Ramalingaiah v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2024] FedCFamC2G 601
•18 July 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Ramalingaiah v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FedCFamC2G 601
File number(s): MLG 739 of 2019 Judgment of: JUDGE FORBES Date of judgment: 18 July 2024 Catchwords: MIGRATION – application for review of decision of Administrative Appeals Tribunal to refuse the grant of a Partner visa – where husband engaged in sexual infidelity during marriage – where parties separated – whether relationship with other woman was “marriage-like” – where parties to the marriage recommenced cohabitation – where marriage ended due to family violence – whether a mutual commitment to a shared life together as husband and wife was ever present – error found Legislation: Migration Act 1975 (Cth) s 5F
Migration Regulations 1994 (Cth) sch 2 cls 100.221, reg 1.15A
Cases cited: Cao v Minister For Immigration & Anor [2007] FMCA 225
Huynh v Minister for Immigration and Border Protection (2020) 153 FCR 451
Kumar v Minister for Immigration and Border Protection (2020) 274 FCR 646
Division: Division 2 General Federal Law Number of paragraphs: 75 Date of hearing: 14 August 2023 Place: Melbourne Counsel for the Applicant: Mr Aleksov Solicitor for the Applicant: Carina Ford Immigration Lawyers Counsel for the Respondent: Mr Barrington Solicitor for the Respondent: Mills Oakley Lawyers ORDERS
MLG 739 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SHUBHA RAMALINGAIAH
Applicant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE FORBES
DATE OF ORDER:
18 JULY 2024
THE COURT ORDERS THAT:
1.The First Respondent’s name be changed to “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.A writ in the nature of certiorari be issued quashing the decision of the Second Respondent (the Tribunal) made on 11 February 2019.
3.A writ of mandamus be issued directing the Tribunal to hear and determine the Applicant’s application according to law.
4.The First Respondent (the Minister) pay the Applicant’s costs as agreed or in default of agreement in accordance with the scale prescribed in the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) as at the date of hearing.
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 FORBES
INTRODUCTION
In this proceeding the applicant, a citizen of India, seeks judicial review of a decision made by the Administrative Appeals Tribunal (the Tribunal) on 11 February 2019 to refuse the grant of a Partner (Migrant) (Class BC) (subclass 100) visa (the permanent partner visa).
The applicant married an Australian citizen of Indian heritage. She applied for a permanent partner visa but separated from her husband after an alleged incident of family violence. She sought to press her application on the basis that she and her husband had been in a married relationship[1] prior to the family violence incident, notwithstanding that the husband sponsor had engaged in extramarital relations with another woman during the marriage and after separation.
[1] Migration Act 1958 (Cth) s 5F(2)
The Tribunal found[2] that the applicant was not a spouse prior to the relationship ceasing because, inter alia, it was not satisfied that the parties had met the requirement in s 5F(2)(b) of the Migration Act 1958 (Cth) (the Act) for them to “have a mutual commitment to a shared life as a husband and wife to the exclusion of all others”.
[2] Administrative Appeal Tribunal reasons (Tribunal reasons) at [27]
The applicant’s amended application lodged on 17 July 2023 advanced two grounds of review, namely:
(a)that the Tribunal misconstrued the expression “shared life as a husband and wife to the exclusion of all others” in s 5F of the Act in that the “exclusionary” aspect of the provision does not mean an exclusion of any other romantic interests, but an exclusion of having any other marriage-like relationships outside of the marriage; and
(b)that the Tribunal failed to give proper consideration and make findings directed to the point in time at which the family violence (an alleged rape) occurred.
For the reasons given below, I have concluded that the Tribunal failed to discharge its statutory task by not adequately engaging with the question of whether the applicant and sponsor were “mutually committed to a shared life as a married couple to the exclusion of all others” at the time the family violence occurred (the alleged rape). For this reason, jurisdictional error is established, and the applicant is entitled to the relief sought in the application for review.
BACKGROUND
The applicant met her visa sponsor, an Australian citizen born in India, in September 2014. On 6 December 2015 the applicant and her sponsor were married in India in an elaborate and expensive ceremony. The marriage was an arranged marriage[3]. It is not in issue that their marriage is valid for the purposes of the Act. The couple then went on a honeymoon to Thailand, the cost of which the applicant says was borne by her. The applicant states that the sponsor then left India in February 2016 and returned to Australia.
[3] Applicant’s Outline of Submissions at [1]
On 7 April 2016 the applicant applied for a combined Partner (Provisional) (class UF) (subclass 309) visa and Partner (Migrant) (class BC) (subclass 100) visa. The visa application was made while the applicant was offshore in New Delhi, India. The applicant states that the sponsor did not show any interest in assisting her to come to Australia after the wedding and was resistant to fill in the requisite paperwork. She also states that he asked her not to register the marriage in India, which the applicant did not agree to.
On 14 December 2016 the applicant was granted a Partner (Provisional) (class UF) (subclass 309) visa.
On 21 March 2017 the applicant arrived in Australia. The sponsor husband was living in a flat in Carnegie, Victoria which he had rented in the joint names of himself and the applicant. The applicant claims that when she arrived at the flat unannounced, she discovered that her husband was living with another woman, a Thai lady who neighbours described as his “wife”.
The applicant moved in with a girlfriend. Sometime later the sponsor contacted the applicant and they spent nearly two weeks together, including travelling in Tasmania.
On or around 24 April 2017, the applicant discovered a picture of the Thai woman in the sponsor’s wallet, which she confronted him about, leading to an argument where the sponsor called the police. As a result, the applicant sought medical attention for chest pains and severe stress and on 28 April 2017 she returned to India.
After returning to India, the applicant claims that the husband repeatedly contacted her, apologising for his conduct, saying that he had learnt from his mistakes and begging her to return to Australia, promising that they could begin a fresh life together. The sponsor said he had ended his relationship with the Thai woman.
On 22 May 2017 the applicant returned to Australia on tickets paid for by her husband. She joined the sponsor at the flat in Carnegie. Initially there were no issues in the reunification. However, not long after her arrival the sponsor began to make sexual advances and argue with her, culminating in an alleged rape on 2 June 2017 that marked the end of the relationship. The applicant claims to have fled the shared residence for accommodation at a women’s refuge.
On 13 June 2017 an interim intervention order was put in place against her sponsor husband, protecting the applicant.
On 18 July 2017 the applicant’s migration agent from InTouch Multicultural Centre Against Family Violence contacted the Department via email informing them that the applicant had separated from her husband but, as a victim of family violence, she wished to continue her application for a permanent partner visa. The email attached several documents, including a statement from the applicant detailing the history of the relationship and abuse, a copy of the intervention order, a statement given by the applicant to the police, and reports from the Victorian Institute of Forensic Medicine and the South Eastern Centre Against Sexual Assault and Family Violence.
Further documents were submitted to the Department by the applicant’s representative on 31 July 2017, 2 August 2017 and 11 August 2017.
On 15 September 2017 the applicant’s permanent partner visa application was refused. A delegate of the Minister concluded that the applicant did not meet the criteria of “spouse” in s 5F of the Act because she was not in a “married relationship” prior to the relationship ceasing. The delegate found that the relationship between the applicant and her sponsor was “not one of mutual commitment to a shared life as husband and wife to the exclusion of all others”. This finding was made on the basis that there appeared to be no genuine intent to commit to the relationship (presumably on behalf of the sponsor) and because the sponsor had been and was continuing to maintain an extramarital relationship with another woman. Accordingly, the delegate was not required to further consider the family violence claims.
Administrative Appeals Tribunal
On 27 September 2017 the applicant applied to the Tribunal for review of the delegate’s decision.
On 5 February 2019 the applicant attended a hearing before the Tribunal with her migration agent. During the hearing, the applicant confirmed that the relationship with her sponsor had ceased.
On 11 February 2019 the Tribunal affirmed the decision of the delegate to refuse the grant of a permanent partner visa. The Tribunal outlined some of the evidence[4] put to the applicant during the hearing, including that her husband was unfaithful and was in a relationship with another woman for a significant portion of their marred life and continues to be unfaithful[5]. The evidence also detailed that after the applicant discovered that the sponsor was having an affair with another woman, and she returned to India on 28 April, the sponsor contacted her several times saying that he had “realised his mistakes” and persuaded her to come back to Australia. The applicant and sponsor then spent 12 days living together in Melbourne before he allegedly sexually assaulted her.
[4] Tribunal Reasons at [6] – [15]
[5] Tribunal Reasons at [17]
The Tribunal went on to consider the financial aspects of the relationship between the applicant and the sponsor. It noted that both the applicant and sponsor’s names appear on the rental lease for the property that was intended to serve as their home together. This is the same property that the applicant discovered the sponsor was living in with another woman. The Tribunal also accepted that the applicant contributed significantly to the wedding, honeymoon and associated costs of the partner visa application. The Tribunal concluded that the parties did not have any joint assets or liabilities.
Regarding the nature of the household, the Tribunal noted that the applicant and sponsor do not have any children. It also noted that the applicant has consistently claimed that the pair spent about 12 days living together, from May-June 2017, and it is unclear for how long the parties have lived together outside of that 12-day period. The Tribunal accepted that the parties had spent time together and travelled together in Bali and Thailand, including the time they spent together when they married in India. The Tribunal was prepared to accept that the parties may have lived together for some weeks or even months. The Tribunal also noted the applicant’s claim that the parties had purchased items (including furniture) while in India together which the sponsor had brought to Australia.
The Tribunal also accepted that the parties represented themselves to be married to other people, and importantly to their families in India, but found little evidence of them participating in joint social activities.
Regarding the nature of the parties’ commitment to each other, the Tribunal said at [25] – [26]:
“It is not clear to this Tribunal that the sponsor actually drew actual emotional support from the applicant, despite some of his letters/emails which apologise for his actions (within the relationship) and profess his love for the applicant. The communications from the sponsor to the applicant are almost entirely inconsistent with his actual behaviour as detailed (consistently and credibly) by the applicant throughout the documentary evidence in this case. The Tribunal readily accepts the applicant looked to establish and maintain companionship and emotional support from the sponsor.
From all of his actions, as distinct from some of his words, the Tribunal is not satisfied the sponsor saw the parties’ relationship as a long term one. Conversely, the Tribunal is satisfied that applicant (initially at least) did see the relationship as a long term one, and did not enter it lightly or half heartedly.”
The Tribunal affirmed the findings of the delegate that the applicant did not have a “mutual commitment to a shared life to the exclusion of all others”, and therefore the applicant was not the spouse of her sponsor under s 5F(2)(b). Accordingly, the applicant did not meet subclause 100.221(4)(b) of the Regulations.
On 15 March 2019 the applicant applied for review of the Tribunal’s decision in this Court.
GROUNDS
In an amended application lodged 17 July 2023 the applicant asserts two grounds of review:
1.The Tribunal misconstrued the expression “shared life as husband and wife to the exclusion of others”, in that it failed to understand that the relevant “sharing” is of a “life as husband and wife”, and that the “exclusionary” aspect of the provision is of having any other persons sharing the “life as husband and wife”, rather than as a general exclusion of any other romantic interests.
2.The Tribunal failed to give proper, genuine and realistic consideration to the chronology of the matter, and make findings directed to the specific point in time at which the family violence (the rape) occurred. Instead, the Tribunal made generic findings about the relationship overall, which ignored the fact that at the time of the family violence, the sponsor had apparently committed himself to a life with his then wife.
LEGAL FRAMEWORK
In order to be granted a permanent partner visa, the applicant must meet the requirements of subclause 100.221(2) of the Migration Regulations 1994 (Cth).
Subclause 100.221(2) provides:
(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; […]
The definition of spouse is found in s 5F of the Migration Act 1958 (Cth):
(1)For the purposes of this Act, a person is the spouse of another person (whether of the same sex or a different sex) 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 a married couple 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.
The family violence exception is found in subclause 100.221(4) of the Regulations:
(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; […]
Under the statutory framework, before assessing an applicant’s claims of family violence, under subclause 100.221(4)(b) it is necessary to consider whether the applicant would have satisfied the requirements of subclause (2) of clause 100.221. Subclause (2) requires that the applicant is, at time of decision, the spouse or de facto partner of the sponsoring partner. Therefore, where the relationship has ceased, the decision maker must be satisfied that the applicant was the spouse of the sponsor prior to the cessation of the relationship and before considering whether the applicant had suffered family violence committed by the sponsoring partner.
The family violence exemption in regulation 100.221(4) is not engaged unless the decision maker finds that the requirements of subclause (2) (a “married relationship”) would have been met but for the cessation of the relationship.
HEARING
The parties appeared before me on 14 August 2023. Mr Aleksov of counsel appeared on behalf of the applicant and Mr Barrington of counsel appeared on behalf of the respondent.
Prior to the hearing each of the parties filed a short outline of submissions and the Minister filed a Court Book, in accordance with court orders.
The parties’ representatives relied upon their written submissions and developed them orally at the hearing.
Submissions
Grounds 1 and 2 are inextricably linked and they were argued together.
The applicant contends that the definitions of spouse and “married relationship” in section 5F of the Act should be taken to accommodate a wide range of scenarios and that its proper construction must be culturally adaptive. The applicant submits that the commitment to spending a life together must be considered in context and the decision maker must have regard to the facts pertaining to those asserting the commitment. For example, it is possible for the commitment to be made to spend a life together even before people are legally married.
It is submitted that it would have been relevant in this case for the Tribunal to have considered the parties’ arranged Hindu marriage. The couple were lavished with an unusually expensive wedding and a significant dowry of some hundreds of thousands of dollars was paid to the husband’s family. They then spent a honeymoon together. The applicant submits that “in the context of arranged marriage, the relevant commitment is to be inferred from the fact of the marriage occurring within the social and familial context of arranged marriages being a cultural norm… the marriage implies the commitment”[6].
[6] Applicant’s Outline of Submissions at [2]
The applicant contends that the key issue which fell to be determined by the Tribunal was whether, at the time of the incident of family violence, the parties were in a committed relationship to the “exclusion of all others”. The applicant submits, however, that the Tribunal did not properly engage with that question and was diverted from its task by focusing on the husband’s sexual infidelity.
It was common ground between the parties that the expression “exclusion of all others” should be read to mean to the exclusion of any other marriage -like relationships. It is not to be read as meaning “to the exclusion of any other sexual or emotional relationships with another person”.
In Cao v Minister For Immigration & Anor [2007] FMCA 225 (Cao) her Honour Judge Riley stated at [42]:
“In my view, the correct interpretation of the relevant regulations is that it is a matter of fact and degree in the circumstances of the particular case whether an extra-marital sexual encounter indicates a lack of the required commitment to a shared life as husband and wife to the exclusion of all others. The regulations mean that a person is not a spouse as defined if he or she is party to another marriage-like relationship. Sex is only one part of such relationships and is obviously not unique to such relationships. Sex does not, of itself, mean that the relationship in which it occurs is a marriage-like relationship. The regulations do not exclude a person from being a spouse as defined if he or she engages in an extra-marital sexual encounter, provided that it is not in the context of a second marriage-like relationship and provided that he or she continues to have a commitment to a shared life as husband and wife with his or her spouse.”
The applicant says that if the facts reveal a relationship by one party to the marriage with a third party, the Tribunal was required to ascertain whether the character of that other relationship was “marriage-like”. That requires a proper engagement with relevant facts and an active assessment of the nature and attributes of that other relationship. This, the applicant submits, the Tribunal failed to do.
Secondly, the applicant says the Tribunal must, but failed to, engage with an important point-in-time issue. In circumstances where the applicant alleged family violence as the reason for the relationship ceasing, the applicant submits that the Tribunal had to determine the character of the other relationship as being “marriage-like” at the time the family violence occurred.
The applicant submits that the Tribunal did not grapple with or determine the relevant questions when deciding whether the parties had a “a mutual commitment to a shared life as a married couple to the exclusion of all others”. The applicant submits that the Tribunal did not focus on the moment in time when the family violence occurred and failed to make any finding about the nature of the other relationship as at that critical time. Accordingly, the applicant submits that there was a constructive failure to exercise jurisdiction.
The applicant submits that in the 12 days after she returned from India in late May 2017 at the pleading of the sponsor, the Tribunal ought to have found that there was a relationship between them which met the s 5F definition. Matters which would have properly informed that conclusion include that the parties were legally married, a substantial dowry had been paid, the parties had a lavish wedding and honeymoon, that the parties had travelled together to Thailand and Bali, that there were legal obligations arising from their marriage under Indian law, that during a period of cohabitation they travelled together to Tasmania, that the sponsor was contrite and apologetic about his past conduct as a husband and the relationship with the Thai woman, that he said he had learned his lesson and would not make the same mistake, that he professed his love for the applicant and asked her to return to Australia, that he paid for her airfares to return, that he rearranged his living arrangements and that the applicant cohabitated with him on her return until the family violence event.
The applicant submits that the Tribunal should have engaged with all of the above matters and should have found at the critical point in time that there was a mutual commitment to a shared life together as husband and wife to the exclusion of any other marriage-like relationship. The applicant submits that the Tribunal should have found, if it had properly considered these matters, that the sponsor and the applicant had genuinely wanted to give the marriage a go.
However, applicant submits that the Tribunal’s error is best understood as being that it did not properly turn its mind to the parties’ relationship at the time of the family violence. Rather, the Tribunal simply made findings at a level of high generality and abstraction (i.e. finding that the sponsor was never really committed to a shared future together because of his past and ongoing sexual infidelity) revealing a failure to grapple with the facts before it or the cultural context of the marital relationship.
The Minister submits that the Tribunal did properly construe its statutory task.
Insofar as the point in time issue is concerned, the Minister says that it is clear from [4] of the reasons that the Tribunal recognised that the applicant was required to satisfy the Minister that her relationship with the sponsor was a “marriage” relationship at the time of the family violence incident.
However, in its terms, paragraph [4] of the reasons is not so clear. Relevantly, it reads:
“[…] However, the legislation requires that the applicant must first satisfy the Minister her relationship with her sponsor (prior to its breakdown) was a “married” relationship (s.5F). The applicant must meet, at the time of application, section 5F(2)(a),(b),(c) and (d) of the Act. Failure to meet anyone of these sub-sections would result in the application being refused.”
The Minister submits that the first sentence in the extracted quote demonstrates that the Tribunal did approach the task of determining the status of the relationship at the time it broke down. However, the following two sentences sit oddly and reference the criteria to be met at the “time of application”.
Notwithstanding this apparent confusion, the Minister submits that on a fair reading of the Tribunal’s decision it is apparent that the Tribunal took into account post-application conduct by the sponsor. Accordingly, the Minister submits that in assessing whether the parties shared a requisite commitment the Tribunal properly directed itself to the circumstances pertaining at the time it broke down, which was the time of the domestic violence incident.
The Minister conceded that a mere finding of infidelity on the part of the sponsor is insufficient to exclude a finding that the parties were in a committed marriage of the requisite type. The Minister agreed that where one of the parties to the marriage is in a relationship with an extramarital party, the Tribunal must determine whether the extramarital relationship was a “marriage-like relationship”.
The Minister submits that is exactly what the Tribunal did in this case. The Minister submits that once the point is reached where a party to the marriage is involved in a concurrent second marriage-like relationship, the first relationship cannot be found to be to the exclusion of all others.
It is submitted that the Tribunal did consider factors which were probative as to the character of the sponsor’s relationship with the Thai woman, including, among other things:
·the applicant’s belief that the sponsor had been “unfaithful”, giving rise to the natural inference that he was involved in a sexual relationship with her;
·that the sponsor lived for some time with the other woman;
·that items belonging to the other woman were seen in the sponsor’s residence;.
·that the sponsor carried a photograph of the other woman in his wallet, including at the time of a family violence incident[7]; and
·the reasonable inference that the applicant had continued his relationship with the Thai woman notwithstanding his overtures to the applicant to return to Australia, his expression of regret and contrition.
[7] CB 1124; the “family violence incident” referred to here is not the alleged rape of 2 June 2017. The applicant states that there were photos of a Thai woman in the sponsor’s wallet on 24 April 2017, and a fight ensued
The Minister submits that the Tribunal engaged in a qualitative assessment of the nature of the relationship between sponsor and the other woman, of the type required by Cao. The Minister submits that such an assessment necessarily involves an evaluative assessment as to the existence, nature and quality of the parties’ commitment[8] and that it was open to the Tribunal on the evidence to find that the relationship between the sponsor and the other woman was “marriage-like”.
[8]Huynh v Minister for Immigration and Border Protection (2020) 153 FCR 451
The Minister points to [17] - [18] of the decision record where the Tribunal found:
“The overwhelming evidence, from the applicant herself, is that her husband was unfaithful, and in fact in a relationship with another woman for a significant portion, if not their entire married relationship, and continues to be.
Under the circumstances detailed above, this Tribunal cannot be satisfied the applicant was the spouse of her sponsor given the requirement in section 5F(2)(b) of the Act for the parties to “have a mutual commitment to a shared life to the exclusion of all others has not been met in this case.”
The Minister submits that when the reasons of the Tribunal are read fairly and as a whole, the expression “in a relationship with another woman” should be read to mean “in a marriage-like relationship with another woman”. The Minister submits that such a finding was open to the Tribunal because it enjoys a wide area of decisional freedom in determining whether the parties were committed to sharing a life as husband and wife “to the exclusion of all others”[9].
[9] Kumar v Minister for Immigration and Border Protection (2020) 274 FCR 646, at [5]-[7] (Logan J)
The applicant submits that paragraph [17] reveals error. The applicant submits that the mere finding of infidelity and a “relationship” with another woman might justify a finding that there is a lover in the picture but it does not disclose the true character of that relationship. Moreover, the finding that the unspecified relationship occurred over a “significant portion, if not the entirety of their married relationship, and continues to be” leaves open and fails to address the possibility that during the period of their marriage the applicant sponsor did have a mutual commitment to a shared life to the exclusion of others. Specifically, the finding does not exclude the possibility, which was not properly considered by the Tribunal, that the applicant and sponsor had such a mutual commitment in the 12 days prior to the alleged rape.
The Minister also refers to the task undertaken by the Tribunal from paragraph [20] which was endorsed in the decision of Huynh v Minister for Immigration and Border Protection (2020) 153 FCR 451. There the Tribunal turned its mind to its consideration of all the circumstances of the parties’ relationship, including the matters set out in regulation 1.15A(3)(a)-(d) of the Regulations. Those matters included the financial aspects of the relationship at [22], the nature of the household at [23], the social aspects of the relationship at [24] and the nature of the person’s commitment to each other at [25].
At [26] the Tribunal found as follows:
“From all of his actions, as distinct from some of his words, the Tribunal is not satisfied the sponsor saw the parties’ relationship as a long-term one. Conversely, the Tribunal is satisfied that the applicant (initially at least) did see the relationship as a long-term one, and did not enter it lightly or half-heartedly”.
The Minister submits that it was open to the Tribunal to find that the sponsor never had the requisite commitment to a shared life with the applicant.
The Minister submits that the finding at [26] reveals that the 12 days between the applicant’s return to Australia and the incident of family violence were taken into account because of the Tribunal’s reference to all of the sponsor’s actions and some of his words. It is reasonable to infer that the “words” referred to by the Tribunal included those which were conveyed to the applicant in an effort to have her return to Australia. In all the circumstances of the case, the Minister submits that it was reasonably open to the Tribunal to find that the sponsor’s words were empty and that his supposed commitment to a shared life with the applicant could be judged by his actions.
Consideration
While I accept that the Tribunal has significant decisional freedom and that the assessment of a married relationship involves an evaluative assessment as to the existence, nature and quality of the parties’ commitment, I am not satisfied that the Tribunal properly directed itself to the relevant statutory task.
At [43] of Cao Judge Riley said:
“…It is a matter for the Tribunal as the finder of fact to determine in all of the circumstances of the particular case whether or not an extramarital sexual encounter of one of the parties to a marriage reflects a lack of commitment to a shared life as husband and wife with the other party to the marriage, and whether or not it reflects the formation of a second marriage-like relationship.” [underlining added]
The Tribunal seems to have approached the matter at a high level of generality, placing significant emphasis on the husband’s sexual infidelity. It is unremarkable that the Tribunal concluded, as it did at [17], that there was overwhelming evidence that the sponsor was unfaithful and that he had been in a “relationship” with the Thai woman for a significant portion of his marriage.
However, in my view the relevant question to which the Tribunal was required to direct itself was whether in the period before the relationship ceased by reason of family violence the applicant and sponsor were “mutually committed to a shared life as a married couple to the exclusion of all others”. A finding of sexual infidelity or even an ongoing sexual relationship with another person, does not sufficiently answer that question. The assumption that a sexual relationship with another women is incompatible with a shared commitment is a leap in reasoning which seems to exclude the possibility that the applicant and sponsor may have reconciled their disharmony and shared a mutual commitment in the 12 days prior to the alleged rape.
True it is that parties to a marriage cannot be mutually committed to a shared life “to the exclusion of all others” if one or other of them is committed to another marriage-like relationship. However, it does not appear that the Tribunal actively engaged with whether the relationship between the sponsor and the Thai woman was “marriage like” or something of a lesser order.
I accept the applicant’s submission that the Tribunal did not properly turn its mind to the chronology of relevant facts including, in particular, the circumstances which led to the applicant’s return to Australia and the 12-day period where the applicant and sponsor did cohabitate and travel as one would expect of a couple in a married relationship. The Tribunal did not consider the nature of the husband’s relationship (if any) with the other woman during that period or whether that other relationship was marriage-like in character. The Tribunal did not assess whether the “relationship” between the sponsor and the other woman was, in fact, incompatible with s 5F(2)(b).
The Tribunal’s reasons should not be read with an eye keen to finding error. However, the Tribunal does not appear to have made any more specific finding than that the sponsor had engaged in an extra-marital relationship for much of his marriage to the applicant. This finding underpinned the determinative conclusion that the parties’ commitment to a shared life to the exclusion of all others was not present. It is a finding at a high level of generality resulting from the Tribunal’s constructive failure to engage in the type of analysis discussed in Cao.
Even on a generous reading of the reasons, the Tribunal does not appear to have considered the parties’ commitment in the 12-day period immediately before the relationship ended by the act of family violence. Had it done so, in the context of the relationship as a whole, the Tribunal might have found that the applicant and sponsor were genuinely endeavouring to give the marriage a go and that the requisite mutual commitment to a shared life as husband and wife was present.
DISPOSITION
For the reasons set out above, I find that the decision of the Tribunal made on 11 February 2019 is affected by jurisdictional error.
The decision of the Tribunal will be quashed and the matter remitted to the Tribunal to be heard and determined in accordance with law.
I will hear the parties on costs.
I certify that the preceding seventy-five (75) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Forbes. Associate:
Dated: 18 July 2024
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