Parvin v Minister for Immigration

[2015] FCCA 302

FEDERAL CIRCUIT COURT OF AUSTRALIA

PARVIN v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 302

Catchwords:
MIGRATION – Review of Migration Review Tribunal decision – interlocutory dismissal of show cause application – no arguable case of jurisdictional error – on an application for a partner visa subject to the family violence criterion, the applicant must now establish that the relevant family violence occurred during the subsistence of the domestic relationship.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Amendment Regulations 2009 (No. 12) SLI 2009 No. 273
Migration Regulations 1994 (Cth)

Applicant: AIRIN PARVIN

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 1562 of 2014

Judgment of: Judge Driver

Hearing date: 12 February 2015

Delivered at: Sydney

Delivered on: 12 February 2015

REPRESENTATION

Solicitors for the Applicant: Mr N Kelvin

Solicitors for the Respondents: Ms K Hooper of DLA Piper

INTERLOCUTORY ORDERS

1. The Court notes the undertaking of the applicant’s solicitor to file a Notice of Appearance within seven days.

2. The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

3. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,326.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1562 of 2014

AIRIN PARVIN

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Migration Review Tribunal (Tribunal).  The decision was made on 14 May 2014.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant, Ms Parvin, a Partner (Migrant) (Class BC) visa.  The background facts relating to this matter are conveniently set out in the Minister’s outline of submissions. 

2. Ms Parvin applied for a Partner (Migrant) (Class BC) visa on 10 May 2009.[1]  Ms Parvin entered Australia on 16 June 2010 as the holder of a Provisional Spouse visa.[2] 

   [1] Court Book (CB) 1

   [2] See CB 76

3. On or about 16 July 2010, Ms Parvin's sponsor advised the Minister’s Department (Department) about the breakdown of the relationship between Ms Parvin and her sponsor.[3]  On 7 October 2010, the Department wrote to Ms Parvin notifying her of this communication.[4]

   [3] CB 80

   [4] CB 81

4. On or about 18 October 2010, Ms Parvin wrote to the Department claiming she had suffered domestic violence.[5]  By letter dated 5 April 2011, the Department wrote to Ms Parvin outlining the evidentiary requirements of such a claim.[6]

   [5] CB 82

   [6] CB 83

5. On or about 28 July 2011, Ms Parvin submitted to the Department three forms 1040 and other material. [7]  Apparently the two forms 1040 by competent persons did not satisfy the evidentiary requirements of the Migration Regulations 1994 (Cth) (Regulations). [8]

   [7] CB 98

   [8] In particular, neither of Ms Parvin’s two forms 1040 contained a statement by the deponent that Ms Parvin had in the competent person's opinion suffered family violence (regulation 1.26(c)).

6. On 9 February 2012, the Department wrote to Ms Parvin inviting her to comment on whether she would have continued to be the spouse of the sponsor, had the relationship not ceased.[9]  Ms Parvin provided a response on 13 March 2012.[10]

   [9] CB 118

   [10] CB 122

7. A delegate of the Minister refused the visa application on 13 September 2012.  The delegate found that Ms Parvin was not the spouse of the sponsor, as defined by regulation 1.15A, prior to the cessation of the relationship.[11]

   [11] CB 126

8. Ms Parvin sought review by the Tribunal, by application lodged on 4 October 2012.  Ms Parvin provided the Tribunal with a copy of the delegate's decision.[12]  Before the Tribunal Ms Parvin provided various items of documentary material.  They included two forms 1040 by competent persons Stefanie Rizel and Iian Cohen.[13]

   [12] See CB 140

   [13] See CB 193

9. On 8 April 2014, Ms Parvin's representatives provided a submission in support of the visa application.[14]  Ms Parvin's family violence claims pertained essentially to abandonment, and verbal abuse.  Ms Parvin attended a hearing before the Tribunal on 16 April 2014,[15] at which determinative issues were traversed.  On 5 May 2014, Ms Parvin’s representative provided a post hearing submission and supporting material, addressing the issue of the status of the relationship at the time of Ms Parvin’s arrival in Australia.[16]

   [14] CB 193

   [15] CB 442

   [16] CB 450

10. The Tribunal affirmed the decision of the delegate of the Minister not to grant Ms Parvin a Partner (Migrant) (Class BC) visa.[17] 

    [17] CB 473

11. The Tribunal identified the family violence claims made by Ms Parvin.  It found that it was required by regulations 1.23(12) and 1.23(13) to be satisfied that the violence or part of it occurred whilst the parties were in a relationship, at [28] (at [35], the Tribunal found it was satisfied that Ms Parvin had suffered family violence). 

12. The Tribunal found that any claimed family violence with respect to Ms Parvin did not occur whilst the parties were in a relationship, the Tribunal having found that the parties were not in a relationship from the date Ms Parvin arrived in Australia.[18]

    [18] at [34]-[35]

The present proceedings

1. These proceedings began with a show cause application filed on 10 June 2014.  There are two grounds in that application:

   1.      The making of the decision involved an error of law

   Particulars

   a. The Tribunal is required under r.1.23 (14) to be satisfied that the violence occurred while the married relationship existed.  The Tribunal applied the wrong criteria and assessed the sponsor’s actions or lack thereof to indicate that the Applicant was not in a married relationship when the violence occurred.

   [paragraph 33 of the MRT Decision Record]

   b. The Tribunal failed to apply the correct criterion which is to assess whether the violence occurred while the married relationship existed.  This assessment is independent of the sponsor’s lack of commitment.

   [paragraph 33 of the MRT Decision Record]

   c. That the Applicant and the sponsor were not in a spousal relationship within the meaning of that term in r.1.15A.

   [paragraph 34 of the MRT Decision Record]

   2. The making of the decision was an improper exercise of the power in that it failed to take a relevant consideration into account in the exercise of a power.

   Particulars

   a. The clinical psychologist Ilan Cohen stated that the Applicant suffered psychological harm which in his opinion meets the definition of family violence for the purpose of the Migration [R]egulations.

   [paragraph 24 of the MRT Decision Record]

   b. The Tribunal found that the relevant family violence identified by both the competent persons in their statutory declarations is the emotional and psychological trauma and harm experienced by the Applicant as a result of being abandoned by her sponsor when she came to Australia.

   [paragraph 27 of the MRT Decision Record]

2. The application is supported by an affidavit, filed with it.  I received the first four paragraphs of that affidavit as evidence, and the final two paragraphs as submissions.  I also have before me as evidence the court book filed on 31 July 2014. 

3. When this matter first came before me for directions, on 8 July 2014, Ms Parvin was legally represented.  Notwithstanding that, I listed the matter for a show cause hearing today.  Subsequently, Ms Parvin’s solicitor withdrew from the record.  That occurred in August 2014.  The Court had anticipated that Ms Parvin would be representing herself today, as there had been no notice of any alternative legal representation.

4. When the matter was called this afternoon, Mr Kelvin appeared for Ms Parvin.  He undertook to file a notice of appearance within seven days.  He sought an adjournment on the basis that he had only just been instructed, and had not had sufficient time in order to review the material and formulate arguments.  I declined to grant an adjournment on several bases:  in particular Ms Parvin had made her own choices in relation to her legal representation, and had had plenty of time to find alternative representation following the withdrawal from the record of her earlier solicitor.

5. Further, this is an interlocutory hearing, the purpose of which is to identify any arguable case of jurisdictional error by the Tribunal.  If such an arguable case can be identified, then the matter would be listed later for a final hearing.  In order to assist Mr Kelvin, I had the Minister’s solicitor proceed first, to explain the background to the matter, and to present submissions on why no arguable case had been advanced.  The solicitor for Ms Parvin had the opportunity to respond. 

6. Having heard the parties, I am persuaded that no arguable case arises from the application.  It is apparent that the Tribunal reached a more generous view than the Minister’s delegate, in circumstances which are very unfortunate for Ms Parvin.  The Tribunal was, however, required to apply the Regulations which, as amended, imposed a temporal limitation on the family violence exception to the partner visa criteria. 

7. In short, the Tribunal could not grant the permanent partner visa sought by Ms Parvin if the family violence, which had been demonstrated, occurred after her relationship with her husband had broken down.  The material before the Tribunal bearing upon that issue was not entirely consistent.  However, it is plain that the conclusion reached by the Tribunal was open to it, on the material before it, and the Tribunal correctly construed the Regulations. 

8. I otherwise agree with the Minister’s written submissions.

9. The additional “timing” requirement in the family violence provisions, including the provisions in subregulations 1.23(9), (12) and (14) was inserted by Migration Amendment Regulations 2009 (No. 12) SLI 2009 No. 273.  These Regulations commenced on 9 November 2009.  The relevant amendments are in Schedule 4. 

10. Regulation 6 provides when the amendments made by Schedule 4 apply in relation to an application for a visa made by an applicant: 

    Amendment of Migration Regulations 1994 -- Schedule 4

    (1) Schedule 4 amends the Migration Regulations 1994 .

    (2) The amendments made by Schedule 4 apply in relation to an application for a visa made by a person:

    (a)     if:

    (i)      the person (the applicant) made the application for a visa before 9 November 2009; and

    (ii)     the application was not finally determined (within the meaning of subsection 5 (9) of the Migration Act 1958 ) before 9 November 2009; and

    (iii)   the applicant claims to Immigration, on or after 9 November 2009 but before the application is finally determined, that family violence (within the meaning of regulation 1.23 of the Migration Regulations 1994 as in force on and after 9 November 2009) has been committed; or

    (b) if the person made the application for a visa on or after 9 November 2009.

11. Accordingly, the amendments applied to Ms Parvin. 

12. The amendments require that the family violence, or part of the family violence, must have occurred while the married or de facto relationship existed.

13. The Explanatory Statement to the regulatory amendments provides, at page 1, “Schedule 4 makes clear that in order to be granted a visa on the basis of family violence, the family violence, or part of the family violence, must have occurred while the married or de facto relationship was in existence”.

14. At pages 12-13, the Explanatory Statement provides:

    Item [3] – Regulation 1.23 This item replaces current regulation 1.23 with a new regulation 1.23 of the Principal Regulations. Subject to the addition below, the new regulation simplifies the previous regulation, while retaining the same operation. In addition the new regulation introduces the requirement, in new subregulations 1.23(2), 1.23(5), 1.23(7), 1.23(12) and 1.23(14), that the family violence, or part of the family violence, must have occurred when the married or de facto relationship was in existence. This reinforces that the purpose of the family violence provisions is to ensure that visa applicants are not required to remain in a relationship where family violence is occurring.

15. The Tribunal was correct to proceed on the basis that it was a factual question for it to decide whether relevant family violence, if accepted, occurred during the course of the spousal relationship.  

16. Ground 1 of the application alleges that the Tribunal erred in law, essentially by taking into account the sponsor's intentions and actions.  However this was a matter relevant to the Tribunal's assessment of fact, including its assessment of the existence of a mutual commitment to a shared life as husband and wife. 

17. Ground 2 alleges that the Tribunal failed to consider a relevant consideration, being, essentially, evidence of competent persons in support of Ms Parvin’s non-judicially determined claim to have suffered family violence.  The Tribunal expressly referred to and considered the evidence in question.

18. I conclude that Ms Parvin is not able to demonstrate any arguable case of jurisdictional error by the Tribunal. I will order that the application be dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

19. I do wish to add some further comments.  At [39] of its reasons,[19] the Tribunal drew attention to humanitarian considerations.  I do not know whether Ms Parvin has sought to pursue those considerations with the Minister or his Department.  Ms Parvin explained to the Tribunal her concern about having to return to Bangladesh as a single woman, who might be vulnerable there, and who has been humiliated by the treatment at the hands of her husband.  Those are matters that could properly be considered by the Minister and his Department, especially in circumstances where Ms Parvin might be minded to seek protection in Australia through an application for a protection visa.

    [19] CB 481

20. In consequence of the dismissal of the application, the Minister seeks an order for costs.  Ms Parvin may require time to pay.  I will not require payment of costs within any particular time.

21. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,326.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  19 February 2015