their relationship ‘was not continuing’ or ‘was not continuing at the moment’ and that he neither wanted her to come to Australia nor to support her in Australia. On 31 December 2006, the appellant travelled with her husband on a visit to India. In relation to the period 31 December 2006 to 5 February 2007, the Tribunal recorded the appellant’s evidence as follows:‘About one week prior to departing Australia on 31 December 2006, the sponsor had suggested to the applicant that they return home to sort out the family interference. By family interference, the applicant means that they wanted to sort out the sponsor’s family’s dissatisfaction regarding whether the applicant was fulfilling their expectations ... When they arrived in India the sponsor took the applicant to her parent’s home. They had dinner together and the sponsor stayed the night. The next morning, the sponsor’s brother came and took the sponsor to his parent’s home. The applicant and the sponsor spoke on the phone a few times and the sponsor told the applicant that they would meet soon once he had made arrangements for the families to communicate. They spoke until Thursday but on Friday, when the applicant phoned the sponsor, she could not locate him. She then rang the sponsor’s grandfather who told her that the sponsor had returned to Australia ... The applicant had no idea at this time that the sponsor was unhappy with the marriage.’
Evidence
Evidence Before The Court
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Decision
Reasons for decision
For that reason, the Tribunal found that the appellant did not meet the criteria for grant of a Partner (Migrant) (Class BC) visa and affirmed the decision under review. THE JUDGMENT BELOW The appellant applied to the Federal Magistrates Court on 9 March 2009 for judicial review of the Tribunal’s decision. The learned Federal Magistrate disagreed with the Tribunal’s interpretation of cl 100.221(4)(c) and gave detailed reasons for his contrary view, which the appellant embraced by way of submission on the hearing of the appeal. His Honour said that if he had been free to apply his own opinion, he would have held that, on the correct construction of the Regulations, and upon the findings of fact made by the Tribunal, the appellant satisfied the criteria in cl 100.221(4) of Sch 2 (at [29]). Although not disposed to follow Sok v Minister for Immigration & Citizenship [2007] FMCA 1525 (the decision of Riley FM on which the Tribunal had relied), he came to the view that even if he was not bound by what Sundberg J said in Alin v Minister for Immigration & Multicultural Affairs [2002] FCA 979 at [14], namely, that a reason for dismissing the application in that case was because ‘… the parties’ relationship came to an end before the alleged violence occurred’, judicial comity required him to follow it. Consequently, his Honour dismissed the appellant’s application.THE MINISTER’S SUBMISSIONS ON APPEAL In his submissions on the hearing of the appeal, the Minister sought to support the conclusion of the Tribunal that because the domestic violence perpetrated by the sponsoring spouse against the appellant did not occur during the currency of their spousal relationship, the requirement of cl 100.221(4)(c) for the grant of the visa was not satisfied. In this respect, great reliance was placed upon what was said by Riley FM in Sok at [37] – [39]:‘37. The express words of clause 100.221(4)(c) of Schedule 2 of the Regulations simply require, relevantly, that after the applicant first entered Australia, he suffered domestic violence committed by his sponsor. The provision does not state that the domestic violence needed to have occurred during the currency of the spousal relationship or that the domestic violence needed to have caused or contributed to the cessation of the spousal relationship.38. However, there is an obvious policy behind the provisions which permit a person in circumstances of domestic violence to obtain a permanent partner visa notwithstanding that the relationship with the partner has come to an end. That policy is to enable such a person to leave an abusive relationship without compromising his or her immigration status. 39. In the circumstances, I accept the submissions of the first respondent on this point. I consider that it is appropriate to read clause 100.221(4)(c) as requiring the domestic violence to have occurred during the currency of the relationship. Accordingly, I consider that the author of the second opinion did not misunderstand the relevant provisions and her opinion was therefore not an irrelevant consideration.’
Ratio Decidendi
Legal Principle Established
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