Muliyana v Minister for Immigration

[2009] FMCA 691

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MULIYANA v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 691

MIGRATION – MRT decision – Spouse permanent residence visa – cessation of spouse relationship and occurrence of domestic violence before date of decision – temporal and causal connection required – one spouse secretly withdrew mutual commitment before inflicting violence – whether victim was ineligible for visa – Federal Court judgment on construction point – previous authority applied – application dismissed.

Migration Regulations 1994 (Cth), regs.1.15A, 1.15A(1A), 1.15A(1A)(b), 1.15A(1A)(b)(i), 1.23, Div.1.5, Sch.1 cl.1220A(3), Sch.2 cll.100.221(2)(b), 100.221(2)(c), 100.221(4), 100.221(4)(b), 100.221(4)(c), 100.221(4)(c)(i)(A), 100.221(4)(c)(i)(B), 309.211(2)

Alin v Minister for Immigration & Multicultural Affairs [2002] FCA 979
Ally v Minister for Immigration & Citizenship [2008] FCAFC 49
Ally v Minister for Immigration & Anor [2007] FMCA 430
Bristol‑Myers Squibb Co v F H Faulding & Co Ltd (2000) 97 FCR 524
Herft v Minister for Immigration & Anor [2007] FMCA 756
Ibrahim v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1279
Meroka v Minister for Immigration & Multicultural Affairs (2002) 117 FCR 251
Minister for Immigration & Citizenship v Sok (2008) 165 FCR 586
Minister for Immigration & Citizenship v Zaouk (2007) 159 FCR 152
Minister for Immigration & Multicultural & Indigenous Affairs v SZANS (2005) 141 FCR 586
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
Sabra v Minister for Immigration & Anor [2007] FMCA 1716
Saeed v Minister for Immigration & Citizenship [2009] FCAFC 41
Shaikh v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 174
Sok v Minister for Immigration & Citizenship (2008) 249 ALR 651, [2008] HCA 50
Sok v Minister for Immigration & Anor [2007] FMCA 1525
Sok v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 144 FCR 170
Suh v Minister for Immigration & Citizenship [2009] FCAFC 42
SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 150 FCR 214
SZGME v Minister for Immigration & Citizenship (2008) 168 FCR 487

Applicant: PRERAK HIMANSHU MULIYANA

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG552 of 2009

Judgment of: Smith FM

Hearing date: 2 July 2009

Date of Last Submission: 13 July 2009

Delivered at: Sydney

Delivered on: 5 August 2009

REPRESENTATION

Counsel for the Applicant: Mr B Zipser

Counsel for the First Respondent: Mr G T Johnson

Solicitors for the Respondents: DLA Phillips Fox

ORDERS

1. The application is dismissed. 

2. The applicant must pay the first respondent’s costs as agreed or taxed in accordance with Federal Court Rules O.62. Pursuant to r.21.02(2)(c), refer those costs for taxation under O.62. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG552 of 2009

PRERAK HIMANSHU MULIYANA

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. Mrs Muliyana came to Australia on a temporary spouse visa, but her marriage broke down before she could be granted permanent residence.  She was assaulted by her husband at a time when she was attempting reconciliation, after being rejected by her own parents in India.  However, the Tribunal found that he had withdrawn his commitment to a shared life before he assaulted her.  It held that Mrs Muliyana was therefore unable to qualify under the ‘domestic violence’ criteria for a subclass 100 visa, which provide an exception to the requirement of a mutual married relationship existing two years after the permanent residence visa application.  The Tribunal applied an interpretation of the criteria with which I disagree, but I have concluded that principles of judicial precedent require that I should uphold its decision.  

The failed marriage  

1. Mrs Muliyana married her husband in January 2005, when she was 22 and he was 23.  Their marriage was arranged by both their parents, and took place in India according to Hindu customs.  Her husband had acquired permanent residence in Australia after studying here, and he returned to his employment in Melbourne in February 2005.  While waiting for permission to follow him, Mrs Muliyana completed studies and started work as a teacher, but she gave up her employment when she joined the household of her parents‑in‑law at their request in February 2006.  A decision to grant her a temporary spouse visa was not made until 23 September 2006, and she was reunited with her husband in Melbourne on 26 November 2006. 

2. Within days of her arrival, and unknown to Mrs Muliyana, her husband told the Department of Immigration: “our relationship was not continuing.  I neither wanted her to come to Australia nor support her stay in Australia”.  He then took a number of actions which revealed his attitude towards their marriage.  Mrs Muliyana gave the following brief account of these events, in a complaint she made on 6 March 2007 to the Melbourne Magistrates’ Court in support of an intervention order: 

   The defendant and I were married in January 2005 in India.  Throughout our marriage the defendant has resided in Australia.  In November 2005, the defendant’s family forced me to leave my job and go to live with them.  I went to live with the defendant’s family in February 2006.  His family were very controlling towards me, dictating who I saw and what I did.  They reported all my activities to my husband in Australia, which caused problems between us.  The defendant encouraged me to seek my visa, so we could have a fresh start together in Australia.  I came to join my husband here in November 2006. On 31 December 2006, we returned to India together and the defendant left me at my parent’s house, stating that he would return to collect me in a couple of days.  He did not return and I found out through his grandfather that he had returned to Australia without me.  I attempted to contact the defendant with no success.  My parents told me to leave and return to my husband.  On 6 February, I returned to Australia on a ticket my parents brought.  I attended our home on 15 February and the defendant refused to let me in.  He was verbally abusive and shoved and pushed me out of the house.  He said he never wants me back and he doesn’t care what happens to me.  He threw my belongings out into the street.  I called police and went to stay with a friend.  The defendant threatened that if he saw me again he would kill me or send me back to India and get others to make my life difficult.  He also threatened to destroy my property that remains at our home.  The defendant’s parents have contacted my parents in India and been very threatening to them.  During our marriage, the defendant has been verbally and physically abusive to me and I am afraid he will carry through with his threats.  I believe I require an order to protect my safety. 

3. On 13 March 2007, Mr Muliyana gave an undertaking to the Magistrates’ Court not to assault, harass, threaten or intimidate Mrs Muliyana.  Evidence of the undertaking, and of the assault and other evidence to support the application of the ‘victim of domestic violence’ ground of permanent residence was presented to the Department of Immigration.  However, a delegate refused a subclause 100 visa on 8 November 2007. 

4. Mrs Muliyana appealed to the Tribunal, and presented further evidence.  This included evidence that her husband had applied to this Court for divorce on 18 April 2008, asserting that there was a separation on 31 December 2006 when he regarded the marriage as over, and giving his opinion that he did not “think it is likely that you and your spouse will live together again as husband and wife”. 

5. Mrs Muliyana told the Tribunal that her husband had appeared happy when the temporary visa was granted, and he had phoned her to tell her of the visa grant.  When she first came to Melbourne, she shared a room and had a sexual relationship with him.  She regarded their relationship as a normal marital relationship, although she was fearful and lonely.  Her husband “had asked her to cook for flatmates when she didn’t really feel like cooking”, and “he was controlling but in Indian culture it is normal for males to dominate”.  There was no domestic violence at this time, and “she did not see a doctor or a physiotherapist until after the incident of 15 February 2007”.  She thought that they had returned to India “to sort out the sponsor’s family’s dissatisfaction regarding whether [she] was fulfilling their expectations”.  Her husband gave her no reasons for separating from her, nor for abandoning her at her parents’ home, and she had attempted to resume their marriage when she returned to Melbourne and went to his home on 15 February 2007.  It was only after the incident on that day that she regarded her marriage as having finished. 

The Tribunal’s reasoning

1. The Tribunal accepted her evidence.  In its decision made on 9 February 2009, it said: 

   47.The Tribunal accepts that the applicant genuinely did not believe that her relationship with the sponsor was over until 15 February 2007.  However, the Tribunal is of the view that the sponsor was not committed to a spousal relationship with the applicant from at least 31 December 2006, or possibly even earlier, from 5 December 2006, when the sponsor advised the Department that the relationship was over.  Certainly by 31 December 2006 the sponsor had taken the applicant back to India and left her with her parents and this is also the date that he has given as the date of separation on the application for divorce, which the applicant provided to the Tribunal.  The Tribunal accepts that the sponsor did not tell the applicant that he believed the relationship was over until 15 February 2007.  However, prior to this, the sponsor had informed the Department that the relationship was over and he then took the applicant back to India and left her there.  He did not tell the applicant that he was returning to Australia and he did not contact her, or respond to her attempts to contact him during January and February 2007.  The Tribunal is satisfied that the sponsor’s behaviour clearly indicates that he did not consider himself to be in a spousal relationship with the applicant after 31 December 2006.  The Tribunal is therefore satisfied that after 31 December 2006 there was not a mutual commitment to a shared life as husband and wife to the exclusion of all others as required by r.1.15A(1A)(b)(i). 

2. The Tribunal found that at the time of its decision “the applicant is no longer the spouse of the sponsoring spouse”.  It then considered the evidence of domestic violence.  It referred to the medical and other evidence presented by Mrs Muliyana, and found that this established domestic violence first occurring on 15 February 2007.  It also found that this did not occur “during the currency of the relationship”, and for that reason held that she did not meet the requirements of the relevant visa criteria.  Its reasoning was: 

   50.The applicant has also provided statutory declarations from herself and 2 competent persons, Dr Peter Edwards, medical practitioner, and Lara Stevenson, Family and Domestic Violence Support Worker, who advises that she is eligible to join the Australian Association of Social Workers.  The Tribunal has already noted that the statutory declarations of the applicant and of Ms Stevenson refer to incidents of violence perpetrated by the sponsor against the spouse after the applicant arrived in Australia on 26 November 2006.  However, in his statutory declaration, Dr Edwards only refers to the incident of 15 February 2007.  Similarly, the Tribunal has noted that the joint undertaking was made on the basis of the complaint made regarding the incident on 15 February 2007.  Furthermore, the applicant has strongly denied to the Tribunal that she was subjected to domestic violence prior to 15 February 2007.  The Tribunal has also taken into account that the applicant first contacted the Berry Street Community Resource Centre where Ms Stevenson is located on 1 March 2007, she was first seen by Dr Edwards on 19 February 2007 and she saw a physiotherapist regarding her back pain on 29 March 2007.  The Tribunal is of the view that the weight of evidence supports a finding that any violence perpetrated by the sponsor against the applicant occurred on 15 February 2007.  The Tribunal is therefore satisfied on the basis of all the available evidence that any violence perpetrated by the sponsor against the applicant occurred on 15 February 2007, which was after the relationship between the sponsor and the applicant ceased on 31 December 2006. 

   51.While the express words of cl.100.221(4)(c) do not state that the domestic violence needed to have caused or contributed to the cessation of the spousal relationship, the Tribunal is of the view that it is appropriate to read that clause as requiring the domestic violence to have occurred during the currency of the relationship: Sok v MIAC [2007] FMCA 1525 (Riley FM, 7 September 2007) at [37]‑[39]. This finding was not disturbed on appeal. The Tribunal has found that the domestic violence did not occur during the currency of the relationship.

   52.In summary, the Tribunal has found that at the time of decision the applicant is no longer the spouse of the sponsoring spouse.  The Tribunal has also found that the domestic violence perpetrated by the sponsoring spouse against the applicant did not occur during the currency of the relationship.  There is no evidence or claim before the Tribunal that the sponsoring spouse has died or that there is any child to whom both the sponsor and the applicant have obligations regarding custody and/or contact or access. 

   53.Given the above conclusion, the applicant does not meet the requirements of cl.100.221(4)(b) and (c) for the grant of the visa.  There is no evidence before the Tribunal that the applicant meets any of the alternate sub criteria. 

3. The present application challenges the correctness of the implied criterion which was identified by Riley FM in Sok, and which was applied by the Tribunal.  Mrs Muliyana submits that, on the correct construction of the criteria, a visa applicant does not need to show that domestic violence occurred before the cessation of a spousal relationship as defined in reg.1.15A.  All that needs to be shown is that the relationship had ceased before the time of decision, and that an act of domestic violence by the sponsor and involving the sponsored spouse or a member of their family unit had occurred before the time of decision. 

The legislation

1. The essential scheme of the regulations for the grant of spouse visas has remained unchanged for many years, and is found in the present regime of subclass 309 and 100 temporary and permanent residence visas for off‑shore applicants, and in subclass 820 and 801 visas for on‑shore applicants.  As presently relevant, it provides for simultaneous applications for both visas (see Sch.1 cl.1220A(3)); the grant of a temporary visa if a spousal relationship is established which meets tests described in reg.1.15A (Sch.2 cl.309.211(2); a two year delay before the application for a permanent visa can be decided (Sch.2 cl.100.221(2)(c)); and time‑of‑decision criteria for the permanent residence visa which require the spousal relationship again to be established at date of decision (Sch.2 cl.100.221(2)(b)) or, alternatively, the commission of acts of domestic violence by the sponsoring spouse on the separated spouse or on other members of the family (Sch.2 cl.100.221(4)). 

2. The relevant criteria in relation to ‘domestic violence’, which has recently been re‑labelled ‘family violence’, were at the relevant time: 

   100.221 

   (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)     …; 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. 

3. Regulation 1.23 and other regulations in Div.1.5 give meaning to references to ‘domestic violence’ in the regulations.  They define the threatening behaviour which is covered, and the procedures and evidence for establishing domestic violence to the satisfaction of the Minister.  There has been extensive judicial consideration of these regulations, and they have been amended several times.  Successive versions show a desire by the regulation‑makers to defer to evidence of family violence provided by relevant court proceedings, and to opinions of suitably qualified professional people, so as to simplify the task of administrative decision‑making in a difficult area of human relationships.  However, under the current scheme of Div.1.5, countervailing requirements of procedural fairness and properly informed decision‑making have provided some scope for factual assessments to be made by the Minister and the Tribunal.  These issues were recently examined by the High Court in Sok v Minister for Immigration & Citizenship (2008) 249 ALR 651, [2008] HCA 50, which upheld another aspect of the judgment of Riley FM which was cited by the Tribunal.

4. In the present case, no issue arises concerning the application of Div.1.5, and it is unnecessary to examine its provisions.  The Tribunal appears to have been satisfied that the evidence established, in terms of Sch.2 cl.100.221(4)(c)(i)(A) and reg.1.23, that Mrs Muliyana had suffered domestic violence committed on her by her husband.  It was clearly satisfied that this had occurred before the time of decision.  It accepted that, prima facie, the terms of that criterion had been met.  It was also clearly satisfied in terms of cl.100.221(4)(b) that Mrs Muliyana’s spousal relationship had previously existed, and had ceased before the time of decision. 

5. The present issue is whether the Tribunal was correct in its opinion that it should also make findings as to the date when the domestic violence first occurred, and to consider its temporal and causal relationship with the cessation of a marital relationship as defined in reg.1.15A.  The Tribunal sourced its obligation to make those findings as an implication of both paragraphs (b) and (c) of cl.100.221(4).  However, as the Tribunal recognised, neither paragraph contains words raising a causal or temporal connection between the cessation of the relationship and the sponsor’s actions of domestic violence.  

6. Paragraph (b) requires that there be satisfaction that a spousal relationship would have existed at time of decision “except that the relationship between the applicant and the sponsoring spouse has ceased”.  In its terms, it requires no findings as to the time or reason for the relationship having ‘ceased’, but requires only that this is the situation in relation to the relationship at the date of decision. 

1. It was held in Minister for Immigration & Citizenship v Zaouk (2007) 159 FCR 152 at [15]‑[17], addressing the comparable criterion in cl.820.211(8)(c), that the cl.100.221(4)(b) criterion would not be satisfied only by a finding that a relationship between the temporary visa holder and his or her sponsor had ‘ceased’ at time of decision, in the sense of did not exist, if the decision‑maker was not satisfied that a ‘relationship’ had previously existed and that it was a relationship of ‘spouse’ as defined under the Migration Regulations. This construction was arrived at by implication from the words of the paragraph and its context. The Full Court said:

   16While the respondent has urged upon us the view that the incidence of domestic violence of itself provides the policy justification for the exception such that the “relationship” requirement should be construed beneficially to an applicant, we do not consider that the subpara can be so construed.  Its context requires otherwise.  It is evident from the provisions of Subclass 820 that the underlying policy (evident in the title of the subclass itself) is to tie the award of this visa to persons who are, or, exceptionally, who have been, in spousal relationships having the qualities identified in reg 1.15A. 

2. The concept of ‘spouse’ under the Migration Regulations is defined in reg.1.15A. It raises considerations going to the objective and subjective indicia of a marital relationship, extending far beyond the legal status of marriage. Notably, reg.1.15A(1A)(b) has the effect that a couple who are legally married are not in a spousal relationship for the purposes of the Migration Regulations unless they also “have a mutual commitment to a shared life as husband and wife to the exclusion of all others”, and “the relationship between them is genuine and continuing”, and “they live together or do not live separately and apart on a permanent basis”. 

3. The present Tribunal thought that the reg.1.15A(1A)(b)(i) test of ‘mutual commitment’ required an assessment of each party’s subjective view of the marriage, and held that this test cannot be satisfied at a point of time when one partner has secretly abandoned his or her commitment to a shared life as husband and wife, notwithstanding that this was not communicated to the other partner, and that the other partner believed the marital relationship to be continuing.  Mrs Muliyana challenged this construction in her present application, but I consider that it must clearly follow from the words ‘mutual commitment’.  The real issue of construction is whether the present Tribunal was obliged by cll.100.221(4)(b) and (c) to make any findings whether Mrs Muliyana’s husband had a ‘mutual commitment’ to their marriage on the occasion when he inflicted his acts of domestic violence upon her. 

4. I have in other cases, upheld Tribunal decisions which found the absence of a reg.1.15A spousal relationship at the date of visa application or at the date of visa decision, due to an uncommunicated opinion or action of one partner which was inconsistent with the existence of a ‘mutual commitment’ at that date.  For example, in Ally v Minister for Immigration & Anor [2007] FMCA 430, the male partner was secretly infected with AIDS and was recklessly spreading the contagion to other women. Although this fact emerged only in later years, I upheld reasoning which regarded the conduct as reflecting on his mutual commitment at the date of application (see [41], upheld on appeal: Ally v Minister for Immigration & Citizenship [2008] FCAFC 49 at [36]‑[37]).

5. However, the difficulty of applying the ‘spouse’ tests in reg.1.15A(1A) to the diversity of human relationships which can exist within a legally continuing marriage is manifest.  It is also manifest that marital relationships alter over time, and that ‘mutual commitment’ may fluctuate in the mind of a partner in a marriage during its currency.  In many Australian marriages, a partner may temporarily withdraw his or her commitment to the marriage, and the couple may encounter periods of mental and physical separation, without, eventually, terminating their marriage.  Significant public resources are devoted to overcoming lapses of mutual commitment and in effecting reconciliations, particularly if children are involved. 

6. It therefore becomes critical when considering the Migration Regulations to identify the particular points in time when the reg.1.15A tests of ‘spouse’ must be applied in the course of deciding spouse visa applications. I have in several cases emphasised this, and made the point that there is no expressed nor implicit requirement under the Migration Regulations that the tests of a ‘spouse’ relationship under reg.1.15A must be satisfied continuously between the date when the temporary visa is granted and the date, not less than two years after application, when the permanent visa application is decided. In Sabra v Minister for Immigration & Anor [2007] FMCA 1716, I quashed a decision of the Tribunal which required proof of ‘living together’ or non‑permanent separation over a period of time preceding the date of decision. The Minister did not appeal from my judgment.

7. In Herft v Minister for Immigration & Anor [2007] FMCA 756 at [9]‑[13] and [49]‑[51], I accepted that Zaouk (supra) allowed a decision‑maker addressing the victim of domestic violence criteria for a permanent residence visa to reconsider whether a reg.1.15A ‘spouse’ relationship had existed at some prior time before date of decision.  However, I held at [49]: 

   The Zaouk interpretation does not require a finding of such a prior existing relationship at any particular time or of any particular duration, so long as it existed at some time before it ceased.  

8. In this context, I have difficulty implying any temporal or causal conditions into cl.100.221(4)(b) and (c) which are not apparent from the language of these criteria.  In particular, I can find no implicit requirement on a decision‑maker to determine the date prior to decision, when a relationship defined in reg.1.15A last ceased, and to determine the relationship of that event to the date or nature of an act of domestic violence.  Uninstructed by authority, it appears to me that the makers of the regulations have deliberately avoided raising any such requirements.  They have formulated time‑of‑decision criteria which, as they state, require the decision‑maker only to be satisfied that a prior spouse relationship has ‘ceased’ before the date of decision, and that before the date of decision the visa applicant, or a member of his or her family unit, was a victim of domestic violence at the hands of the sponsor. 

9. I can see excellent administrative reasons for not requiring a decision‑maker to make difficult decisions about the timing of the breakdown of a marital relationship and its connection to domestic violence.  There are also public policy reasons for not requiring an administrative agency to address these issues.  They involve assessments which the family courts try to avoid.  ‘Cruelty’ is no longer a ground of divorce, and issues of property division and child care are usually addressed without assessing the causes and precise timing of marital separation. 

10. I accept that the Migration Regulations reflect a policy of granting residence visas to former spouses with temporary residence, if they or their children were victims of domestic violence at the hands of their sponsor. However, this policy could reasonably be given effect by assuming that any violence occurring in a relationship was likely to have contributed to the cessation of that relationship having occurred at the date of decision, without requiring a causal connection between the violence and the withdrawal of mutual commitment to be investigated. In the absence of an expressed requirement on the Minister to be satisfied as to a connection between the events described in paragraphs 100.221(4)(b) and (c), I do not consider that ‘context’ requires this to be implied.

11. Moreover, the concept of ‘domestic violence’ covered by cl.100.221(4)(c) and Div.1.5 of the regulations extends beyond violence causing the breakdown of a marital relationship.  This appears to be indicated in its extension under paragraph (c)(i)(B) to violence inflicted by a sponsor on a child or member of the family unit other than the visa applicant.  Also, extrinsic material such as was cited in Sok v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 144 FCR 170 by Branson J at [14]‑[15] and Hely J at [58]‑[59] and [82]‑[83] shows that “the expression ‘domestic violence’ has for some time in Australia been understood to encompass a wide range of behaviours”, and that it encompasses “a continuum of controlling behaviour and violence, which can occur over a number of years, before and after separation”.  

12. Even if there is an implication that domestic violence within cl.100.221(4) must always be associated with the breakdown of a marriage, in my opinion the construction adopted by the Tribunal would have consequences which would not have been intended by the regulation‑maker.  A serious threat or act of violence by a spouse to his or her spouse or their children may often demonstrate that the perpetrator had lost “mutual commitment to a shared life as husband and wife” prior to the time when it was inflicted.  If it occurred during a period of estrangement or separation in the relationship, it may well evidence that an apparently temporary cessation of mutual commitment was a permanent one.  Current community and governmental support for victims of domestic violence attempts to enable victims of these events to take the option of irrevocable separation following an act of violence.  Yet, on the interpretation taken by the Tribunal, the victim in both of these circumstances might not be able to qualify for the ‘victim of domestic violence’ resident visa, because the very acts of violence at the time of separation would provide evidence contrary to the ‘spouse’ tests in reg.1.15A, if they are applied at the date of the violence.  On any view of the policy reflected in criterion 100.221(4), I do not consider that this was a likely intention. 

13. I note that neither counsel referred me during the hearing to any extrinsic material relevant to this construction point.  After the hearing, counsel for the Minister referred me to the explanatory memoranda for amendments made in 1995 and 1996, but I could find no support in the passages he cited for, or against, the construction applied by the Tribunal.  Nor, as I shall explain below, did I find previous judicial references to the policies of the ‘domestic violence’ regulations to be persuasive in favour of that construction. 

14. For all of these reasons, I do not agree with the construction applied by the Tribunal.  If I were free to apply my own opinion, I would hold that, on the correct construction of the regulations, and upon the findings of fact made by the Tribunal, Mrs Muliyana satisfied the criteria in Sch.2 cl.100.221(4). 

15. However, the Minister submits that I am obliged by previous judicial authority to uphold the construction by which she was disentitled.  

Previous judicial consideration

1. The authority which was submitted to have that effect is Sundberg J’s judgment in Alin v Minister for Immigration & Multicultural Affairs [2002] FCA 979. In that case, the applicant was unrepresented, and sought judicial review of a decision which refused him a permanent subclass 801 spouse visa. His Honour was exercising the Federal Court’s original jurisdiction under the Migration Act, at a time when there was uncertainty as to the effect of the privative clause prior to Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476. He avoided the controversy, and gave three separate reasons for dismissing the application:

   i)No “common law” ground of judicial review would assist the applicant, since his grounds only invited “a review of the merits of the Tribunal’s decision” (at [11]‑[12]);

   ii)Even if reviewable error were discerned, the statutory declarations of the medical practitioner and the psychologist he had presented to the Tribunal did not satisfy the requirements of the regulations (at [12]‑[13]);

   iii)Any assumed error by the Tribunal would also not have affected its decision that the applicant was not entitled to a visa, because “the parties’ relationship came to an end before the alleged violence occurred” (at [14]‑[15]). 

2. Sundberg J’s reasoning in relation to the last point was: 

   14There is a further reason why the spouse visa criteria could not be met by the applicant.  As Ryan J said in Meroka v Minister for Immigration and Multicultural Affairs above at par 38, the evident purpose of sub‑clauses 801.221(5) and (6) is to deal with persons who are the holders of Subclass 820 visas and whose relationship has come to an end through the death of the sponsoring spouse or as a result of domestic violence for which the sponsoring spouse was responsible.  Here the parties’ relationship came to an end before the alleged violence occurred.  See the definition of “spouse” in reg 1.15A(1A).  The Tribunal found, in accordance with information provided by the sponsor, that the relationship came to an end on 1 September 2000.  The alleged violence did not occur until 16 September 2000. 

3. Counsel for Mrs Muliyana conceded that the legislative context of his Honour’s decision was indistinguishable from the present legislation, and that his reasoning clearly supported the present Tribunal’s construction of cl.100.221(4), in particular by applying the reg.1.15A(1A) spouse test at the date of the alleged violence.  However, he submitted that I should decline to follow this opinion because it was obiter dicta, ‘clearly wrong’, and not binding on this Court. 

4. Notwithstanding the terseness of his Honour’s reasoning, I do not consider that it can be put aside as obiter dicta.  It was clearly presented as one of three separate reasons supporting the orders made by his Honour (cf. Bristol‑Myers Squibb Co v F H Faulding & Co Ltd (2000) 97 FCR 524 at [158]).

5. There is authority in this Court that a judgment of a single justice of the Federal Court exercising its original jurisdiction is not binding upon judges of the Federal Magistrates Court, and this proposition has not been overruled, although the Full Court has shown a lack of enthusiasm for it (see Minister for Immigration & Multicultural & Indigenous Affairs v SZANS (2005) 141 FCR 586 at [35]‑[39] and Suh v Minister for Immigration & Citizenship [2009] FCAFC 42 at [29]). It is clear that this Court is strictly bound to apply the opinions last given in the Federal Court on a legal point in the exercise of its appellate jurisdiction, whether by a single justice or a Full Court (see SZGME v Minister for Immigration & Citizenship (2008) 168 FCR 487 at [42], and compare Saeed v Minister for Immigration & Citizenship [2009] FCAFC 41 at [43]).

6. If I am not bound by Sundberg J’s opinion, I must at least apply principles of judicial comity, conscious of the positions of the Federal Court and of this Court in the hierarchy of Commonwealth courts, and of the benefits to the administration of justice for laws to be applied consistently by judges at first instance.  In the circumstances, I consider that I would need to be persuaded that his Honour’s opinion was ‘clearly or plainly wrong’ on tests at least as demanding as those which are applied by judges considering an opinion of another judge or bench given in a court exercising jurisdiction at the same level. 

7. I do not consider that it is enough for me to point to the shortness of Sundberg J’s consideration, nor to the fact that he may not have received legal submissions on the point from the applicant.  It was a reserved judgment by a justice of the Federal Court.  Nor is it enough that I have arrived at a different opinion on the point of construction, even if I am ‘convinced’ of my own opinion. 

8. I have not been persuaded that his Honour must have overlooked any particular provision of the legislation, extrinsic evidence, or other consideration which demonstrates that error in his opinion was manifest and unarguable (cf. Weinberg J in SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 150 FCR 214 at [146]‑[149]). At most, I have found his reasoning unpersuasive, and contrary to my perception of the implications which should be made, or not made, from the statutory language and context.

9. Ultimately, I have concluded that the construction point is one upon which judicial minds might reasonably differ, and I am not prepared to depart from a long established judgment of the Federal Court which is directly on point. 

10. This conclusion means that I do not need closely to examine the other authorities upon which the Minister relied, in his arguments seeking to persuade me to follow Sundberg J.  However, I shall briefly indicate why I would have followed my own opinion, if I were not persuaded that Alin is directly on point and was not unarguably wrong. 

11. Riley FM’s judgment in Sok, appears to me essentially to have accepted the Minister’s submission that she should follow Alin.  It might be open to treat her opinion as obiter dicta in relation to this issue, since her Honour found other reasons for quashing the Tribunal’s decision and remitting the matter, and since, unlike Sundberg J, she did not regard it futile to do this despite her conclusion that Mr Sok was ineligible.  Moreover, Riley FM’s conclusions on the point were not raised by the Minister in the Full Court as a ground of appeal (see Minister for Immigration & Citizenship v Sok (2008) 165 FCR 586), nor as a contention in the High Court. However, Riley FM clearly considered and addressed this issue, which was raised by several of the grounds of review in the application which were argued before her.

12. Judges of the Federal Magistrates Court do follow principles of comity in relation to legal points addressed previously by their colleagues, but without being precious about the conclusiveness of previously expressed legal opinions.  Its judges are often presented with inadequate legal submissions, and often lack the opportunities for research and reflection on legal points given to justices of superior courts.  They publish very numerous judgments, particularly in migration matters.  It is therefore not unknown for disagreements sometimes to occur, and for a settled position to emerge through a dialogue of published judgments or through further consideration in the Federal Court.  

13. In relation to the present point, I may have declined to follow Riley FM’s opinion at [39] 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”, if I had been able to distinguish Alin. Particularly, since I respectfully disagree with her perception at [38] that the regulations should be read down to reflect a policy “to enable [a person in circumstances of domestic violence] to leave an abusive relationship without compromising his or her immigration status”.  I doubt that it is the purpose of the regulations to have this pro‑active role in relation to abusive family relationships involving immigrant spouses.  More importantly, I do not agree that the policy discerned by Riley FM exhausts the policies reflected in cl.100.221(4), because in my opinion it is also intended to cover situations of domestic violence inflicted on children of marriages which have broken down, or inflicted on a partner to a marriage after the withdrawal of commitment. 

14. The Minister’s counsel did not submit that the statement of Ryan J in Meroka v Minister for Immigration & Multicultural Affairs (2002) 117 FCR 251 at [38], which was cited by Sundberg J in Alin, was directly on point.  Ryan J clearly was addressing a completely different point of construction, relating to the conclusiveness of the statutory declarations under previous regulations.  He found in favour of the applicant by discerning a policy in the regulations “to facilitate the processing of applications … by persons … whose marriages have come to an end … as a result of domestic violence for which the nominating spouse was responsible”.  I consider that Ryan J gave no suggestion that the policy discerned by him exhausted the purposes of the regulations, nor that it required any narrowing of their expressed language. 

1. Subsequent to the hearing, counsel for the Minister cited two other judgments which he submitted provided direct authority supporting the construction applied by the Tribunal. 

2. In Ibrahim v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1279, Wilcox J agreed with Ryan J’s opinion in Meroka that the then regulations gave conclusive effect to the formal content of statutory declarations of competent persons as to the existence of domestic violence, describing this at [40]‑[41] as a “triumph of form over substance” which could create an absurd situation illustrated in the case before him.  He explained: 

   40The regulatory regime is a triumph of form over substance.  Paragraph 801.221(6) creates an exception to the general rule that an application for a subclass 801 visa must continue to be supported by the applicant’s spouse.  It does so, no doubt, on the humanitarian ground that it would further victimise a victim of domestic violence if a breakdown of the spousal relationship, which may be the result of, or associated with, the domestic violence, thereby disqualified the victim from obtaining the visa to which she or he would otherwise have been entitled.  However, although the relevant exception is expressed in para 801.221(6)(c) by reference to a factual situation (“has suffered domestic violence committed by the nominating spouse”), Division 1.5 of the Regulations precludes the visa decision‑maker investigating the facts.  If the appropriate statutory declarations are provided by the visa applicant, domestic violence “is taken” to have been suffered by the visa applicant at the hands of the nominating spouse, even if the opinions stated in the statutory declarations lack any discernible cogency.  If the visa applicant fails to obtain appropriate statutory declarations, by the required two competent persons, the visa application has to be refused.  This is so even if the decision‑maker is totally satisfied that the applicant has suffered domestic violence at the hands of his or her spouse. 

3. These statements were not directed at the present issue.  I also do not accept the Minister’s submission that the highlighted sentence in this passage supports the construction applied by the present Tribunal.  Rather, in my opinion, it is inconsistent with that construction.  The policy suggested by Wilcox J included the grant of a visa if domestic violence was “associated” with “a breakdown of the spousal relationship”, and not only if the breakdown was “the result of” domestic violence.  This appears to encompass post‑separation domestic violence. 

4. The other authority cited by the Minister was Shaikh v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 174. The Full Court upheld a judgment of this Court upon the basis, at [39]‑[41], that it was open to the MRT to find that the statutory declarations did not contain opinions in the terms required by the regulations. No point of statutory construction arose for decision by the Full Court, and certainly no point having any bearing on the present issue. In the course of the Full Court’s narration of the proceedings before the MRT, they said:

   17The MRT then considered Mr Shaikh’s claim to be a victim of domestic violence at the hands of Ms Krishna, and her mother, pursuant to sub‑cl 801.221(6)(c)(i).  That part of the regulations provides, essentially, that if the relationship between a visa applicant and a nominating spouse has ended in circumstances where the applicant has suffered domestic violence, committed by the nominating spouse, the applicant meets the requirements of cl 801.221 and thus qualifies for the relevant visa. 

5. I do not accept that the highlighted passage supports the construction applied by the Tribunal in the present case, nor provides binding authority on this Court in relation to the present issue.  The generality of the phrase “ended in circumstances where the applicant has suffered domestic violence”, might well appear to encompass violence occurring after the withdrawal of ‘mutual commitment’ under the reg.1.15A test of a spousal relationship.  I can find no suggestion in this observation by the Full Court that the ‘victim of domestic violence’ criterion was only available in relation to violence occurring while a reg.1.15A relationship existed.  I consider that the judgment in Shaikh provides no authority to that effect. 

6. However, since I have concluded that I should follow the opinion of Sundberg J in Alin, I must dismiss the application. 

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Lilian Khaw

Date:  5 August 2009