Nguyen v Minister for Immigration
[2007] FMCA 1315
•9 August 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NGUYEN v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1315 |
| MIGRATION – Protection visa – Migration Review Tribunal – genuine spousal relationship – whether jurisdictional error – whether error when considering ‘domestic violence’ and spousal relationship. |
| Migration Regulations 1994 |
| Collins v Minister for Immigration [2003] FMCA 571 Minister for Immigration and Ethnic Affairs v Dhillon (Unreported decision 8 May 1990) Minister for Immigration and Citizenship v Zaouk [2007] FCAFC 47 Bretag v Minister for Immigration, Local Government and Ethnic Affairs (Unreported decision, 29 November 1991) |
| Applicant: | THI KIM PHOUC NGUYEN |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File number: | MLG 1090 of 2006 |
| Judgment of: | McInnis FM |
| Hearing date: | 27 July 2007 |
| Delivered at: | Melbourne |
| Delivered on: | 9 August 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr G. Gilbert |
| Solicitors for the Applicant: | Holding Redlich |
| Counsel for the First Respondent: | Mr C.J. Horan |
| Solicitors for the First Respondent: | Clayton Utz |
ORDERS
The Application be dismissed.
The Applicant shall pay the First Respondent’s costs fixed in the sum of $5,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1090 of 2006
| THI KIM PHOUC NGUYEN |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Applicant relies upon an Amended Application filed 23 November 2006 seeking judicial review of a decision of the Migration Review Tribunal ("the Tribunal") dated 17 July 2006. In its decision, the Tribunal had affirmed a decision of a delegate of the First Respondent finding that the Applicant is not entitled to the grant of a partner (temporary) (class UK) visa, nor a partner (residence) (class BS) visa. It should be noted that the Applicant now relies upon only one particular subjoined to the grounds of the Amended Application; namely:
“The Tribunal erred in failing to consider the evidence of domestic violence as relevant to the question of whether there was a pre‑existing spousal relationship, that is, by adopting a two stage approach sanctioned by Collins and Guven it failed to consider an element of the applicant's claim.”
The background to the application is not in dispute. The Applicant is a citizen of Vietnam who arrived in Australia on 8 December 2002 as the holder of a class TO subclass 300 prospective marriage (temporary) visa which had been granted on 29 November 2002 on the basis of the Applicant's proposed marriage to Mr Mervyn Williams (the sponsor), an Australian citizen. The Applicant and the sponsor had commenced their relationship over the telephone in November 2001 after having been introduced through mutual friends.
The sponsor visited Vietnam between 13 February 2002 and 11 March 2002, during which time the parties were engaged on 26 February 2002. The sponsor travelled to Vietnam in October 2002 and returned to Australia thereafter with the Applicant on 8 December 2002. The parties were married in Australia on 5 January 2003. On 13 January 2003 the Applicant left the sponsor and moved into women's refuge. The Applicant applied for a temporary spouse visa and a permanent spouse visa on 20 March 2003 and in that application claimed she had been the victim of domestic violence committed by the sponsor and that she satisfied the criteria set out in clause 820.211(8) of Schedule 2 of the Migration Regulations 1994 ("the Regulations").
A delegate of the First Respondent refused to grant a temporary spouse visa to the Applicant on 29 September 2003. On 13 April 2005 a differently constituted Tribunal affirmed the delegate's decision. On 9 November 2005, orders were made by consent in the Federal Magistrates Court setting aside the Tribunal decision and remitting the matter to the Tribunal for reconsideration. As indicated earlier in this judgment, by its decision dated 17 July 2006, the Tribunal again in the matter before this court affirmed the delegate's decision.
I accept that the First Respondent in submissions has accurately identified the key findings of the Tribunal; namely, that the Applicant and the sponsor had not been in a genuine spousal relationship at any time before their association ended in January 2003. It is relevant to note that the Tribunal in its decision considered the claim made by the Applicant and in particular had set out in its decision details of the domestic violence claim. So much is evident in the Tribunal's decision where reference is made to the submissions of the representative of the Applicant together with attachments comprising statements and statutory declarations. It is also relevant to note the following extract from the Tribunal's decision dealing with the claim of domestic violence:
“20.On 17 September 2003, the visa applicant's agent lodged a further submission with the Department, stating in part that the visa applicant satisfied the requirements of regulation 820.211(8) and accordingly met all criteria for the grant of a Subclass 820 visa. The agent stated that the evidence of domestic violence submitted was in accordance with the requirements of regulation 1.21. She stated that the fact that domestic violence occurred did not detract from the genuine and continuing nature of the parties' relationship up until the time that the visa applicant was forced to leave the relationship. The agent claimed that the fact that the visa applicant attempted to continue the relationship despite the violence attested to the genuineness of her commitment to her marriage. She stated that the religious marriage ceremony undertaken by the parties in Vietnam provided further evidence of the genuineness of the parties' relationship.
21.The delegate stated that the visa was not granted on the basis that the submissions made did not fully satisfy the requirements of Division 1.5 of the Regulations in that the competent persons had failed to set out the evidence on which their assessment was based as per regulation 1.26(f).
22.The delegate stated that the visa applicant had previously attempted to migrate to Australia but was repeatedly unsuccessful, that the visa applicant had pursued an application to remain in Australia in order to gain permanent residence and that the visa applicant's intention towards the sponsor was not genuine, given her previous immigration history. The delegate indicated that she was not satisfied that the visa applicant met the requirements of the domestic violence provisions of the Regulations.
23.The delegate stated that as the requirements of Division 1.5 were not satisfied, the visa applicant had not established that she had suffered domestic violence from the sponsor, which in turn meant that she could not satisfy clause 820.221 and as a consequence, could not satisfy the criteria for a Subclass 820 visa.
24On 2 October 2003, the visa applicant's agent lodged an application for review with the Tribunal. The visa applicant reiterated in part in the review application her earlier claims that she had suffered domestic violence at the hands of the sponsor and that she had provided the Department with statutory declarations from 3 competent persons stating that in their opinion she had suffered domestic violence.”
(Court Book p.306)
The Tribunal refers to submissions made for and on behalf of the Applicant and then refers in its decision to a decision of this court in the matter of Collins v Minister for Immigration [2003] FMCA 571 (Collins). The Tribunal refers to the second hearing conducted on 31 March 2006 where the Applicant gave sworn evidence with the assistance of an interpreter and was represented by an agent. The Tribunal summarised the evidence and that summary included the following:
“41.The sponsor was in Vietnam for a month and stayed at the Hotel Lan Lan. She continued to live in her family home. A few days after the sponsor's arrival in Vietnam a staff member at the Hotel Lan Lan requested some details from the sponsor's passport. The sponsor gave her his passport to give to the hotel staff and as he did so he told her his real age. He told her that it didn't matter because, despite his chronological age, "I'm 18". She stated that she was not concerned and that the sponsor looked healthy. Asked whether he was in good health she responded that he suffered breathing problems and she had to look after him during his stay. The Tribunal queried whether notwithstanding the sponsor's youthful attitude to life she had, upon realising his true age, any doubts, concerns or second thoughts about the decision to marry given that his age necessarily affected the quality and duration of their future together. She responded that the sponsor looked after her and her sister and family so well that she forgot about his age. Her mother was initially concerned about the age difference but when he was so generous to them she realised what a nice man he was. He looked after her like a father. She looked at him as her father and husband.
42.They saw each other constantly and, on 26 February 2002, celebrated their engagement. Her family loved the sponsor. He did not, however, meet her father - her parents separated a long time ago and she has not maintained a relationship with her father.
43.The sponsor returned to Vietnam in October 2002 and again stayed at the Hotel Lan Lan while she continued to live in her family home. They returned to Australia together on 8 December 2002. Asked what sort of relationship she was in with the sponsor and what sort of relationship she envisaged having with him in Australia she told the Tribunal that she and the sponsor had not had a sexual relationship and he had been more like the father she had never had to her (her own father having left the family home many years ago). They cared for each other - she did not think about a sexual relationship but thinking back, now imagines that she must have thought it would happen in time.
44.Upon their arrival in Melbourne they went to stay in a hotel for a week. On the first night together the sponsor committed the acts of sexual abuse that are now relied upon as some of incidents of domestic violence. She was profoundly upset and wanted to go straight back to Vietnam but felt too ashamed and couldn't face her family. The abuse continued and she asked him to stop. He desisted but then started forcing himself sexually on her again. She contacted Quang and the three of them discussed the problem. It appeared that the sponsor understood that his conduct had been inappropriate and the matter was resolved.”
(Court Book p.309)
The Tribunal then specifically refers to the domestic violence which was the subject of the Applicant's claim in the following terms:
“47.The Tribunal noted that in the statement she made to the police dated 2 February 2003 she stated that the sponsor had continued to sexually assault her throughout the period between 8 December 2002 and 5 January 2003 and asked why, given that the sponsor was failing to provide her with a sort of love and support she had expected (and indeed, on the contrary, was subjecting her to sexual abuse) she married the sponsor on 5 January 2003. She stated that the sponsor was remorseful and she thought he would start to treat her properly. The Tribunal observed that he had previously apologised for his misconduct and undertaken to change his ways only to abuse her again. She reiterated that she believed their problems were behind them and that their marriage would be a happy one.
48.Unfortunately the sponsor continued to sexually abuse her and she had no alternative than to leave him. On 13 January 2003 she moved out of the sponsor's home into a women's refuge centre. Apart from one time (when the sponsor inadvertently spoke to her when she answered a telephone call made by him to Stella's mobile phone while Stella was driving) she has not spoken to him since. She now relies on the domestic violence provisions of the Regulations and the statutory declarations submitted to the first Tribunal declared by her, Ms Brown on 23 August 2004, Ms Finn on 31 August 2004 and subsequent statutory declaration by Ms Finn on 11 August 2005 in relation to her use of the word "grooming" in her first statutory declaration.”
(Court Book pp.309-310)
Under the heading "Discussion and Findings" the Tribunal correctly sets out the relevant extracts from subclause 820.211(8) of the Regulations as follows:
“820.211(8) An Applicant meets the requirements of this subclause if:
(a)the Applicant is the holder of a Subclass 300 (Prospective Marriage) visa; and
(b)the Applicant has married the sponsoring spouse under a marriage that is recognised as valid for the purposes of the Act; and
(c)the relationship between the Applicant and the sponsoring spouse has ceased; and
(d)any 1 or more of the following;
(i) the Applicant;
(ii) ...;
(iii) ...;
has suffered domestic violence committed by the sponsoring spouse.”
It is also appropriate to set out the relevant extract from subregulation 1.15A(3) as follows:
“(3)In forming an opinion whether 2 persons are in a married relationship, or a de facto relationship, in relation to an application for:
(ad) a Partner (Migrant) (Class BC) visa; or
(ae) a Partner (Provisional) (Class UF) visa; or
(af) a Partner (Residence) (Class BS) visa; or
(ag) a Partner (Temporary) (Class UK) visa;
the Minister must have regard to all of the circumstances of the relationship, including, in particular:
(a) the financial aspects of the relationship, including:
(i) any joint ownership of real estate or other major assets; and
(ii) any joint liabilities; and
(iii) the extent of any pooling of financial resources, especially in relation to major financial commitments; and
(iv) whether one party to the relationship owes any legal obligation in respect of the other; and
(v) the basis of any sharing of day‑to‑day household expenses;
(b) the nature of the household, including:
(i) any joint responsibility for care and support of children, if any; and
(ii) the parties' living arrangements; and
(iii) any sharing of responsibility for housework;
(c) the social aspects of the relationship, including:
(i) whether the persons represent themselves to other people as being married or in a de facto relationship with each other;
(ii) the opinion of the persons' friends and acquaintances about the nature of the relationship; and
(iii) any basis on which the persons plan and undertake joint social activities;
(d)the nature of the persons' commitment to each other, including:
(i) the duration of the relationship; and
(ii) the length of time during which the persons have lived together; and
(iii) the degree of companionship and emotional support that the persons draw from each other; and
(iv) whether the persons see the relationship as a long‑term one.”
The Tribunal in its findings states:
“56.The Tribunal notes that the visa applicant has lodged material in support of a claim of domestic violence pursuant to clause 820.211(8)(d). However the Tribunal finds that clause 820.211(8)(d) involves an assessment of whether the visa applicant had been the sponsor's spouse and would continue to be except that the spousal relationship ceased and the sponsor had died or the applicant has been the subject of domestic violence perpetrated by the sponsor. Accordingly, before undertaking an analysis of whether domestic violence is taken to have occurred under Division 1.5 of the Regulations, the Tribunal has considered whether at the time prior to the cessation of the relationship the sponsor and the visa applicant were in a spousal relationship. In this context the Tribunal notes the decisions in Collins v Minister for Immigration (2003) FMCA 571 and Guven v Minister for Immigration (2006) FMCA 311.”
(Court Book p.311)
The Tribunal then makes reference to the decision of Collins referred to earlier in this judgment and specifically recites the Court's decision in para.42 of that case as follows:
”42.It is not necessary for me to then further consider the matter of domestic violence as that no doubt may be the subject of further consideration by the MRT when the matter is remitted for further consideration. The determination of whether there is a genuine spousal relationship however in my view as a matter of law is properly to be considered by the MRT as a primary issue. So that there is no misunderstanding I did not otherwise accept the submissions by the Applicant but having made an adverse finding in relation to that matter it is still necessary for the MRT to consider the evidence of alleged domestic violence for the purposes of the regulations. My reading of sub-regulation 8 is that the clear inference and basis upon which that regulation is to be applied is that applies to the relationship which at least at one point could be regarded as a genuine spousal relationship. Otherwise the purpose and intent of the regulation and its meaning on a proper reading would make little sense particularly in circumstances where there may be a finding that there has never been a genuine spousal relationship and a tribunal or delegate then be required, in applying the regulations, to consider amongst other things the issue of domestic violence which would only be a saving grace in circumstances where the genuine spousal relationship had already been established.”
The Tribunal proceeds to consider those matters which are regarded as relevant, including the relationship between the visa Applicant and the sponsor, the financial aspects of the relationship, the nature of the household, the social aspects of the relationship. It is noted that in relation to the last of those topics, the Tribunal relevantly states:
“71.The Tribunal notes that the sponsor returned to Vietnam and they celebrated an engagement party in December 2002 but, in light of the age and cultural differences between them, the Tribunal is not satisfied that the parties had sufficient time or opportunity during the visa applicant's visits to Vietnam to form a genuine commitment to live together as spouses. Nor is the Tribunal satisfied that the visa applicant formed and developed a close personal relationship in the brief troubled period (8 December 2002 - 13 January 2003) in which they cohabited in Australia. The Tribunal does not accept that the visa applicant, as a 28‑29 year old who had spent a few weeks in February 2002 and October 2002/January 2003 with the sponsor formed and developed a close personal relationship such as could have grounded a genuine intention by her to live permanently with the sponsor as his spouse. The ineluctable inference arising from the age difference and lack of time spent together is that, in forming an association with the sponsor, the visa applicant was motivated purely by a desire to migrate to Australia.
(Court Book pp.314-315)
The Tribunal then proceeds to refer to the Full Court decision in Minister for Immigration and Ethnic Affairs v Dhillon (Unreported decision 8 May 1990). The Tribunal then, after referring to another case, relevantly states:
“74.The Tribunal considers that Regulation 1.15A, as elucidated in Nasshouh and Dhillon, contemplates that evidence that a visa applicant is motivated by other incentives such as eligibility for migration to Australia will not disentitle a visa applicant to the visa if the visa applicant and sponsor are also in a genuine spousal relationship and have a commitment to a shared life together. In light of the parties' differences in age, culture and first language and the brevity of time spent together, the Tribunal is not satisfied, however, that the visa applicant and the sponsor had, at any time before their association ended, a genuine spousal relationship. The Tribunal notes that, having met the sponsor in February 2002, she was shocked by his age thinking he was about 50 and a few days later discovered his real age, 76. If the sponsor being 50 was a shock to her then his true age of 76 would have presumably been enough to dispel any idea of marriage and married life together. However, when asked whether she could have been genuinely contemplating a shared life with someone who was so much older than her, the visa applicant responded that by the time she realised the extent of the age difference between them it didn't matter because she had already fallen in love with the sponsor over the telephone (they had started talking on the phone in November 2001).”
(Court Book p.315)
The significant adverse finding of the Tribunal appears as follows:
“78.Whether the visa applicant was already aware of the sponsor's age or she became aware of it a few days after his arrival in Vietnam in February 2002, she was aware of it, at the latest, within a few days of his arrival in Vietnam. As indicated above the Tribunal does not accept that, given the gulf in their ages and the brief time they spent together during the sponsor's visits to Vietnam that the visa applicant formed a commitment to a shared life with him as his spouse. As indicated above, nor is the Tribunal satisfied that the visa applicant formed and developed a spousal relationship in which they cohabited in Australia.”
(Court Book p.316)
I have deliberately set out in some detail the extracts from the Tribunal decision so that it can be clearly understood that the process followed by the Tribunal was to consider whether or not the parties were in a genuine spousal relationship. The issue agitated before this court, as set out earlier in this judgment, is a narrow issue which focuses on the manner in which the Tribunal considered evidence of domestic violence as to whether it was relevant to the question of whether there was indeed a pre-existing spousal relationship.
Submissions
The Applicant had submitted that the Tribunal had erred in the manner in which it approached its task by referring to the two-stage process. Specifically it was submitted that by adopting that two-stage process, based in part on the decision of this court in Collins which, it is common ground, appears by inference to have been accepted by a Full Court of the Federal Court in the matter of Minister for Immigration and Citizenship v Zaouk [2007] FCAFC 47 (Zaouk), the Tribunal in the present case.
It was argued the Tribunal did not consider the evidence in relation to domestic violence as a separate issue. It was submitted the domestic violence allegations required consideration of the Tribunal, having regard to the principles it the case of Bretag v Minister for Immigration, Local Government and Ethnic Affairs (Unreported decision, 29 November 1991). It was argued the Tribunal failed to deal with the aspect of domestic violence in the claim; namely, that that violence was evidence of the existence of a relationship. That, it was submitted, amounts to jurisdictional error.
First Respondent's Submissions
The First Respondent submitted that the Tribunal did consider domestic violence in the context of its decision-making process when considering whether the parties were at any point in a genuine spousal relationship. It was argued that the Tribunal in the present case, having regard to the extracts set out earlier in the judgment, had followed the correct process in determining whether indeed the Applicant and the sponsor were in a genuine spousal relationship within the meaning of Regulation 1.15A.
It was argued that the extract from the Tribunal's decision set out earlier provides evidence that the Tribunal had recited in some detail the claim of domestic violence but had otherwise not been persuaded that the domestic violence episodes would provide evidence upon which the Tribunal may conclude that there was a genuine relationship. Specifically, reference was made to the following sentence set out earlier in the judgment which appeared in para.71 of the Tribunal's decision where it states:
“71.… Nor is the Tribunal satisfied that the visa qpplicant formed and developed a close personal relationship in the brief troubled period (8 December 2002 - 13 January 2003) in which they cohabited in Australia. …”
It was otherwise submitted that the Applicant's present application impermissibly seeks to reagitate the merits of the Tribunal's finding of fact. It was submitted that the fact of domestic violence, even if accepted, does not necessarily demonstrate the prior existence of a genuine spousal relationship. It was argued that it is not "correct to assert that 'an existing relationship is a necessary platform' for domestic violence". Further, it was submitted that, "whether or not there existed a prior genuine spousal relationship was a matter for determination by the Tribunal".
It was submitted that accordingly the Tribunal has not acted in a manner inconsistent with the principles in Bretag. It was otherwise submitted that a failure by the Tribunal to give weight to particular evidence submitted in support of the domestic violence claims would not of itself amount to jurisdictional error.
Reasoning
In my view, although the Tribunal has made brief reference to the evidence concerning domestic violence in its findings, it has clearly recited in some detail the claims of domestic violence made by the Applicant. The Tribunal has otherwise made a finding reasonably open to it on the facts; namely, that the relationship between the parties during what it describes as the "brief troubled period" between 8 December 2002 and 13 January 2003 does not satisfy the Tribunal that the parties developed a close personal relationship of the kind that would satisfy the regulations.
The Tribunal has otherwise correctly identified the task before it; namely, the consideration and finding as to whether the parties did in fact live in a genuine spousal relationship. It did that by considering all the facts which were relevant to its decision-making process including, albeit perhaps briefly, the period of domestic violence referred to by the Applicant as occurring during the December 2002, January 2003 period. It is not for the Tribunal to recite in detail the domestic violence claims but rather to at least refer to it, as it has done, as part of the background material which may or may not persuade the Tribunal that there is evidence of a genuine spousal relationship in circumstances where there is also evidence of domestic violence.
The existence of domestic violence may of course lead a Tribunal to conclude that there is in fact insufficient evidence of a genuine spousal relationship, as at least on the part of the perpetrator it may indicate a distinct lack of commitment to a genuine spousal relationship. Conversely, if domestic violence had occurred over a significant period of time and the victim of the violence has returned to the relationship and has expressed a desire to return to the relationship and a commitment to that relationship, then that also may be evidence upon which a Tribunal may rely. They are, however, matters of fact for a Tribunal to consider, and in the present case I am satisfied the Tribunal has properly considered the material and reached a conclusion open to it, free of error.
Reference was made during the course of submissions by counsel for the Applicant to documents before the Tribunal setting out the claims of domestic violence. Specific reference was made to the submission made for and on behalf of the Applicant by her representative in the following terms:
“In our submission, the fact that domestic violence occurred does not detract from the genuine and continuing nature of the relationship up until the time Ms Nguyen was forced to leave the relationship. To the contrary, we submit that the fact that Ms Nguyen attempted to continue the relationship despite the violence she was subject to by her husband attests to the genuineness of her commitment to her marriage.”
(Court Book p.220)
In my view the Tribunal's conclusion set out earlier in this judgment and further referred to in submissions, that it was not satisfied that the parties had developed a close personal relationship in the brief troubled period between 8 December 2002 and 13 January 2003, clearly indicates that the Tribunal has had regard to the submission by the Applicant's representative that the domestic violence itself may in certain circumstances provide evidence of the genuineness of the relationship in circumstances where the victim of that violence, despite the violence, may have attempted to continue the relationship. I am satisfied the Tribunal has properly considered that claim as raised by the Applicant and I am unable to determine any error on the part of the Tribunal in the manner in which it has considered the material.
It follows for the reasons given that I am not satisfied that there is any jurisdictional error arising from the ground now relied upon in the Amended Application and that accordingly the application should be dismissed with costs.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 9 August 2007
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