Nguyen v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 224
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Nguyen v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 224
File number(s): PEG 220 of 2021 Judgment of: JUDGE TAGLIERI Date of judgment: 22 March 2023 Catchwords: MIGRATION – partner visa application – application for judicial review – where applicant alleged family violence by sponsor – whether the Tribunal correctly considered the evidence of family violence in determining the existence of a genuine spousal relationship – jurisdictional error not established – application for review dismissed Legislation: Migration Act 1958 (Cth) ss 5F,5F(2), 5F(2)(a), 5F(3), 65, 476
Migration Regulations 1994 (Cth) regs 1.15A, 1.15A(3), Schedule 2 cls 100.221, 820.211, 820.221(3)(b)(i)
Explanatory Memorandum, Migration Amendment (Subclass 100 and 309 Visas) Regulations 2022 (Cth)
Cases cited: AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133
Hanna v Minister for Immigration and Border Protection [2016] FCA 282
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323
Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; (2014) 309 ALR 67
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Citizenship v SZGUR [2011] HCA 1
Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Gupta [2022] FCAFC 51
MZZNK v Minister for Immigration and Border Protection [2015] FCA 217
Nguyen & Ors v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (unreported, High Court of Australia file no. C1/2022 dated 22 July 2022)
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Division: Division 2 General Federal Law Number of paragraphs: 61 Date of last submission/s: 21 November 2022 Date of hearing: 1 September 2022 Place: Hobart Counsel for the Applicant: Mr Boccabella Solicitor for the Applicant: DNG Lawyers and Migration Counsel for the First Respondent: Ms Francois Solicitor for the First Respondent: Sparke Helmore ORDERS
PEG 220 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: THI HOAI THU NGUYEN
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE TAGLIERI
DATE OF ORDER:
22 March 2023
THE COURT ORDERS THAT:
1.The application filed 21 October 2021 is dismissed.
2.The Applicant pay the First Respondent’s costs in the fixed sum of $7,853.00.
3.The name of the First Respondent is amended to Minister for Immigration, Citizenship and Multicultural Affairs.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
Judge Taglieri
On 21 October 2021, the Applicant filed an application in the Court for a review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) dated 21 September 2021. The application enlivens this Court’s jurisdiction pursuant to s 476 of the Migration Act 1958 (Cth) (“the Act”).
BACKGROUND
The Applicant is a non-citizen who applied for a Partner (Temporary) (Class UK) visa under s 65 of the Act on 5 December 2017, which was refused by a delegate of the First Respondent on 27 November 2018.
The Tribunal heard an Application for review of the delegate’s decision in two parts, taking evidence and hearing submissions on 27 January 2021 and 27 July 2021. At the hearings, the Applicant was assisted by a Vietnamese interpreter and represented by a migration agent.
On 21 September 2021, the Tribunal affirmed the decision of the First Respondent’s delegate to refuse the Protection visa.
BASIS OF TRIBUNAL DECISION
The Tribunal’s affirmation of the delegate’s decision was on the basis that the Applicant was not in a genuine spousal relationship with the sponsor at the time of the application,[1] as defined in s 5F of the Act with reference to reg 1.15A of the Migration Regulations 1994 (Cth) (“the Regulations”).
[1] Tribunal reasons at [80] to [81].
Due to the above finding, the Tribunal did not proceed to address the Applicant’s claims relating to family violence under cl 820.221(3)(b)(i) of Schedule 2 of the Regulations.[2]
[2] Tribunal reasons at [84].
The findings in relation to the existence of a spousal relationship between the Applicant and the sponsor, who was her husband, were influenced by the Tribunal’s assessment of the Applicant’s credit.[3] Particularly, the Applicant’s evidence relating to:
(a)The familial relationship with her husband’s father, including her description of him as a ‘housemate’ on her visa application rather than a relative and her statement that no family attended her wedding when her husband’s father was present;[4] and
(b)Inconsistencies about lease of a residential property, including sworn statements that she had ‘moved in’ to the address on her visa application when she had in fact not and, on the Tribunals’ findings, had no genuine intention to do so.[5]
[3] Tribunal’s reasons at [27].
[4] Tribunal’s reasons at [28] and [29].
[5] Tribunal’s reasons at [31] to [37].
The issues for the Tribunal to decide were clearly stated in its reasons at [39] as:
… whether, at the time of application, the applicant was the spouse or the facto partner, as defined, of the sponsor. If so, the issue for the Tribunal to determine will be whether, at the time of the decision, the applicant’s relationship with the sponsor had ceased and the applicant had suffered family violence.
The Tribunal’s consideration of the nature of the Applicant’s relationship with her husband addressed the considerations outlined in reg 1.15A(3). It found that:
(a)The Applicant and her husband were married;[6]
(b)The financial arrangements of the Applicant and her husband were not demonstrative of a genuine spousal relationship.[7] This is on the bases that there was no evidence of a genuine financial relationship and that joint finances were to meet visa requirements rather than a genuine pooling of resources;[8]
(c)The household arrangements were neutral;[9]
(d)The social aspect of the Applicant and her husband’s relationship was not demonstrative of a genuine spousal relationship.[10] This took into account the evidence of the Applicant’s friends,[11] photos of the Applicant and her husband together,[12] and their attendance at social events.[13] In particular, the Tribunal placed significant weight on the lack of recognition of the Applicant and her husband’s relationship by their families;[14] and
(e)The commitment to the relationship of the Applicant and her husband was not demonstrative of a genuine spousal relationship, as her husband’s drug use inhibited the emotional support and companionship he could offer the Applicant and there was no indication of shared goals.[15]
[6] Tribunal’s reasons at [42].
[7] Tribunal’s reasons at [52].
[8] Tribunal’s reasons at [44] to [52].
[9] Tribunal’s reasons at [52] to [56].
[10] Tribunal’s reasons at [71].
[11] Tribunal’s reasons at [63] to [66] and [69].
[12] Tribunal’s reasons at [58] and [59].
[13] Tribunal’s reasons at [60].
[14] Tribunal’s reasons at [70] and [71].
[15] Tribunal’s reasons at [75] and [76].
Having considered the evidence and made its findings, the Tribunal acknowledged that the Applicant would have had difficulty in obtaining evidence of the relationship after it ended due to the claimed family violence perpetrated by her husband.[16]
[16] Tribunal’s reasons at [78].
COURT REVIEW
A review to this Court is authorised by s 476 of the Act. In order to succeed and obtain the relief sought the Applicant needs to demonstrate jurisdictional error by the Tribunal. What constitutes jurisdictional error is usefully described in Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [82].
The Application for judicial review of the Tribunal’s decision came before me for hearing on 1 September 2022. Both the Applicant and the First Respondent were represented by Counsel. In addition to relying on written submissions filed by the parties,[17] extensive oral submissions were made.
[17] Applicant’s Outline of Summary filed 24 March 2022; First Respondent’s Outlines of Submissions filed 21 March 2022 and 1 August 2022.
As is customary, the parties agreed that the Court should have regard to the documents before the Tribunal and in the Court Book filed by the First Respondent,[18] in so far as they were relevant to the contentions made.
[18] Filed in these proceedings on 15 December 2021.
The Application for Review filed 21 October 2021 raises one ground for review, being:
1.The Tribunal denied the Applicant procedural fairness and / or breached s425 of the Migration Act.
Particulars
The Tribunal adopted a very narrow and erroneous view of the relationship and concluded that it is not a genuine relationship. The Tribunal placed no weight on the corroborating evidence provided.
APPLICANT’S CASE
The terms of the single ground of review were general and did not reveal the basis of jurisdictional error asserted with particularity. Despite this, detailed written contentions had been exchanged by the time of the hearing before the Court.
The oral submissions on behalf of the Applicant at the hearing explained and expanded upon the written submissions. Counsel for the Applicant submitted that the considerations in reg 1.15A of the Regulations are non-exhaustive and, given the evidence before the Tribunal about the Applicant being exposed to family violence, the Tribunal was required to examine the considerations in the regulation “through the prism of family violence”.
Counsel referred to the Court to amendments to the Regulations in 2022, which recognised that some spouse or de facto partner relationships end due to domestic and family violence, so that where it is committed by a sponsoring partner, it would be contrary to human rights to deprive an applicant of a visa.[19]
[19] Explanatory Memorandum, Migration Amendment (Subclass 100 and 309 Visas) Regulations 2022 (Cth).
It was contended that the Tribunal misunderstood and misapplied the provisions of s 5F of the Act, reg 1.15A of the Regulations and cl 820.211 of Schedule 2 of the Regulations.
Counsel for the Applicant drew the Court’s attention to the Tribunal’s reasons at [84], stating that jurisdictional error is found in the Tribunal’s failure to consider the Applicant’s claim of family violence. He submitted that the tenor of the whole case put by the Applicant was that the relationship was coloured by family violence and so the Tribunal should have examined the considerations in reg 1.15A of the Regulations via the prism of family violence and the evidence before it about that family violence.
The Court was taken to the social work assessment report dated 2 August 2020. In particular, at [26] which states as follows:[20]
By the end 2018, [the Applicant] felt she was trapped in a pattern of behaviour she could not escape from. [Her Husband] would request money, continue illicit substance use and either threaten or assault [the Applicant]. [The Applicant] decided she could no longer continue to live in a heightened state of threat and fear. [The Applicant] moved out when he was not at home. She changed her contact number and closed all her social media accounts. [Her Husband] tried to contact her and informed her if she was found, he threatened to kill her.
[20] Court Book at page 441.
Counsel for the Applicant acknowledged [27] of the Tribunal decision, noting that the adverse credit finding about the Applicant’s evidence was a weakness in her case. Nevertheless, he submitted that the Tribunal also found that the Applicant’s marriage was valid and s 5F(2)(a) of the Act was satisfied.
Counsel for the Applicant took the Court through relevant passages of the Tribunal reasons for decision and submitted it was difficult to ascertain what findings of fact the Tribunal had made. Despite this, Counsel said that the terms of the Tribunal’s reasons at [45] and [51] were findings of fact and that, when read together with the reasons at [73], appear to convey that the Tribunal accepted that the Applicant and her husband lived together in the same house as husband and wife in December 2018. This, he submitted, was corroborated by [26] of the social worker’s report quoted at [20] of these reasons.
It was submitted that the Tribunal’s reason at [73] and [75] represented acknowledgement that it accepted that the Applicant and her husband had lived together until December 2018. In those circumstances, there was an obligation to assess the considerations in the Regulations and Schedule 2 in the context that the Applicant claimed to have suffered family violence.
This is not to say that there was an obligation to make findings about family violence, but instead that the assessment of the evidence relied upon by the Applicant necessitated the Tribunal having in mind the claimed existence of family violence and how that impacted the quality of the evidence.
It was said that the Tribunal’s fact finding about the mandatory considerations in the Regulations was infected by the failure to have regard to the family violence evidence. Accordingly, the reasons and the findings recorded in them show that the Tribunal did not consider materially relevant factors, contrary to that required by High Court authority.[21]
[21] Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 at [24] and Nguyen & Ors v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (unreported, High Court of Australia file no. C1/2022 dated 22 July 2022) at [25].
FIRST RESPONDENT’S CASE
Counsel for the First Respondent elaborated upon the written submissions filed on 21 March 2022 and 1 August 2022. She submitted that there was a distinction between being married and the meaning of a spouse for the purpose of s 5F of the Act.
I was referred to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Gupta [2022] FCAFC 51 (“Gupta”) as being representative of the two limb approach established by the authorities.[22]
[22] Gupta at [43] to [48]; Hanna v Minister for Immigration and Border Protection [2016] FCA 282 at [23].
The First Respondent accepted that the Tribunal had to consider the evidence of family violence relied upon when considering the genuineness of the Applicant’s relationship with her husband, but that was distinct from what was required in the second limb which is whether at the time of decision the criteria in c 820.221 of Schedule 2, was satisfied.
Counsel took the Court to each part of the Tribunal’s decision where it is said that the Tribunal carried out its statutory function according to law. It was submitted that in the Tribunal’s reasons at [9], [11] and [12], the Tribunal recited the materials relied upon about the considerations in reg 1.15A of the Regulations.
Further, Counsel submitted that the Tribunal correctly stated, at [15] of its reasons, that a determination as to whether the Applicant was the spouse of the sponsor is required before it can be determined if that spousal relationship ceased and the family violence exception was met.[23]
[23] Gupta.
Counsel for the First Respondent referred to the Tribunal’s reasons following from [42] and submitted that the Tribunal noted the evidence about the mandatory considerations in reg 1.15A of the Regulations and followed with analysis and findings as to the nature of the relationship, but ultimately was not satisfied the relationship was genuine.[24]
[24] Tribunal’s reasons at [71].
The First Respondent’s Counsel highlighted in response to submissions made on behalf of the Applicant that:
·In the Tribunal’s reasons at [73], the Tribunal rejected the Applicant’s claim to be in a married relationship;
·The Tribunal’s reasons at [74] show that the member was completely aware of the evidence about family violence and considered it;
·However, a large factor influencing the Tribunal was that there was no indication of a shared commitment between the Applicant and her husband as required by reg 1.15A(3)(d) of the Regulations;
·The Applicant had not put forward the evidence of family violence to explain much at all; and
·Family violence was analysed and considered by the Tribunal, but not in the way the Applicant wants.
Further, while the First Respondent accepts the principles relied upon by the Applicant in Nguyen & Ors v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (unreported, High Court of Australia file no. C1/2022 dated 22 July 2022) at [26] to [30] and Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17, the Tribunal did not fail to consider an aspect of the Applicant’s case.
Applicant’s submissions in reply
The Court was invited to read the judgement in Sok v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 144 FCR 170 (“Sok”), particularly at [19] to [27]. Counsel for the Applicant submitted that the Court’s reasons in the judgment were insightful, conveying that family violence includes damage to psychological health, that men and women will stay in abusive relationships and still have a mutual commitment in the continuous hope that the relationship will get better, but at some stage the relationship becomes intolerable.
Counsel submitted that the psychological aspect of family violence discussed in Sok accounts for the lack of evidence of a genuine financial relationship raised in the Tribunal reasons at [47] and [50], and only by considering the evidence in that context could the Tribunal properly assess the claim. Similarly, rather than making adverse credibility findings against the Applicant for her evidence about her father-in-law and concluding “she’s a liar”, her evidence must be viewed through the prism that she was “under siege” by domestic violence.
INVITATION TO CLARIFY APPLICANT’S CASE
I had concern that the ground of review and submissions of the Applicant did not identify what mandatory considerations or other relevant factors were allegedly “not considered through the prism or evidence concerning family violence”.
Consequently, I made an order giving leave to the Applicant to file and serve particulars and further granted leave to the First Respondent to file and serve a response to those.
On 9 September 2022, the Applicant’s Counsel purported to file submissions in compliance with the order I had made on 1 September 2022 about provision of further particulars. The First Respondent filed a submission in response on 23 September 2022 and the Applicant then sought to file replying submissions. The particulars which the Applicant filed on 1 September 2022 were not consistent with the terms of my order, and all of the further submissions were of no particular assistance to the Court. Accordingly, I convened a case management hearing on 5 October 2022.
On 5 October 2022, I expressed concern to Counsel about what had been filed as described at [38] and clarified what was required by the order I had made on 1 September 2022. In particular, I indicated that the order had not been an invitation to make extensive further written submissions repeating the tenor of earlier submissions, which is what the document filed on 9 September 2022 seemed to do.
Consequently, I made a further orders to ensure clarity as to what the Applicant had been given leave to do on 1 September 2022. The further orders made were:
1.Within 14 days of the date of these Orders, the Applicant file and serve precise particulars of its grounds of application, meaning that the Applicant identify by reference to paragraph numbers in the Tribunal reasons for decision, each finding about the mandatory considerations in Regulation 1.15A of the Migration Regulations 1994 (Cth) which failed to take into account evidence of family violence said by the Applicant to exist in the relationship, by reference to pages of the Court Book.
2.Within 14 days of service on the First Respondent of the Applicant’s precise particulars pursuant to Order 1, the First Respondent file a response.
[original emphasis]
As I had stated at the case management hearing on 5 October 2022, I have not considered the submissions filed on 9 September 2022, 23 September 2022 and those emailed to my Chambers by the Applicant on 5 October 2022 because they were not in accordance with the order made on 1 September 2022.
ADDITIONAL PARTICULARS AND SUBMISSIONS OF THE PARTIES
Subsequently the parties complied with the orders made on 5 October 2022 and I have considered their Particulars and Response.[25]
[25] Applicant’s Particulars filed 7 November 2022 and First Respondent’s Response filed 21 November 2021.
The Applicant’s further particulars were:
the financial aspects of the relationship
Reg 1.15A(3)(a)[The Applicant] assaulted by husband, he would not call an ambulance because it would cost $800
Not mentioned in [the Tribunal] decision therefore it can be inferred not considered material by the [the Tribunal][Court Book] 620 para 19
[The Applicant] refused to give husband money, [the Applicant] pushed & beaten by husband, she was about to call police but husband snatched phone from her and strangled her
Not mentioned in [the Tribunal] decision therefore it can be inferred not considered material by the [the Tribunal][Court Book] 620 Para 20
[The Applicant] complained to husband about her father-in-law’s controlling behaviour over household expenses, husband refused to help, ie not turning on heater in winter, no long baths.
Husband: “He is my father, and I cannot do anything about it. Just ignore him, keep quiet and do not make matters worse”
Not mentioned in [the Tribunal] decision therefore it can be inferred not considered material by the [the Tribunal]
Social Worker’s report at paragraphs 18,19[Court Book] 617, 618
Para 6, 10
[Court Book] 630/1
Para 28, 29, 30nature of the household
Reg 1.15A(3)(b)Failed to grapple with the controlling aspect of husband’s father-in-law and husband’s refusal to deal with it eg:
The fraudulent issue of [the father-in-law] not being revealed as the father (para 4 [Court Book] 617)
[The Tribunal] failed to view this as an aspect of the controlling paradigm of the husband’s family violence behaviour ie in effect husband says put up with my father I will not support you[Court Book] 630/1
Para 28, 29, 30the nature of the persons’ commitment to each other
Reg 1.15A(3)(d)The concept of family violence is not binary in the sense that it exists one day and not the next. [The Tribunal] ought to have understood the continuum of family violence in the sense that aspects of family violence may have existed prior to the date of visa application not sufficient to lead to relationship breakdown but is still part of the effect of family violence on the relationship which culminated in the relationship being such that the applicant should
not be required to remain in it in order to be granted a visa.
Pregnancy terminated in Dec 2015 at husband’s insistence not seen by the [the Tribunal]
as part of the continuum of family violence
Husband used money in joint account to buy drugs
[The Tribunal] did not see the drug addiction issue as a continuum of the psychological aspects of family violence, not referred to in [the Tribunal]’s decision as an aspect of family violence.
The drug addiction issue was further explained by [the Applicant] at paragraphs 29 to 39 [Court Book] 523/4
See also the psychologist’s report at paragraphs 12, 13, 14, 15, 16, 21 22 [Court Book] 470-4
Social worker’s report paragraphs 15-17, 21,22, 23 – 26 [Court Book] 440-1 & para 37 [Court Book] 443[Court Book] 636 Para 75
[Court Book] 633 para 47
[Court Book] 5556 para 18, 19
And the accompanying submissions were that:
The above particulars supplement the applicant’s primary submission that the family violence issue needs to be considered in an holistic way in the sense that family violence creates a prism through which the relationship has to be seen.
Unsatisfactory aspects of a relationship can be explained by family violence within the relationship. In the applicant’s case the [the Tribunal]’s error is that it failed to view the relationship as a whole through the prism of family violence committed by the husband.
Counsel apologies for the lateness of the lodgement of these particulars, there were some practical issue with the loss of the paper version of the brief (which had been marked up with the particulars) on return from overseas.
The First Respondent’s submissions were that:
1.These further submissions respond to the applicant’s “particulars” of her grounds of review filed on 7 November 2022.
2.The applicant’s new purported particulars do no more than recite very specific incidents of alleged family violence which the applicant claimed to have occurred. However, such “particulars” appear to assume that violence between a man and a woman must prove there was a spousal relationship within the meaning of the Act. Such a proposition is clearly wrong.
3.The Tribunal found the applicant was not in a spousal relationship and thus the specific question of family violence did not arise. None of the specific incidents set out in the new “particulars” could be “critical” to determining whether a spousal relationship existed and, as set out in the Minister’s submissions of 1 August 2022, the Tribunal had expressly considered the claimed circumstances of family violence in concluding there was no spousal relationship at the time of the application.
4.The application should be dismissed with costs.
EVALUATION
It is beyond contention that this Court must follow the authority of the Federal Court insofar as it relates to the question of statutory construction of the Regulations. Accordingly, it is beyond question that the Tribunal was only required to consider and decide if the Applicant had suffered family violence committed by the sponsoring partner for the purposes of being satisfied of the time of decision criteria in cl 820.221 of Schedule 2 of the Regulations.
Although the Federal Court authorities to which the Court was referred dealt with cl 100.221 of Schedule 2 to the Regulations (subclass 100 Partner Visa), the terms of cl 820.221 of Schedule 2 of the Regulations (subclass 820 Partner Visa) are in relevant respects the same. Accordingly, there is no basis to argue that those authorities do not apply to this case and indeed that was not argued.
However, it appears abundantly clear to me that the contest between the parties was not in respect of the construction or operation of cl 820.221 in this case.
The crux of the Applicant’s contentions is that the Tribunal committed jurisdictional error in the first limb of the two limb approach required per Gupta. That is, when considering and determining whether prior to when the Applicant claims the relationship ceased, she and her husband were in a married relationship within the terms of s 5F(2) and (3) of the Act.
The Applicant’s contentions, in my view, distil into two fairly simple propositions:
·First, reg 1.15A (2) and (3) of the Regulations provide a non-exhaustive list of mandatory considerations for the purpose of determining whether persons are in a married relationship as defined in s 5F of the Act, and the evidence of family violence experienced by the Applicant was an additional consideration to be taken into account for that purpose; and
·Second, the evidence of family violence ought to have been considered in order to properly evaluate the Applicant’s evidence about the considerations in reg 1.15A(3) of the Regulations for the purpose of reaching a conclusion about whether the s 5F definition was satisfied.
Having carefully considered the contentions on the Applicant’s behalf, I regret that I cannot accept them. In essence, the Applicant asks the Court to conclude that, because certain statements and documents relied upon concerning family violence were not mentioned in the Tribunal’s reasons, they were not considered and therefore family violence and how that gave context or “colour” to the findings necessary about the mandatory considerations must have been ignored.
However, the authorities are clear that:
(a)Not all evidence needs to be referred to by the Tribunal in its reasons and the fact that some evidence may not have been expressly noted, does not mean it was not considered;[26] and
(b)It is for the Tribunal and not the Court decide whether the Applicant has satisfied the requirements for grant of a relevant visa and this Court cannot embark on merits reconsideration.[27]
[26] Minister for Immigration and Citizenship v SZGUR [2011] HCA 1 at [31]. See also Minister for Immigration and Border Protection v SZSRS (2014) 309 ALR 67 at 75.
[27] MZZNK v Minister for Immigration and Border Protection [2015] FCA 217 at [48].
As the First Respondent has submitted, there is sufficient reference in the Tribunal’s reasons to the claims and evidence of family violence on which the Applicant relies to reasonably convey that the Tribunal was aware of it and of how that may have explained “weaknesses” the Tribunal perceived in evidence relied upon about the considerations in the Regulation. In my view, the Tribunal’s reasons at [78] demonstrate this.
In addition, it is clear from the Tribunal’s reasons that it was not satisfied of the marriage being genuine, collectively because:
(a)There was an absence of supportive evidence about the mandatory considerations in the Regulations in the earlier visa application, when the claim of family violence was not made and before it is alleged to have occurred;
(b)The absence of independent or impartial corroborative evidence; and
(c)The adverse credit findings made about the Applicant.
Addressing the specific particulars of what considerations were allegedly not considered through the prism of the evidence of family violence,[28] I accept the written submissions of the First Respondent dated 21 November 2022 at [2], namely:
The applicant’s new purported particulars do no more than recite very specific incidents of alleged family violence which the applicant claimed to have occurred. However, such “particulars” appear to assume that violence between a man and a woman must prove there was a spousal relationship within the meaning of the Act. Such a proposition is clearly wrong.
[28] Filed 7 November 2022.
It is pertinent to observe that violence between people occurs in many different contexts: between strangers, housemates, families, acquaintances, and even friends. Regrettably, human nature is such that violence exists in many communities and contexts.
Furthermore, because the Tribunal rejected the reliability of the Applicant as a credible witness, it can be safely be inferred that it did not likely accept the veracity of the particularised incidents of family violence claimed to have occurred.
A differently constituted Tribunal may have treated the Applicant’s evidence more favourably in making findings of fact about the mandatory considerations, or may not have made adverse credit findings. However, this possibility does not demonstrate jurisdictional error.[29]
[29] Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [28].
In addition, I note the binding authorities which stand for the legal principles that it is the function of the Tribunal as the merit decision maker, not the Court to make findings about satisfaction of the statutory criteria and credit: see AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133 at [41], Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at [78], and Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437.
In the context of this case, it was for the Tribunal to make the required findings of a fact and be satisfied of the prerequisites to grant of the visa. The reasoning in the Court’s judgment does not condone domestic or family violence in any manner, instead it reflects its statutory function under s 476 of the Act, which is confined to assessing the purported jurisdictional error.
The Application for Review is dismissed for the foregoing reasons.
I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Taglieri. Associate:
Dated: 22 March 2022
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