POKHAREL v Minister for Immigration

[2015] FCCA 2714

FEDERAL CIRCUIT COURT OF AUSTRALIA

POKHAREL v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2714

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration and Refugees Division) – Partner (Temporary) class UK visa – whether the Tribunal failed to address the issue of family violence – whether there was a spousal relationship – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5F, 476

Migration Regulations 1994, reg.1.15A, cl.820.211

Guven v Minister for Immigration & Anor (2006) FMCA 311
SZOXP v Minister for Immigration and Border Protection [2015] FCAFC 69

Applicant: LOKMANI POKHAREL

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1819 of 2015

Judgment of: Judge Street

Hearing date: 6 October 2015

Date of Last Submission: 6 October 2015

Delivered at: Sydney

Delivered on: 6 October 2015

REPRESENTATION

Solicitors for the Applicant: Mr M Newman
Newman & Associates

Solicitors for the Respondents: Mr L Gell
Clayton Utz

ORDERS

1. The name of the Second Respondent be amended to the Administrative Appeals Tribunal and the filing of any further document in this regard is dispensed with.

2. The application is dismissed.

3. The Applicant pay the costs of the First Respondent fixed in the amount of $6825.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1819 of 2015

LOKMANI POKHAREL

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Tribunal made on 29 May 2015 affirming a decision of delegate not to grant the applicant a Partner (Temporary) (class UK) visa. The applicant applied for a Partner (Temporary) class UK visa on 22 May 2012.

2. The delegate identified that there was certain criteria that had to be satisfied at the time of the application on cl.820.211(2)(c). That clause provides as follows:

   820.21--Criteria to be satisfied at time of application

   820.211 

   …

   (2)  An applicant meets the requirements of this subclause if:

   …

   (c)  the applicant is sponsored:

   (i)  if the applicant's spouse or de facto partner has turned 18--by the spouse or de facto partner; or

   (ii)  if the applicant's spouse has not turned 18--by a parent or guardian of the spouse who:

   (A)  has turned 18; and

   (B)  is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and

3. The reference to spouse was informed by s.5F which provides as follows:

   Spouse

   (1)  For the purposes of this Act, a person is the spouse of another person if, under subsection (2), the 2 persons are in a married relationship.

   (2)   For the purposes of subsection (1), persons are in a married relationship if:

   (a)  they are married to each other under a marriage that is valid for the purposes of this Act; and

   (b)  they have a mutual commitment to a shared life as husband and wife to the exclusion of all others; and

   (c)  the relationship between them is genuine and continuing; and

   (d)  they:

   (i)  live together; or

   (ii)  do not live separately and apart on a permanent basis.

   (3)  The regulations may make provision in relation to the determination of whether one or more of the conditions in paragraphs (2)(a), (b), (c) and (d) exist. The regulations may make different provision in relation to the determination for different purposes whether one or more of those conditions exist.

   Note:         Section 12 also affects the determination of whether the condition in paragraph (2)(a) of this section exists.

4. Pursuant to s.5F(3), reg.1.15A identifies the considerations that must be taken into account in determining whether the conditions in s.5F(2) exist. Regulation 1.15A provides as follows:

   Spouse

   (1)  For subsection 5F(3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5F(2)(a), (b), (c) and (d) of the Act exist.

   (2)  If the Minister is considering an application for:

   (a)  a Partner (Migrant) (Class BC) visa; or

   (b)  a Partner (Provisional) (Class UF) visa; or

   (c)  a Partner (Residence) (Class BS) visa; or

   (d)  a Partner (Temporary) (Class UK) visa;

   the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).

   (3)  The matters for subregulation (2) are:

   (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 person in the relationship owes any legal obligation in respect of the other; and

   (v)  the basis of any sharing of day-to-day household expenses; and

   (b)  the nature of the household, including:

   (i)  any joint responsibility for the care and support of children; and

   (ii)  the living arrangements of the persons; and

   (iii)  any sharing of the responsibility for housework; and

   (c)  the social aspects of the relationship, including:

   (i)  whether the persons represent themselves to other people as being married to each other; and

   (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; and

   (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.

   (4)  If the Minister is considering an application for a visa of a class other than a class mentioned in subregulation (2), the Minister may consider any of the circumstances mentioned in subregulation (3).

5. The criteria to be satisfied also requires criteria to be satisfied at the time of the decision under cl.801.221 relevantly as follows:

   820.21--Criteria to be satisfied at time of application

   820.211 

   (1)  The applicant:

   (a)  is not the holder of a Subclass 771 (Transit) visa; and

   (b)  meets the requirements of subclause (2), (5), (6), (7), (8) or (9).

   (2)  An applicant meets the requirements of this subclause if:

   (a)  the applicant is the spouse or de facto partner of a person who:

   (i)  is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and

   (ii)  is not prohibited by subclause (2B) from being a sponsoring partner; and

   (c)  the applicant is sponsored:

   (i)  if the applicant's spouse or de facto partner has turned 18--by the spouse or de facto partner; or

   (ii)  if the applicant's spouse has not turned 18--by a parent or guardian of the spouse who:

   (A)  has turned 18; and

   (B)  is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and

   (d)  in the case of an applicant who is not the holder of a substantive visa--either:

   (i)  the applicant:

   (A)  entered Australia as the holder of a Subclass 995 (Diplomatic) visa or as a special purpose visa holder who at the time of entry met the requirements of subclause (2A); and

   (B)  satisfies Schedule 3 criterion 3002; or

   (ii)  the applicant satisfies Schedule 3 criteria 3001, 3003 and 3004, unless the Minister is satisfied that there are compelling reasons for not applying those criteria.

   …

   (6)  An applicant meets the requirements of this subclause if the applicant:

   (a)  is the holder of a Subclass 300 (Prospective Marriage) visa; and

   (b)  has married the sponsoring partner under a marriage that is recognised as valid for the purposes of the Act; and

   (c)  the applicant is sponsored:

   (i)  if the applicant's spouse has turned 18--by the spouse; or

   (ii)  if the applicant's spouse has not turned 18--by a parent or guardian of the spouse who:

   (A)  has turned 18; and

   (B)  is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and

   (d)  continues to be the spouse of the sponsoring partner.

6. The delegate found that there was no spousal relationship at the time of the application, and accordingly the applicant failed to meet the criteria under cl.820.221.  It was in those circumstances that the delegate found it that it was not necessary to take into account the claim of family violence.  The delegate noted that that claim was raised for the first time by an email on 13 January 2014 and the applicant had provided to the delegate a statutory declaration that relevantly provided:

   1. My relationship with my partner Annie Walsh ended on 25 Feb 2013 by the way of separation. We will be proceeding to divorce in Feb 2014. Relationship has ended permanently.

   2. I have suffered domestic violence from the relationship with Annie Walsh. I could not inform the department earlier due to my mental health condition.

7. The Tribunal correctly identified the relevant issues in para.18 as follows:

   18. The issue in the present case is whether the applicant was the spouse of the sponsoring partner or is able to satisfy the other sub-criteria in clause 801.221.

8. Materially, the Tribunal found:

   28. Having regard to all the circumstances, on balance, the tribunal is not satisfied that the applicant and sponsor had a mutual commitment to a shared life as husband and wife to the exclusion of all others, or that the relationship was genuine and continuing, and the couple lived together·, or did not live separately and apart on a permanent basis.

   29. Given these findings the Tribunal is not satisfied that at the time of decision the parties were in a spousal relationship. Therefore the applicant does not meet cl.801.221(2)(c).

   30. Any incidences of family violence that are alleged must have occurred when the married relationship was still in existence. As the Tribunal is not satisfied that the applicant was the spouse of the sponsoring partner, the allegations of family violence pursuant to cl.801.221 (6) have not been considered. Furthermore, the applicant has not claimed, and there is no evidence before the Tribunal, that the applicant meets the alternative criteria in c1.801.221 (2A), (3), (4), or (5).

   DECISION

   31. The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

9. The grounds of the application as follows: 

   1. The applicant sought review of an adverse departmental. decision that his application for a Partner (Temporary) (Class UK) visa should be refused because it was found that no evidence of a genuine relationship existed at time of application. The tribunal upheld the decision for the following reasons:

   a. accepting that he was married to the sponsor. there was no commitment to a shared life as husband and wife to the exclusion of all others for despite a joint bank account there was no pooling of financial resources;

   b. that no more than a few people knew they had married;

   c. there was insufficient evidence in the form of other people's opinions about the nature of their relationship;

   d. the marriage lasted less than a year;

   e. he did not live permanently with his sponsor wife;

   f. she continued to see a former boyfriend;

   g. the relationship was just a financial one on the sponsor’s part;

   h. there was insufficient evidence of the degree of companionship and emotional support; and

   i. all in all the tribunal was not satisfied 1hat there was a mutual commitment to a shared life to the exclusion of all others.

   2. The tribunal erred in law when the usual test of 'living separately and apart' which requires there to be a cessation of all marital duties and relations and that in the eyes of others the parties are not seen to be living together was not applied, nor was allowance made for the fact that domestic violence was cited by the applicant.

10. Mr Newman on behalf of the applicant pressed that it was an error by the Tribunal by failing to take into account domestic violence in determining whether at the time of the decision the criteria under cl.801.221(2)(c) were met.  Mr Newman pointed out that it is clear that the Tribunal, from para.30 of its reasons, did not turn to a consideration of the family violence.

11. I agree with Mr Newman’s proposition that in order to determine whether the criteria under cl.801.221(2)(c) were met at the time of the decision it was necessary for the Tribunal to take into consideration the issue of family violence.

12. The respondent submits that on a fair reading of the Tribunal’s decision the Tribunal found that there was never a spousal relationship, and on that reading, it was not necessary for the Tribunal to take into account the consideration of family violence under cl.801.221.

13. The respondent submitted that the first limb of para.18 of the Tribunal’s reasons identified that the Tribunal was considering the issue of whether there was ever a spouse within the meaning of s.5F(2) and that the second sentence of para.30, on a fair reading, was a finding by the Tribunal that there was never a spousal relationship.

14. I accept the first respondent’s submission that in circumstances where there was never a spousal relationship at the time of the application the issue of family violence under cl.801.221(6) does not arise.  The first respondent submitted that this construction was also supported by the reasoning in Guven v Minister for Immigration & Anor [2006] FMCA 311 at 23 to 26 as follows:

    23. The Tribunal proceeded to assess, pursuant to Regulation 1.15A of the Regulations, whether or not, on the evidence before it, the applicant had been the spouse of the sponsor. The Tribunal concluded that at no point in time could the relationship between the parties properly be regarded as spousal within the meaning of the Regulations.

    24. Accordingly, the Tribunal found the visa applicant was not the spouse of the sponsoring spouse within the meaning of Regulation 1.15A, as was required by paragraphs 100.221(4)(b) and 100.221(2)(b) of Schedule 2 to the Regulations. The Tribunal noted that only where it found that such a relationship existed – that is, a spousal relationship – was it required to make a further finding in relation to claims of domestic violence.

    25. On the evidence before it, it was open to the Tribunal to make such a finding.

    26. I do not find an error in the Tribunal’s construction of paragraph 100.221(4)(b), nor do I find that were there such error, it could have materially affected the Tribunal’s decision. As indicated earlier in these reasons, the Tribunal made alternate findings which provided an independent basis for the Tribunal’s rejection of the applicant’s claims. Any error, therefore, in respect to the Tribunal’s construction of paragraph 100.221(4)(b) could not affect the outcome of this application.

15. I accept that decision is consistent with the submission advanced by the first respondent and I am not satisfied that it is clearly wrong.  On a fair reading of the Tribunal’s decision, the Tribunal found that there was never a spousal relationship between the applicant and the sponsoring partner.

16. In these circumstances, the failure to address the issue of family violence under cl.801.221(6) does not give rise to any jurisdictional error.  Further, I am satisfied that any error of approach in relation to cl.801.221(6) could not possibly have an impact on the outcome in the present case in light of the finding that there was no spousal relationship ever in existence.  It is in those circumstances that the failure by the Tribunal to take into account the allegation of domestic violence would not in any event entitle the applicant to relief in the present case. 

17. Mr Newman also advanced that the Tribunal had erred in its approach to the exigencies in relation to the applicant’s relationship and why were they living apart.  Mr Newman emphasised the divergent nature of relationships.  It was put that living apart may have been explicable as being on a temporary basis and drew attention to the decision in SZOXP v Minister for Immigration and Border Protection [2015] FCAFC 69 at [59]. I am not satisfied there was an error of the kind identified in SZOXP.  In the present case the Tribunal took into account the sponsor remaining in Newcastle while the applicant lived in Sydney and found to be “on a permanent basis”. 

18. I take into account in this regard the Tribunal’s finding in para.24:

    24. …The tribunal is not satisfied that the applicant and sponsor established a household together in any way or that they did not live separately and apart on a permanent basis.

19. Mr Newman also sought to develop an argument that the Tribunal had failed to consider all of the circumstances of the relationship in accordance with reg.1.15A and, in particular, focused upon the findings concerning the social aspects of the relationship and the reference to the small circle of people to whom the parties have represented themselves as being married.

20. In my opinion, there was no failure by the Tribunal to have regard to all the circumstances of the relationship and in substance the challenge raised in that regard and in relation to para.26 of the Tribunal’s reasons concerning the social aspects of the relationship are an impermissible change to the merits of the matter that are for determination by the Tribunal.

21. Accordingly, no jurisdictional error is made out and the application is dismissed.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  21 October 2015