Oyeniyi v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 440
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Oyeniyi v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 440
File number(s): MLG 2012 of 2018 Judgment of: JUDGE A KELLY Date of judgment: 6 June 2022 Catchwords: MIGRATION – Application for judicial review of decision of Administrative Appeals Tribunal – Partner (Migrant) (Class BC) visa – partner visa – valid claim of family violence accepted – claim not made out – whether decision of Tribunal affected by unreasonableness or irrationality – application dismissed. Legislation: Migration Act 1958 (Cth), ss 65, 375A, 378
Migration Regulations 1994 (Cth), reg 1.23, Sch 2 cl 100.221Cases cited: Craig v South Australia (1995) 184 CLR 163
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476Division: Division 2 General Federal Law Number of paragraphs: 50 Date of hearing: 26 May 2022 Place: Melbourne Applicant: In person Solicitor for the first respondent: Clayton Utz
Counsel for the first respondent: Mr C.E.A. Hibbard
ORDERS
MLG 2012 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ADEGBOYEGA CYRUS OYENIYI
Applicant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE A KELLY
DATE OF ORDER:
6 JUNE 2022
THE COURT ORDERS THAT:
1.Pursuant to ss 202-203 of the Federal Circuit and Family Court of Australia Act 2021 (Cth), direct that the parties be allowed to appear and to make submissions before the Court by video and audio link.
2.The name of the first respondent be amended in the title of the proceeding to Minister for Immigration, Citizenship and Multicultural Affairs.
3.The application dated 11 July 2018 be dismissed.
4.The applicant pay the costs of the first respondent fixed in the sum of $7,853.
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
KELLY A, J
Introduction
By originating application dated 11 July 2018, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 14 June 2018 affirming a decision of a delegate of the first respondent (Minister) refusing to grant a Partner (Migrant) (Class BC) visa (visa) pursuant to s 65 of the Migration Act 1958 (Cth) (Act).
This matter concerns the refusal of the visa application on the basis the applicant did not meet cl 100.221 of the Migration Regulations 1994 (Cth) (regulations) by reason that the Minister was satisfied the applicant’s relationship with the sponsor had ceased and, contrary to his claim, he had not suffered family violence prior to the cessation of the relationship.
Before me, the applicant presented as an honest and decent man who simply expressed his desire to remain in Australia. He told me that he was entirely unsure why his relationship with the sponsor had failed. I was told the parties had met in a share house in Cranbourne and that she was a hot-headed woman for whom he had provided everything. The applicant explained that he had travelled to Nigeria to care for his aged parents who had now passed. Part of the problem in the parties’ relationship appeared to be that the former spouse had been resentful she had not been able to accompany him to Nigeria on this extended trip. Later, he had been completely surprised by the statement from his spouse that the relationship was over and that he should not call her again, but he decided to return to Australia to see if he could repair the relationship. Before this time it had emerged that the former spouse was in a new relationship. When he did so and travelled to the former matrimonial home in Mansfield he met his former mother-in-law who was equally clear in her advice the relationship was over.
The applicant stated that he has worked in aged care for the past 10 years which he finds a fulfilling and rewarding occupation. He has remarried to a Nigerian who is presently seeking to secure Australian residency. The applicant asked that he be allowed to remain in Australia.
Background
The background below is adopted from the Minister’s submissions and gleaned from my examination of the materials in the court book and those documents.
The applicant a male citizen from Nigeria now aged 61 years first came to Australia in 2005 holding a Business (Short Stay) visa (Subclass 456) valid for one month for the purposes of attending a conference.
On 11 November 2005, the applicant applied for a protection visa that was refused on
14 December 2005. His subsequent application to review that decision was made to the then Refugee Review Tribunal which was also unsuccessful. The applicant made a request to the Minister pursuant to s 417 of the Act. The Minister declined to make a decision in favour of the applicant.
In June 2007, the applicant and sponsor met when they were living in shared accommodation and commenced a de facto relationship in August that same year. The applicant and sponsor moved to different shared accommodation together and then rented a home. In October 2007, the sponsor suffered an ectopic pregnancy. On Christmas Day in 2007, the sponsor introduced the applicant to her mother and other family members. On 2 May 2009, the applicant and sponsor married and commenced a spousal relationship. In June 2009, the applicant and sponsor moved in with the sponsor’s mother after the lease on their house in Oakleigh expired. From July to October 2009, the applicant resided with the sponsor in Mansfield.
In October 2009, the applicant departed Australia for Nigeria; this decision was made against the wishes of the sponsor who wanted to go with him. Prior to his departure, the parties planned to apply for a partner visa and instructed their representative to lodge an application with the then Department of Immigration and Citizenship (Department).
On 17 May 2010, the applicant applied for a Partner (Provisional) (subclass 309) visa (provisional visa). He nominated his spouse as his sponsor.
From February 2011, the sponsor commenced a new relationship with a person named ‘Michael’. The applicant was notified of this development while in Nigeria in circumstances where he telephoned the sponsor in which she declared she no longer loved him and hung up. After telephoning her again, Michael answered the call and notified the applicant that he and the sponsor were in a relationship. After being notified of this development, the applicant decided to return to Australia to attempt to salvage his marital relationship.
On 18 March 2011, the applicant was granted a provisional visa.
On 25 April 2011, the applicant returned to Australia where he was detained upon arrival by customs officials. The customs officials contacted the sponsor who told them that she did not know the applicant. In May 2011, after being rebuffed by the sponsor from attempts at reconciliation, the applicant accepted the relationship between him and the sponsor had ceased.
On 24 April 2014, the applicant applied for the visa. He did so seeking to rely on cl 100.221(4) of Sch 2 to the regulations, which allows the Minister to grant a visa to an applicant whose relationship with a sponsor has ceased, but the applicant has suffered family violence committed by the sponsor. The claimed family violence was essentially verbal abuse by the sponsor relating to money the applicant owed to the sponsor’s parents, and the couple’s financial circumstances.
By letter dated 19 January 2015, a delegate of the Minister informed the applicant that, in accordance with reg 1.23(10)(c) of the regulations, the delegate had referred the applicant’s claim of family violence to an independent expert.
On 16 February 2015, the independent expert determined that the applicant had not suffered relevant family violence.
On 23 April 2015, the Minister refused to grant the visa. The Minister found that, at the time of making the decision, the applicant had not suffered relevant family violence and accordingly did not meet the criteria for the grant of the visa.
Thereafter the Tribunal made two decisions in relation to the application for review.
Tribunal decision, #1
On 11 May 2015, the applicant lodged an application for review of the decision by the Tribunal attaching the refusal letter of the visa application and the decision record of the Minister.
On 12 December 2016, the applicant attended a Tribunal hearing, doing so with the assistance of a representative and evidence being taken orally by a witness. On 16 December 2016, the Tribunal referred the matter to an independent expert for consideration. On 11 January 2017, the independent expert provided a report to the Tribunal, dated 9 January 2017, stating her opinion that the applicant had not suffered relevant family violence
On 2 February 2017, the Tribunal made a decision affirming the Minister’s decision to refuse to grant the visa and provided a statement of reasons for doing so.
Tribunal decision, #2
On 2 March 2017, the applicant applied successfully to the then Federal Circuit Court for judicial review of the Tribunal’s decision. On 18 July 2017, the Federal Circuit Court set aside the Tribunal’s decision by consent and remitted the matter to the Tribunal for reconsideration according to law. The orders were made on the basis that the Tribunal had failed to disclose to the applicant the existence of a certificate made under s 375A (Certificate) of the Act, and had thereby failed to afford the applicant procedural fairness.
On 12 December 2017, the Tribunal invited the applicant to attend a hearing scheduled for
12 February 2018. The Tribunal attached a copy of the Certificate which was contained on the Department file. The hearing was later rescheduled to 23 April 2018, which the applicant attended.
On 24 April 2018, the Tribunal invited the applicant to comment on the independent expert’s report. On 8 May 2018, by email to the Tribunal, the applicant’s representative responded to the independent expert’s report. The representative asserted that the applicant had submitted “[e]vidence of this ongoing abuse… on 17 April 2018” and that that evidence had not been considered by the independent expert.
By email dated 18 May 2018, the Tribunal invited the applicant to comment on the documents contained at folios 68-70 of the Department file, which the member had decided to disclose, despite their being covered by the Certificate.
By email dated 31 May 2018, the applicant’s representative responded stating, among other things, that the date of the cessation of the applicant's marriage was 27 May 2011.
On 14 June 2018, the Tribunal made a decision to affirm the decision under review to refuse the visa application and provided a statement of reasons (Reasons) for doing so notifying the applicant the day after. At [55] to [56] of its Reasons, the Tribunal found the applicant had not suffered relevant family violence and did not meet cl 100.221(4)(b) and (c).
In coming to its decision, the Tribunal:
(a) noted there was a Certificate on the Department’s file, as noted in relation to folios 57, 58 and 60, covering information given by the sponsor, the “general gist” of the information was put to the applicant and, as such, found the Certificate was valid and that those documents should not be disclosed [10]–[13];
(b)noted the Tribunal had determined the Certificate was not valid in relation to folios 68-72 of the Department file and that it had disclosed the documents to the applicant after the hearing. The Tribunal noted the applicant’s response [14]-[16], [24];
(c)noted the Tribunal had provided the independent expert’s report to the applicant [17];
(d)considered the evidence surrounding the cessation of the applicant’s relationship with the sponsor [20]–[23], [25], [26];
(e)set out the relevant law for a non-judicially determined claim of family violence and found the applicant had provided the requisite evidence under that law [27]–[37];
(f)considered the applicant’s claim to have suffered family violence and noted the independent expert’s report and the applicant’s response to the report [38]–[50];
(g)stated that the report found the relationship had ceased in February 2010 [52]; and
(h)set out and accepted the evidence in the report that the applicant had not suffered family violence [53]-[54].
Procedural history
On 11 July 2018, the applicant filed an application for review of the Tribunal’s decision advancing two particularised grounds of review together with an affidavit sworn by him exhibiting a copy of the Minister’s decision record and second decision of the Tribunal.
By a response filed on 3 August 2018, the Minister opposed the application on a show cause basis and sought orders the application be dismissed with costs.
On 12 November 2019, a registrar of the Court made orders detailing the timeline for the filing of documents and that the matter be listed for final hearing on a date to be advised.
On 5 May 2022, the lawyer for the applicant filed a notice of withdrawal from acting for the applicant in the proceedings.
The first respondent filed written submissions on 12 May 2022. With reference to the applicant’s first ground, the respondent asserted the date of the cessation of the relationship was irrelevant in respect to his family violence claim. For the applicant’s second ground of review, the respondent asserted the Tribunal’s conclusion was not irrational or unreasonable because their findings were based on the applicant’s own evidence.
Judicial review
If the decision is a privative clause decision, it is not amenable to judicial review: Act, s 474(2). A decision upon the merits review of a visa application is not amenable to judicial review unless it is vitiated by jurisdictional error: Act, s 474(1)(c), 476(2)(b); Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476, [76].
The process of judicial review is not an appellate procedure enabling a general review of the decision or the substitution of a decision which the Court may consider ought to have been made. The jurisdiction, being supervisory, is to quash a decision on established grounds, the most important of which is jurisdictional error, and where appropriate, to order that the matter be remitted and reconsidered according to law: Craig v South Australia (1995) 184 CLR 163, 175 (Brennan, Deane, Toohey, Gaudron and McHugh JJ).
Legislative framework
The criteria for the grant of the visa were contained in cl 100 of Schedule 2 to the regulations. Clause 100.211(2)(b) (and cl 100.211(2A)(b)) state:
100.221
(1) The applicant meets the requirements of subclause (2), (2A), (3), (4) or (4A).
(2) The applicant meets the requirements of this subclause if:
(a) the applicant is the holder of a Subclass 309 (Partner (Provisional)) visa; and
(b) the applicant is the spouse or de facto partner of the sponsoring partner; and
(c) subject to subclauses (5), (6) and (7), at least 2 years have passed since the application was made.
(2A) The applicant meets the requirements of this subclause if:
(a) the applicant is the holder of a Subclass 309 (Partner (Provisional)) visa which the Minister has decided, under section 345, 351, 417 or 501J of the Act, to grant to the applicant; and
(b) the applicant is the spouse or de facto partner of the sponsoring partner; and
(c) subject to subclauses (5), (6) and (7), at least 2 years have passed since the Minister made the decision mentioned in paragraph (a).
(3) The applicant meets the requirements of this subclause if the applicant:
(a) first entered Australia as the holder of a Subclass 309 (Partner (Provisional)) visa and continues to be the holder of that visa; and
(b) would meet the requirements of subclause (2) or (2A) except that, after the applicant first entered Australia as the holder of the visa mentioned in paragraph (a), the sponsoring partner has died; and
(c) satisfies the Minister that the applicant would have continued to be the spouse or de facto partner of the sponsoring partner if the sponsoring partner had not died.
(4) The applicant meets the requirements of this subclause if:
(a) the applicant first entered Australia as the holder of a Subclass 309 (Partner (Provisional)) visa and continues to be the holder of that visa; and
(b) the applicant would meet the requirements of subclause (2) or (2A) except that the relationship between the applicant and the sponsoring partner 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 partner or of the applicant or of both of them;
has suffered family violence committed by the sponsoring partner;
(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 partner:
(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.
Regulation 1.23(10)(c)(ii) of the regulations state that where the decision-maker seeks the opinion of an independent expert about whether a person has suffered family violence, the decision-maker “must take an independent expert’s opinion on the matter to be correct for the purposes of deciding whether the alleged victim satisfied a prescribed criterion for a visa that requires the applicant for the visa … to have suffered family violence”.
Ground 1 – material error as to date of cessation of relationship
Ground 1 of the application reads:
The Second Respondent unreasonably and irrationally drew an ultimate conclusion as to the date of cessation between the Applicant and Sponsor's relationship.
Particulars
a.The Applicant's spousal relationship ceased on 27 May 2011 and, at paragraph 21 of it's decisions, the Second Respondent states ‘I am satisfied that since May 2011 the applicant has accepted the relationship between him and the sponsor has ceased.’
b.Yet, the Second Respondent contradicts itself and concluding that the spousal relationship ceased in February 2011 at:
i.Paragraph 23: ‘I am satisfied that from February 2011 the applicant and sponsor did not have a mutual commitment to a shared life as husband and wife to the exclusion of all others. I am satisfied that from February 2011 the applicant and sponsor were not in a spousal relationship within the meaning of s.5(2)(b) of the Act’.
ii.Paragraph 25: ‘In s.5F(2)(b) it is required that is spousal relationship include a mutual commitment to a shared life as husband and wife to the exclusion of all others. Therefore, the Tribunal finds that when the sponsor commenced another relationship, which the Tribunal is satisfied occurred at the latest in Fairbury (sic) 2011, the parties did not continue to satisfy the requirement of mutual commitment to a shared life as husband and wife to the exclusion of others. The relevant date for the cessation of the relationship is not when the applicant accepts the relationship is over. The relevant date the spousal relationship ceases is when the relationship no longer meets the criteria in s.5F(2). The applicant sponsor did not continue to meet the criteria for a spousal relationship from February 2011’.
c.The Independent Expert's report has made an error of fact namely, the year that the applicant's spousal relationship ceased and therefore this report should be undermined. At:
i.Paragraph 52: 'I note the Independent Expert report refers to the relationship ceasing in February 2010; I assume the relevant date is February 2011, and I have read the report accordingly'.
ii.Paragraph 53: ‘The independent expert concluded "Mr Oyeniyi reported that he commenced the relationship with the sponsor in July 2007 and that the relationship ended on 26th of April 2011, however there is a question regarding the accuracy of this date as the couple did not have a mutually exclusive commitment to one another since February 2010. ..." '
On behalf of the Independent Expert, the Second Respondent has made a presumption of what the Independent Expert reported as the relevant year. The Second Respondent cannot assume the intentions (or non-intentions) of the year of the Independent Expert.
The substantive complaint made by Ground 1 concerned findings as to whether the relationship between the applicant and his former spouse had been in February or May 2011.
Resolution
The applicant contended the Tribunal had erred about when the applicant’s relationship with the sponsor ceased. The Minister submitted that whether or not the applicant was correct about the suggested error, it would have made no difference to the Tribunal’s conclusion and was no basis for a finding of jurisdictional error. I agree.
The criteria for the grant of the visa were contained in cl 100 of Schedule 2 to the regulations. Clause 100.211(2)(b) (and cl 100.211(2A)(b)) required that, at the time of the decision, the applicant “is the spouse or de facto partner of the sponsoring partner”.
The Minister correctly submitted it was the applicant’s own evidence that the relationship had ceased well before the 11 May 2011. The cessation of the relationship between that applicant and the sponsor was the premiss of the applicant’s claim to have suffered family violence. This had been done so as to engage cl 100.211(4). Again, whether the relationship had ended in February or May 2011 was irrelevant.
Addressing particular (c), the Minister submitted that pursuant to reg 1.23(10)(c)(ii) of the regulations a decision-maker “must take an independent expert’s opinion on the matter to be correct for the purposes of deciding whether the alleged victim satisfied a prescribed criterion for a visa that requires the applicant for the visa … to have suffered family violence”. The Minister submitted that the decision maker adhered to the opinion of the expert and was under no obligation to repeat an incorrect date reference in the report (which did not affect whether or not the applicant suffered family violence).
Even if the applicant successfully established family violence had occurred at the times alleged, the claim would not succeed because none of the instances of family violence occurred after his arrival in Australia.
Ground 1 is rejected.
Ground 2 – unreasonable or irrational conclusion as to ‘commitment’
Ground 2 of the application reads:
The Second Respondent unreasonably and irrationally drew a conclusion that the sponsor was not committed to a shared life with the applicant to the exclusion of all others prior to the cessation of spousal relationship on 27 May 2011.
Particulars
a.The Second Respondent ultimately concludes that the sponsor was in an extra-marital affair with an unverified person named ‘Michael’ at:
i.Paragraph 20: ‘I accept that in late 2010 or early 2011 when the applicant was attempting to telephone the sponsor she advised him that she no longer loved him and the relationship was over. I accept that the applicant tried to call the sponsor, and on occasions the call was answered by someone named ‘Michael’ who advised the applicant that he was the sponsor’s new partner.’
ii.Paragraph 21: ‘I accept the evidence of the applicant that he believed the sponsor had a new partner, the man ‘Michael’, who answered the phone when the applicant rang the sponsor. I accept the sponsor had commenced a new relationship at the time she advised the applicant that she no longer loved him and at the time that Michael was answering the phone when the applicant rang.’
iii.Paragraph 23: ‘The evidence in relationship to the time the sponsor commenced a new relationship is not clear. I have erred on the side of caution and I am satisfied that the very latest the sponsor commenced a new relationship in February 2011.’
Resolution
The relevant findings were made based on the applicant’s own evidence.
Those findings provided a rational basis upon which the Tribunal could properly draw an inference about the time at which the sponsor had commenced a new relationship and, accordingly, there was nothing unreasonable or irrational about those findings.
Ground 2 is rejected.
Conclusion
The application should be dismissed.
I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment of Judge A Kelly. Associate:
Dated: 6 June 2022
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