REDDY v Minister for Immigration
[2004] FMCA 516
•8 September 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| REDDY v MINISTER FOR IMMIGRATION | [2004] FMCA 516 |
| MIGRATION – Application for review of decision of Migration Review Tribunal – Whether Tribunal misinterpreted the definition of ‘spouse’ in Migration Regulation 1.15A – whether Tribunal asked itself the wrong question – whether Tribunal failed to take into account a relevant consideration. |
Migration Regulations 1994
Social Security Act 1947
MIEA v Wu Shan Liang (1996) 185 CLR 259
Lynam v Director General of Social Security (1984) 52 ALR 128
Nassouh v MIMA [2000] FCA 788
| Applicant: | SHANDHYA REDDY |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ1255 of 2003 |
| Delivered on: | 8 September 2004 |
| Delivered at: | Sydney |
| Hearing date: | 5 May 2004 |
| Judgment of: | Barnes FM |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Michael Jones, Solicitor |
| Counsel for the Respondent: | Mr T Reilly |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
That the application is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ1355 of 2003
| SHANDHAYA REDDY |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Background
This is an application for review of a decision of the Migration Review Tribunal (the Tribunal) delivered on 5 May 2003 affirming a decision of the respondent that the visa applicant was not entitled to the grant of a Partner (Temporary) (Class UK) visa.
The applicant, who is a national of Fiji, applied for a Class UK visa on 5 May 2000 on the basis of a claimed de facto relationship with the nominator, an Australian citizen. The applicant claimed to have met the nominator in Australia on 4 December 1997 and that they started living together in a de facto relationship on 18 February 1998. She provided documentary evidence in support of the visa application. On 6 December 2000 the nominator withdrew support for the application. The applicant subsequently claimed that she had fallen in love with the applicant but that things had changed after the application was lodged and that he had threatened to withdraw his nomination. She claimed through her representative that she had been subjected to domestic violence by the nominator. A delegate of the respondent refused to grant the visa on 21 August 2001. The applicant applied to the Tribunal for review on 21 September 2001. The Tribunal held a hearing on 25 March 2003.
The only subclass of the relevant visa class in respect of which any claims were advanced by the applicant was Subclass 820 (Spouse). Subclause 820.211(1) of Part 820 of Schedule 2 to the Migration Regulations requires that at the time of the application for the visa the applicant meet the requirements of one of subclauses 820.112(2) to (9). Subclause 820.211(2) relevantly required that the applicant be the ‘spouse’ of an Australian citizen or permanent resident or of an eligible New Zealand citizen. ‘Spouse’ is defined in regulation 1.15A of the Migration Regulations 1994 (the Regulations) as follows:
(1) For the purposes of these Regulations, a person is the spouse of another person if the 2 persons are:
(a) in a married relationship, as described in subregulation (1A); or
(b) in a de facto relationship, as described in subregulation (2).
…
(2)Persons are in a de facto relationship if:
(a) they:
(i) are of opposite sexes; and
(ii) are not married to each other under a marriage that is recognised as valid for the purposes of the Act; and
(iii) are not within a relationship that is a prohibited relationship for the purposes of subsection 23B(2) of the Marriage Act 1961; and
(b) they are of full age, that is:
(i) if either of the persons is domiciled in Australia — both of them have turned 18; or
(ii) if neither of the persons is domiciled in Australia — both of them have turned 16; and
(c) the Minister is satisfied that:
(i) they have a mutual commitment to a shared life as husband and wife to the exclusion of all others; and
(ii) the relationship between them is genuine and continuing; and
(iii) they:
(A) live together; or
(B) do not live separately and apart on a permanent basis; and
…
(3) In forming an opinion whether 2 persons are in a married relationship, or a de facto relationship, in relation to an application for:
…
(ag) a Partner (Temporary) (Class UK) visa;
the Minister must have regard to all of the circumstances of the relationship, including, in particular:
(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 party to the relationship owes any legal obligation in respect of the other; and
(v) the basis of any sharing of day-to-day household expenses;
(b) the nature of the household, including:
(i) any joint responsibility for care and support of children, if any; and
(ii) the parties' living arrangements; and
(iii) any sharing of responsibility for housework;
(c) the social aspects of the relationship, including:
(i) whether the persons represent themselves to other people as being married or in a de facto relationship with each other;
(ii) the opinion of the persons' friends and acquaintances about the nature of the relationship; and
(iii) any basis on which the personsC:\doc-conversion\inputToHtml\s1.20b.html - person plan and undertake joint social activities;
(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 C:\doc-conversion\inputToHtml\s1.20b.html - personpersons 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) In forming an opinion whether 2 persons are in a married relationship, or a de facto relationship, in relation to an application for a visa of a class other than a class specified in paragraph (3) (ab), (ad), (ae), (af) or (ag), the Minister may have regard to any of the factors set out in subregulation (3).
(5) If 2 persons have been living together at the same address for 6 months or longer, that fact is to be taken to be strong evidence that the relationship is genuine and continuing, but a relationship of shorter duration is not to be taken not to be genuine and continuing only for that reason.
Tribunal decision
The Tribunal accepted that the applicant had a commitment to a shared life together with the nominator as husband and wife at the time of application. It also accepted that a mutual commitment does not require that the applicant and nominator have an equal commitment to a shared life. However it found that the nominator did not have a commitment to a shared life together with the applicant as husband and wife at the time of the application.
The Tribunal considered the evidence before it and the matters referred to in subregulation 1.15A(3). The nominator had provided a statutory declaration in connection with the original application dated 4 May 2000 claiming that the relationship was genuine. The visa applicant’s evidence was that both she and the nominator had a commitment to a shared life together as husband and wife at the time of application. The applicant claimed that she had asked the nominator in September 1998 whether he had been married before and that he had become angry and told her not to delve into his past. She did not become aware that he had been married and had fathered two children prior to their relationship until after the relationship ceased in December 2000. She stated that after she signed the application for a visa he had added the names of his wife and children to the application form without her knowledge. The Tribunal found that this evidence did not support a finding that the nominator had a commitment to a shared life together with the visa applicant as husband and wife. It stated: “A shared life together as husband and wife includes the exchange of information about previous relationships and children. These are significant issues that would have been revealed by the nominator if he had made a commitment to a shared life”. The Tribunal found that the nominator’s amendment of the visa application without the applicant’s knowledge or consent supported a finding that the nominator did not have a commitment to a shared life as a husband and wife with the visa applicant. It concluded that such amendment revealed that the nominator took positive steps to ensure that the visa applicant did not know of his wife and children even in circumstances where the information had to be provided in the application. The Tribunal stated “Had he had a commitment to a shared life as husband and wife he would have revealed the information to the visa applicant”.
The Tribunal accepted the applicant’s evidence that she had suffered domestic violence at the hands of the nominator. It found that her evidence about the history of the relationship established that the violence commenced almost immediately after the application was lodged and that the relationship completely broke down because of such domestic violence within six months after the application was lodged. The Tribunal found that in circumstances where domestic violence began almost immediately upon the visa application being lodged, it could not be satisfied that the nominator had, at the time of application, a commitment to a shared life together as husband and wife with the visa applicant. The Tribunal stated “Such a commitment would not include the commencement of domestic violence against the visa applicant almost immediately upon the lodgment of the application”.
The Tribunal went on to address all the circumstances of the relationship including in particular the mandatory considerations in subregulation 1.15A(3)(a) to (d), in relation to the nominator’s commitment (having already accepted that the applicant had the requisite commitment).
The Tribunal found in relation to the financial aspects of the relationship that there was evidence of various joint bank accounts held in 2002, a joint lease and joint receipts which might tend to suggest that the nominator had a commitment to a shared life as husband and wife with the visa applicant at the time of application. It also accepted the applicant’s claims that the nominator ‘made good use of her in financial terms’, used her credit card facilities to pay his debts, ensured she used her savings during the course of the relationship and that she would be totally dependent on him for survival. The Tribunal stated that this evidence satisfied it that, notwithstanding the other evidence about financial circumstances, the nominator did not have a commitment to a shared life as husband and wife with the visa applicant at the time of application. It found that on balance it was more likely that the nominator was using the visa applicant for financial gain during the relationship rather than making a commitment to a shared life with her.
The evidence in relationship to nature of the household indicated that the couple lived together, first in shared accommodation from February 1998 until 4 December 1999 and then as a couple from 4 December 1999. The Tribunal found that this evidence, considered in isolation, supported a finding that the nominator had the requisite commitment but that such finding had to be considered in the totality of all the other findings.
The Tribunal also considered social aspects of the relationship. Statutory declarations from friends of the couple and photographs supporting the social aspects of the relationship were weighed against the evidence of the visa applicant about the nominator’s behaviour towards her. The Tribunal found that such other evidence indicated that rather than informing the world at large that the couple continued to enjoy a mutual commitment immediately after the application, the nominator sought to prevent the applicant from having any social contact at all with the world at large. The Tribunal concluded that this evidence did not allow it to give great weight to the evidence otherwise provided in relation to the social aspects of the relationship.
In considering the nature of the persons’ commitment to each other the Tribunal had regard to the statutory declaration evidence from both the visa applicant and the nominator at the time of the application as to the start of cohabitation and claiming that the relationship was genuine and lasting. However the Tribunal was not persuaded by such statutory declarations that its findings should be altered in relation to the nominator’s non-disclosure of his marriage and children and the onset of domestic violence.
When considered as a whole, the findings made by the Tribunal in regard to the mandatory consideration set out in subregulation 1.15A(3), persuaded it that the nominator did not have a commitment to a shared life together with the visa applicant as husband and wife at the time of application. The Tribunal acknowledged that it had made limited findings that would support such a view but when considering evidence relating to the nominator’s non-disclosure of his marriage and children to the visa applicant, and as to the onset of domestic violence, the Tribunal found that the nominator did not have a commitment to a shared life together with the visa applicant as husband and wife at the time of application.
The Tribunal acknowledged that there were different kinds of de-facto relationships and that the level of commitment may be of equal strength. The definition of ‘spouse’ in regulation 1.15A requires that the visa applicant and nominator have a ‘mutual’ commitment to a shared life as husband and wife to the exclusion of all others at the time of application. As the nominator did not have the necessary commitment the Tribunal found that this element was not satisfied even though the applicant had such a commitment. The visa applicant and nominator were therefore not in a de facto relationship as defined in subregulation 1.15A(2) at the time of application. Hence the visa applicant was not the spouse, as defined in subregulation 1.15A(1), of the nominator at the time of application and did not satisfy subclause 820.211(2). As no other subclause in clause 820.211 was relied upon or applicable the application for review failed. While the Tribunal accepted that the applicant had suffered domestic violence at the hands of the nominator this did not entitle her to a visa. As the time of application criteria were not met it was not necessary for the Tribunal to address the domestic violence provisions relevant to criteria to be met at the time of decision under clause 820.221.
This application
The application before this Court claims that the Tribunal made a ‘jurisdictional error of law’ by misinterpreting the definition of ‘spouse’ in Regulation 1.15A and as a result asked itself the wrong question in purporting to determine whether the applicant was entitled to the visa. The particulars of this ground were that: “The Tribunal applied to the term ‘commitment to a shared life together’ a qualitative assessment of one partner’s understanding of proper behaviour in relation to the other in a marital relationship”. Leave was granted to the applicant during the hearing to add a further ground, that being that the Tribunal erred by failing to take into account relevant considerations, namely ‘the cultural and religious issues’ raised with the Tribunal in a written submission of the applicant’s migration agent dated 9 December 2002.
The applicant submitted that the Tribunal’s finding concerning the nominator’s failure to disclose his previous relationship implied that the Tribunal had an understanding of the legal definition of ‘spouse’ which was erroneous, as there was no legal basis for imposing a criterion of absolute honesty about past relationships in relation to a person’s commitment to a future relationship. It was submitted that the Tribunal’s statement “Had he had a commitment to a shared life as husband and wife he would have revealed the information to the visa applicant” was not merely an example of a decision-maker weighing a piece of evidence, but rather was an indication that the Tribunal was importing a criterion of absolute honesty into the definition of spousal ‘commitment’ and that in this and similar statements expressed categorically by the Tribunal, the Tribunal was not simply weighing up competing items of evidence but rather was importing a ‘policy of its own’ that for there to be a commitment to a shared life there must be candour in relation to previous relationships. In other words it was argued that the Tribunal had treated the question of candour not as a piece of evidence but as a criterion and that in imposing as a non-legislated extra criterion its own views of how couples should act in a relationship (whether or not such views may be ‘sociologically sound’) the Tribunal had failed to exercise its jurisdiction as it did not assess the applicant’s claims in relation to the legal criteria for the visa as set out in the Migration Regulations. In oral submissions it was contended for the applicant that cultural assumptions should not be imported into interpretation of the definition of spouse (except that monogamy was said to be inherent in the statutory requirement of ‘to the exclusion of all others’) and that the Tribunal fell into error in importing cultural assumption about levels of honesty or candour. In particular it was argued that ‘commitment’ to a shared life as husband and wife meant no more than having a genuine intention to go ahead with that sort of relationship and that a ‘shared’ life should be understood just as both people being involved in the relationship.
The respondent contended that the genuineness of a marriage is a question of fact for the Tribunal, that the Tribunal’s conclusion that the nominator did not have the requisite commitment was open to it for the reasons it gave and that the Court cannot review the merits of the Tribunal decision.
The applicant referred to the decision of Fitzgerald J in Lynam v Director General of Social Security (1984) 52 ALR 128 which considered whether a person was a ‘spouse’ within what the applicant described as an equivalent definition contained in the Social Security Act 1947. However Fitzgerald J was considering whether a woman was living with a man ‘as his wife on a bona fide domestic basis although not legally married to him.’ (s1061(1) of the Social Security Act as it stood at the relevant time). His Honour concluded that all facets of the interpersonal relationship needed to be taken into account, that what must be looked at was the composite picture and that in a particular case it was a question of fact and degree whether a relationship met the statutory test. In that case the Tribunal had erred by allowing financial aspects of the relationship to play a dominant role in assessment of a relationship to the substantial exclusion of all other facets. It was in that context that His Honour stated at 131 that:
“It seems futile to deny that subjective views as to what are involved as basic attributes of the marriage relationship will intrude into the assessment called for. However it is, in my view, important that the departmental officers or tribunals charged with the task at least take into account what is the norm for the peer group of the applicant. Only in this way can the legislation be fairly and justly accommodated to a multi-racial and otherwise diverse society.”
Under the statutory definition of ‘spouse’ in regulation 1.15A there are a number of elements to a de facto relationship including that the persons have a mutual commitment to a shared life as husband and wife to the exclusion of all others (regulation 1.15A(2)(c)(i)). Regulation 1.15A(3) states that the decision-maker must have regard to all the circumstances of the relationship, including, in particular, the paragraph (a) to (d) matters, in forming an opinion whether 2 persons are in a married or de-facto relationship. The regulation 1.1.5A(3) factors include matters which are not consistent with the applicant’s contention that all that is required is a genuine intention to go ahead with a relationship in which both people are involved. An assessment of the existing relationship, including in particular joint or shared activities and responsibilities, is mandated by regulation 1.15A(3). Such prescription of mandatory considerations addresses in part the concerns expressed by Fitzgerald J in Lynham’s case about the intrusion of subjective views about what are basic attributes of the marriage relationship. The Tribunal must have regard to all of the circumstances of the relationship including the specified matters (Nassouh v MIMA [2000] FCA 788).
On a fair reading of the Tribunal reasons (MIEA v Wu Shan Liang (1996) 185 CLR 259 at 271 – 2), I am not satisfied that the Tribunal erred in the manner contended. The Tribunal findings about the lack of candour and the nominator’s behaviour are to be understood in the context of regulation 1.15A and an obligation to have regard to all the circumstances of the relationship.
The applicant’s solicitor supported these contentions by reference to the categorical language in which the Tribunal expressed its findings, suggesting that this indicated that the Tribunal imported its own view of what constitutes a shared life. It is the case that some parts of the decision are, read in isolation, expressed in somewhat categorical terms. However I am not satisfied that, reading the decision as a whole, the Tribunal member is applying a policy of his own to the effect that for there to be a commitment to a shared life there must be candour about previous relationships. The Tribunal did not ‘impose’ a criterion of candour or absolute honesty about past relationships. It had regard to and weighed up the evidence before it, not only of the nominator’s non-disclosure and his failure to respond to the applicant’s specific inquiry about his past, but also, importantly, his positive concealment of his prior marriage and his children and the completion of the visa application without the applicant’s knowledge. The nominator’s lack of candour was part of the evidence taken into account in considering whether the nominator had the requisite commitment. The Tribunal considered all the applicant’s evidence about the non-disclosure – that when she asked the nominator in 1998 if he had been married before he became angry and told her never to delve into his past; that she did not become aware that he had been married and fathered two children until after their relationship ceased in December 2000 and that he added into her visa application the names of his wife and children without her knowledge. It was the combination of this evidence the significance of the information (that the nominator had a wife from whom he had separated in 1997 and had two Australian citizen children aged 23 and 13 at the time of the application) and the positive steps taken by the nominator to ensure the visa applicant did not know of his wife and children that was addressed by the Tribunal as well as the Regulation 1.15A(3) factors and the claimed domestic violence. Read as a whole and acknowledging that some element of subjectivity in the task of assessment of a relationship is entrusted to the Tribunal by the definition of ‘spouse’, albeit within consideration a specified mandatory considerations, I am not satisfied that the Tribunal has erred in the manner contended. The Tribunal considered the non-disclosure as part of the composite picture (as discussed further below at [26]). The Tribunal’s failure to refer specifically to aspects of the submission of the migration agent in relation to the cultural traditional background of the nominator is not an indication that the question of candour was treated as a criterion and not merely as a matter of evidence.
It was also submitted that the Tribunal had ignored the substantial submissions and arguments made in writing by the applicant’s migration agent, particularly the reference to cultural and religious factors affecting the attitudes of the nominator and applicant as persons of Hindu religion and Indian ethnicity with a 22 year age gap. The adviser had made submissions to the Tribunal in relation to the reasonableness of the behaviour of the applicant given this cultural background. The applicant contended that as the Tribunal made no mention of these submissions in its decision, this implied that it applied a monocultural reading of the definition which was not justified by anything in the legislation. It was submitted that the Tribunal had failed to take into account relevant considerations in not having regard to the cultural and social issues that were raised by the applicant’s adviser.
The Tribunal expressly stated that it had had regard to the migration agent’s submission. It is not required to refer to every item of evidence before it. It referred to the evidence on which its findings of fact were based (s430(1)(d) Migration Act). Nothing in the Tribunal’s reasons denies the proposition that in certain cultures a lower level of inquiry by a wife of her husband about his past, might be expected than in other cultures. Importantly, the Tribunal accepted that the applicant had the requisite commitment. However the evidence before the Tribunal, from the applicant herself, went much further than that. She not only claimed that she had not been told about the nominator’s wife and children but also that he added their details to her visa application without her knowledge. These matters were relevant to the question of the nominator’s commitment. The Tribunal conclusion was open to it on the material before it including the submission about the cultural background of the applicant and nominator. The weight to be given to particular items of evidence is a matter for the Tribunal. This is not a case in which the Tribunal has failed to take into account a relevant consideration in the sense of an integer of the applicant’s claims (see MIMA v Yusuf (2001) 206 CLR 323 and Htun v MIMA (2001) 194 ALR 244).
It was further contended for the applicant that the Tribunal made an erroneous finding as to the time of commencement of domestic violence (it being contended that the applicant had claimed the first incident of actual violence occurred on 30 September 2000, whereas the Tribunal had stated that the violence commenced almost immediately after the application was lodged) and that in any event it did not follow that the Tribunal was entitled to find that the existence of serious domestic violence proved that the nominator did not have a commitment. According to the applicant, were this permissible it would pervert the intent of the amendments to the Migration Act relating to domestic violence (see for example subclause 820.221(3) and Division 1.5 of the Migration Act Regulations). This was said to constitute a ‘Catch-22’. It was contended that Regulation 1.15A must be interpreted in the light of the domestic violence provisions.
First I am not satisfied that the Tribunal did misstate the evidence before it in concluding that the domestic violence began almost immediately upon the application being lodged. It referred to the applicant’s statutory declaration provided on the prescribed form for the purposes of the domestic violence provisions of the Regulations. That form requests information such as the time of commencement of the domestic violence. In the context of providing such information the applicant stated that “the first incident of violence” occurred in September 1998 when she asked the nominator about his family background and whether he was married before. She described this event and her acceptance that she should not have questioned him and stated that things started to ‘turn for the worst [sic] for [her]’ soon after lodging the application. She claimed that the nominator started to show a different aspect of his life, became totally different towards her and that his behaviour was most unpredictable. She claimed that by the end of August 2000 she was ‘being held to ransom’. She described his threats and then the subsequent restrictions placed on her, the assault and rape. It is this evidence that the Tribunal relied on in assessing the commencement of domestic violence. Indeed, the definition of ‘violence’ in Regulation 1.21(1) includes ‘a threat of violence’ I am not satisfied that it can be said that the Tribunal’s finding as to the commencement of the violence misstated or misunderstood the evidence.
As to the ‘Catch-22’ argument, it was claimed that Regulation 1.15A must be interpreted in light of the domestic violence provisions in Division 1.5 of the Regulations. However there is a distinction between the time of application criteria and the time of decision criteria in Part 820 of Schedule 2 to the Regulations. Division 1.5 is not relevant to the time of application criteria which were determinative in this matter. It is only if the time of application criteria are met that it is necessary to consider the time of decision criteria, in relation to which Division 1.5 is relevant if it is claimed that the relationship between the applicant and sponsoring spouse ‘has ceased’ and the applicant has suffered domestic violence committed by the sponsoring spouse. In such circumstances there is no warrant for interpreting the time of application criteria in light of provisions applicable to time of decision criteria which presuppose a prior relationship which met the definition of ‘spouse’ at the time of the application.
Moreover the Tribunal’s findings in relation to the commencement of domestic violence were not the only reason for its conclusion that the nominator lacked the requisite commitment at the time of application. The Tribunal did not find, as submitted, that the existence of serious domestic violence ‘proved’ the nominator did not have a commitment. The Tribunal findings do not compel a conclusion that it took the view that domestic violence and commitment on the part of a nominator are necessarily mutually exclusive. Reading the Tribunal reasons fairly and as a whole I am satisfied that the Tribunal, properly, took into account all of the circumstances of the relationship (including the subregulation 1.15A(3) factors) in determining whether the elements of a de facto relationship (including mutual commitment) existed. While individual findings are expressed in a somewhat categorical manner so that read in isolation the finding about domestic violence might suggest that the basis for the Tribunal conclusion as to the lack of requisite commitment was the domestic violence, read as a whole it is apparent that the Tribunal based its conclusion about the lack of commitment on a consideration of all the circumstances. (See MIEA v Wu Shan Liang (1996) 185 CLR 259). The Tribunal commenced by referring to the applicant’s and nominator’s evidence of mutual commitment at the time of application. It acknowledged that mutual commitment does not require equal commitment. It accepted that the applicant had the requisite commitment based on her evidence. It expressed doubts about the nominator’s commitment based on the applicant’s other evidence. It then not only considered the evidence of non-disclosure by the nominator but also the early perpetration of domestic violence followed by a compete break down of the relationship within 6 months after the filing of the application, and both positive and negative aspects of the subregulation 1.15A(3) factors. The following Tribunal conclusion makes it clear that the Tribunal did not simply find that the existence of serious violence ‘proved’ that the nominator did not have a commitment but rather considered all the circumstances of the relationship on the evidence before it’:
“When considering the mandatory matters contained in sub-regulation 1.15A(3), the Tribunal found that the nominator did not have a commitment to a shared life together with the visa applicant as husband and wife at the time of application. When considering other evidence relating to nominator’s non-disclosure of his marriage and children to the visa applicant, and as to the onset of the domestic violence, the Tribunal found that the nominator did not have a commitment to a shared life together with the visa applicant as husband and wife at the time of application. The Tribunal therefore finds that, at the time of application, the nominator did not have a commitment to a shared life together with the visa applicant as husband and wife.”
The applicant also contended that the Tribunal conceded that the evidence of the nominator’s financial exploitation of the applicant was ‘ambiguous’ and could not stand alone as a justification for the finding of lack of commitment. However the Tribunal reasons for decision do not suggest that the evidence of the nominator’s ‘financial exploitation’ of the applicant was ambiguous. Rather the Tribunal recognised that while there was some evidence of joint financial arrangements (such as joint bank accounts, residential lease, receipts in joint names for rent and other outgoing or purchases) which might tend to suggest that the nominator had the requisite commitment at the time of application, there was other evidence (in the applicant’s statutory declaration) as to how the nominator ‘also made good use of (the applicant) in financial terms’. It was this other evidence that the Tribunal gave weight to ‘notwithstanding’ the evidence about financial aspects of the relationship. Moreover, while the findings in respect of the financial aspects of the relationship are expressed in terms of a lack of satisfaction that the nominator had a commitment, it is, as discussed above, apparent from the decision as a whole that this was not the sole justification for the finding of lack of commitment.
As no jurisdictional error has been established the application must be dismissed.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
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