Ruzario v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2022] FedCFamC2G 235

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Ruzario v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 235

File number(s):

PEG 44 of 2020

Judgment of:

JUDGE LUCEV

Date of judgment:

6 April 2022

Catchwords:

 MIGRATION – Judicial review – Administrative Appeals Tribunal decision – refusal of Partner (Migrant) (Class BC) (Subclass 100) visa – where typographical errors – whether relevant material ignored – whether decision unreasonable – whether requirement to assess whether a spousal relationship before dealing with alleged family violence – whether family violence occurred – whether jurisdictional error

Legislation:

Migration Act 1958 (Cth) Div 5, Pt 5, ss 5F, 65, 368, 375A, 376, 476

Migration Regulations 1994 (Cth) regs 1.15A, 1.23, Sch 2, cls 100.221, 820.221

Cases cited:

Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630

CCC v Minister for Immigration & Multicultural Affairs [2001] FCA 682

Djokovic vMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3

El Jejieh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1103

Foroghi v Minister for Immigration & Multicultural Affairs [2001] FCA 1875

Gupta vMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1646; (2021) 360 FLR 25

Hanna v Minister for Immigration and Border Protection [2016] FCA 282; (2016) 150 ALD 299

He & Ors v Minister for Immigration & Border Protection & Anor [2017] FCAFC 206; (2017) 255 FCR 41; (2017) 161 ALD 17

Kaur v Minister for Immigration and Border Protection [2014] FCA 1251

Ludgero v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1060; (2021) 358 FLR 215

Maroun v Minister for Immigration & Citizenship [2009] FCA 1284; (2009) 112 ALD 424

Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24; (1986) 60 ALJR 560; (1986) 66 ALR 299

Minister for Immigration & Border Protection v Angkawijaya & Ors [2016] FCAFC 5; (2016) 236 FCR 303; (2016) 149 ALD 69

Minister for Immigration & Border Protection v Pandey & Ors [2014] FCA 640; (2014) 143 ALD 640

Minister for Immigration & Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437; (2014) 308 ALR 280; (2014) 139 ALD 50

Minister for Immigration & Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594; (2011) 85 ALJR 327; (2011) 273 ALR 223; (2011) 119 ALD 1

Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1

Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225

Ministerfor Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1; (2016) 329 ALR 491

Minister for Immigration and Border Protection v Truong [2016] FCAFC 54

Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 138 ALD 181

Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 266 ALR 367; (2010) 84 ALJR 369; (2010) 115 ALD 248

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Gupta [2022] FCAFC 51

MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392; (2015) 238 FCR 158

MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 95 ALJR 441; (2021) 390 ALR 590

NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167

Nassouh v Minister for Immigration & Multicultural Affairs [2000] FCA 788

Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405; (2000) 168 ALR 407; (2000) 58 ALD 609

S14/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1153

Sharma v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 3372

SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300

SZDXZ v Minister for Immigration and Citizenship [2008] FCAFC 109

SZGME v Minister for Immigration and Citizenship [2008] FCAFC 91; (2008) 168 FCR 487; (2008) 102 ALD 31

SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58; (2012) 202 FCR 1; (2012) 289 ALR 463; (2012) 127 ALD 1

Tran v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 297

VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117

Wu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1091; (2021) 358 FLR 269

Division:

Division 2 General Federal Law

Number of paragraphs:

82

Date of last submission/s:

18 June 2021

Date of hearing:

18 June 2021

Place:

Perth

The Applicant:

Appeared in person

Counsel for the First Respondent:

Ms S. J. Oliver

Solicitor for the First Respondent:

Sparke Helmore

For the Second Respondent:

Submitting appearance, save as to costs

ORDERS

PEG 44 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

LOUIS JOHN RUZARIO

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE LUCEV
DATE OF ORDER:	6 APRIL 2022

THE COURT ORDERS THAT:

1.The originating application filed 7 February 2020 be dismissed.

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 LUCEV

INTRODUCTION

1. On 7 February 2020 the applicant (“Mr Ruzario”) filed an application for judicial review (“Judicial Review Application”) under s 476 of the Migration Act 1958 (Cth) (“Migration Act”), seeking orders in relation to a decision of the Administrative Appeals Tribunal dated 15 January 2020 (“Tribunal Decision and “Tribunal” respectively). The Tribunal Decision affirmed a decision made on 4 September 2014 of a delegate of the first respondent, (“Delegate’s Decision” and “Delegate” respectively), the then Minister for Immigration and Border Protection, now the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“Minister”), to refuse to grant Mr Ruzario a Partner (Migrant) (Class BC) (Subclass 100) visa (“Partner Visa”).

2. Although there is only one ground in the Judicial Review Application, set out below at [10], it raises two commonly recognised and distinct grounds of review, namely, alleged failure by the Tribunal to consider relevant materials and alleged unreasonableness in the Tribunal Decision. Two other matters arise. First, the matter of typographical errors in the Tribunal Decision, addressed at [22]-[24] below (“Typographical Errors Ground”), and second, whether the Tribunal Decision is affected by a jurisdictional error for the same reasons as were referred to in El Jejieh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1103 (“El Jejieh”) and followed in Sharma v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 3372 (“Sharma”): as to which see [66]-[80] below (“Construction of Criteria Ground”).

3. The Court has before it the following materials:

   (a)the Judicial Review Application;

   (b)the affidavit of Louis John Ruzario sworn 7 February 2020, annexing the Tribunal Decision;

   (c)a Court Book (“CB”) numbering 567 pages;

   (d)written submissions filed by the Minister on 17 November 2020 (“Minister’s Written Submissions”) addressing the Judicial Review Application; and

   (e)further written submissions filed by the Minister on 4 June 2021 (“Minister’s Further Written Submissions”) addressing the Construction of Criteria Ground.

   RELEVANT BACKGROUND TO THE TRIBUNAL DECISION

4. The relevant background to the Tribunal Decision is as follows:

   (a)Mr Ruzario is a citizen of India. He was married in a civil ceremony in India on 29 June 2011 (“Civil Wedding Ceremony”): CB 547 at [22(a)];

   (b)Mr Ruzario, still in India, lodged a combined application for the Partner Visa and a Partner (Provisional) (Class UF) (Subclass 309) (“Provisional Partner Visa”) on 29 July 2011, with Mr Ruzario’s then wife acting as the sponsor (“Sponsor”) for the combined application: CB 1-25 and 547 at [22(b)];

   (c)the Provisional Partner Visa was granted on 7 December 2011: CB 121-123;

   (d)Mr Ruzario and the Sponsor solemnised the marriage according to Christian rites in a Church in India on 28 January 2012 (“Church Wedding Ceremony”): CB 547 at [22(c)];

   (e)Mr Ruzario and the Sponsor travelled from India to Melbourne, arriving on 21 February 2012: CB 547 at [22(d)];

   (f)on 2 March 2012 the Department received a handwritten letter from the Sponsor confirming Mr Ruzario no longer lived with her and that she wished to withdraw the sponsorship (“Sponsor’s Letter”): CB 454-455 and 547 at [22(e)];

   (g)on 30 March 2012 Mr Ruzario was invited to comment on, or respond to, information that his relationship with the Sponsor was no longer continuing: CB 125-126. Mr Ruzario responded to the invitation on or about 27 April 2012 claiming that he had been the victim of family violence: CB 127-129 and 548 at [22(h)]. In support of this claim, Mr Ruzario submitted a statutory declaration dated 16 October 2012 detailing the conduct and behaviour of the Sponsor (“Ruzario Statutory Declaration”): CB 176-179;

   (h)Mr Ruzario and the Sponsor were divorced on 16 May 2013: CB 219;

   (i)pursuant to reg 1.23(10)(c)(ii) of the Migration Regulations 1994 (Cth) (“MigrationRegulations”), on 1 November 2013 the Delegate referred the matter to an independent expert (“Independent Expert”) for the purpose of assessing Mr Ruzario’s claim of family violence: CB 229-232. The Independent Expert provided to the Minister a report dated 20 December 2013: CB 229-244 (“Independent Expert’s Report”). The Independent Expert’s Report opined that whilst Mr Ruzario had experienced some behaviours which were abusive, the acts occurred after the relationship had ended, which she had found to be on or before 28 January 2012 and, therefore, she concluded that Mr Ruzario had not suffered relevant family violence: CB 241-242 (“Independent Expert’s Opinion”);

   (j)the Delegate’s Decision was made on 4 September 2014: CB 334-349. The Delegate was not persuaded by Mr Ruzario’s numerous submissions and evidence: CB 253-273, 284-320 and 322-325, and considered herself bound to take the Independent Expert’s Opinion as correct, and therefore concluded that Mr Ruzario did not satisfy cl 100.221 of Sch 2 to the Migration Regulations; CB 334-349;

   (k)Mr Ruzario sought review of the Delegate’s Decision by the then Migration Review Tribunal (“MRT”): CB 350-351;

   (l)on 10 November 2015 the MRT affirmed the Delegate’s Decision: CB 413-425 (“MRT Decision”);

   (m)on 23 March 2018 this Court made orders, by consent, remitting the matter to the Tribunal for reconsideration due to the existence of a jurisdictional error in the MRT Decision: CB 426-427;

   (n)the Tribunal scheduled a new hearing for the matter for 24 May 2019: CB 433-436. Mr Ruzario sent submissions (“First Tribunal Submissions”) and supporting documents to the Tribunal on 22 May 2019: CB 448-487;

   (o)on 23 May 2019 the Tribunal sent Mr Ruzario a letter (“23 May 2019 Letter”) which raised the issue of whether it was bound by the position taken by the MRT as to the existence of a spouse relationship: CB 488-489. Mr Ruzario sent the Tribunal submissions on that issue on 7 June 2019 (“Second Tribunal Submissions”): CB 514-522;

   (p)Mr Ruzario appeared before the Tribunal on 24 May 2019 (“First Tribunal Hearing”): CB 490-492. The First Tribunal Hearing was adjourned until 19 June 2019 to allow time for Mr Ruzario to provide a response to the issue set out in the 23 May 2019 Letter: CB 501-505;

   (q)the hearing was resumed on 19 June 2019 (“Second Tribunal Hearing”): CB 527-529;

   (r)Mr Ruzario made further submissions on 8 July 2019, after the Second Tribunal Hearing (“Third Tribunal Submissions”): CB 531-533; and

   (s)the Tribunal Decision, affirming the Delegate’s Decision, was handed down on 15 January 2020: CB 543-563.

   TRIBUNAL DECISION

5. The Tribunal Decision sets out separately:

   (a)procedural matters and the materials that were before the Tribunal; and

   (b)consideration of the facts and evidence, and the Tribunal’s conclusions.

6. In relation to the procedural matters and the materials before the Tribunal, the Tribunal:

   (a)summarised the Delegate’s Decision: CB 544-545 at [3]-[10];

   (b)recorded its disclosure of the information covered by certificates issued under ss 375A and 376 of the Migration Act: CB 545-546 at [11]-[12];

   (c)set out the First Tribunal Submissions: CB 546 at [13]-[14];

   (d)set out the terms of the 23 May 2019 Letter: CB 546 at [15];

   (e)recorded the issues discussed at the First Tribunal Hearing: CB 546-547 at [16]-[18];

   (f)recorded the preliminary matters discussed with Mr Ruzario at the Second Tribunal Hearing: CB 547 at [19]-[21];

   (g)set out several matters it accepted as fact at the Second Tribunal Hearing: CB 547-548 at [22], namely the following:

   a. the review applicant and sponsor married each other in a civil ceremony which was formally registered in India on 29 June 2011;

   b. the review applicant applied for subclass 309/100 visas on 29 July 2011; he was granted a 309 provisional Partner visa on 7 December 2011;

   c. the marriage was solemnised according to Christian rites in a church in India on 28 January 2012, being about six weeks after the granting of the 309 visa;

   d. the review applicant and his sponsor, then being his wife, arrived into Melbourne from India on 21 February 2012; they travelled to Australia together;

   e. they lived together in the sponsor’s home in Melbourne from date of arrival on 21 February 2012 for about one week, to 28 February 2012. They have not cohabited since that date;

   f. on 2 March 2012 the Department received a handwritten letter from the sponsor confirming the applicant no longer lived with her and that she wished to withdraw the sponsorship. A copy of that letter has been disclosed to the applicant;

   g. On 20 April 2012 the applicant was informed of the withdrawal of sponsorship by the department;

   h. the department provided procedural fairness through seeking a response to the sponsor’s withdrawal; a response was received on or about 27 April 2012 which contained claims from the applicant that he had suffered family violence perpetrated by the sponsor;

   i. on 29 October 2013 the delegate referred the matter to an independent expert for assessment and opinion; an opinion was provided to the Department on 20 December 2013, the opinion being that the applicant did not suffer relevant family violence before cessation of the relationship;

   j. on 4 September 2014 the delegate refused the application for the visas;

   k. the Tribunal is satisfied that the applicant did enter Australia as a holder of a subclass 309 visa;

   l. the Tribunal is satisfied that ‘non-judicial evidence’ has been submitted in compliance with the requirements of regulation 1.25 (2) and that the evidence had been submitted in accordance with IMMI 12/116.

   (h)set out the evidence contained in the Ruzario Statutory Declaration relevant to the issue of a spousal relationship: CB 548-541 at [23]-[45];

   (i)set out the terms of the Sponsor’s Letter: CB 551-552 at [46], which, upon consideration, it found would not form part of its reasons for affirming the Delegate’s Decision: CB 560 at [103]-[104];

   (j)recorded Mr Ruzario’s oral evidence at the Second Tribunal Hearing: CB 552-558 at [47]-[96];

   (k)set out the evidence of Mr Ruzario’s sister: CB 558 at [97]-[101]; and

   (l)set out the Third Ruzario Tribunal Submissions: CB 558-560 at [102].

7. The relevant events in the timeline of the relationship, as seemingly accepted by the Tribunal, are as follows:

   (a)Mr Ruzario first connected with the Sponsor online around May 2011: CB 552 at [48];

   (b)Mr Ruzario and the Sponsor first met in person when the Sponsor travelled to India on 25 June 2011: CB 553 at [60];

   (c)the Civil Wedding Ceremony was held in India on 29 June 2011: CB 547 at [22(a)];

   (d)the Sponsor returned to Australia on 30 June 2011: CB 553 at [55];

   (e)the Sponsor returned to India on 21 January 2012: CB 554 at [65], and met up with Mr Ruzario in his hometown on 26 January 2012: CB 554 at [60];

   (f)the Church Wedding was held on 28 January 2012: CB 547 at [22(c)];

   (g)Mr Ruzario and the Sponsor travelled from India to Melbourne on 21 February 2012: CB 550 at [40] and 557 at [90]; and

   (h)Mr Ruzario claimed the relationship had ended when he left the Melbourne house he had shared with the Sponsor, for seven days, on 28 February 2012: CB 559 at [22(k)].

8. The Tribunal’s key finding was that “the Sponsor had arrived at a realisation at or about the day of the [C]hurch [W]edding that they were incompatible as a couple”: CB 561 at [113]. That finding was informed by the following:

   (a)it was “clear” from the Ruzario Statutory Declaration, and Mr Ruzario’s evidence to the Tribunal, that from the very day of the Church Wedding Ceremony there were significant issues in the relationship, primarily evidenced by the behaviour of the Sponsor: CB 560 at [110];

   (b)the Tribunal accepted Mr Ruzario’s evidence that he noticed a difference in the Sponsor from about the day of the Church Wedding Ceremony: CB 561 at [111];

   (c)prior to the Church Wedding Ceremony the couple had only spent a few days together getting to know each other: CB 561 at [111];

   (d)having married Mr Ruzario in the Civil Wedding Ceremony, there was pressure from the Sponsor’s family to follow through with the Church Wedding Ceremony: CB 560 at [110] and 561 at [113]; and

   (e)that there was evidence of the Sponsor’s demeaning, undermining and humiliating conduct towards Mr Ruzario from the Church Wedding onwards: CB 561 at [115].

9. The central questions, in the eyes of the Tribunal, concerned the end date of the relationship and the date on which it was claimed family violence occurred. In that regard, the Tribunal relevantly concluded as follows: CB 562 at [118] and 563 at [121]:

   118. On the basis of the evidence, the Tribunal is satisfied the relationship between the applicant and sponsor has ceased. The Tribunal, however, finds that the relationship had ceased at a much earlier point in time than claimed by the Applicant. Having considered all of the evidence, both individually and cumulatively, the Tribunal finds that the relationship had ceased on or about the day of the church ceremony on 26 January 2012. This is well before the first incidents of claimed family violence as alleged by the applicant.

   …

   121.The Tribunal finds upon the evidence that the claimed family violence as alleged occurred from about 21 February 2012 (being when they arrived into Australia) to the point of departure of the applicant from the premises. There are no allegations (actual or inferred) of family violence having occurred prior to this date in India or elsewhere. The Tribunal notes that the family violence has to have occurred subsequent to the applicant having entered Australia.

   JUDICIAL REVIEW APPLICATION

1. The sole ground of the Judicial Review Application is as follows:

   1. The Tribunal made a jurisdictional error when it made finding that two days before the date of solemnisation of the Christian church wedding ceremony on 28 January 2012 between the applicant and the sponsor, their relationship had ceased. In coming to this finding, the Tribunal ignored relevant material including the following, and made an unreasonable decision.

   Particulars

   •The applicant and the sponsor jointly planned the Church wedding to the minutest of detail.

   •The sponsor travelled to India specifically to participate in the wedding ceremony

   •They took their vows in the presence of the priest and their family and large number of friends during the ceremony

   •The sponsor brought along a special pen to sign the wedding register following the church wedding on 28 January 2012

   •The applicant and the sponsor had travelled together as a couple from India to Melbourne after the solemnisation of their wedding.

   •They lived in the same house for about a week. The applicant only left after the family violence occurred. The Tribunal accepted the fact that the claimed family violence did occur during this period when they were living in the same house in Melbourne

   •The Tribunal also made a finding that immediately prior to the date of the church wedding, there was mutual commitment to a shared life as a married couple. This finding appears unreasonable and inconsistent with the finding that two days before the church wedding, the mutual commitment had suddenly disappeared

2. As indicated at [2] above, this ground raises two distinct arguments, which the Court will treat as separate grounds: the first being the alleged failure to consider relevant material (“Relevant Material Ground”), and the second being the alleged unreasonableness of the Tribunal Decision (“Unreasonableness Ground”). As also indicated at [2] above, there are two other possible grounds which the Court has styled the Typographical Errors Ground and the Construction of Criteria Ground.

   CONSIDERATION

   Jurisdictional error required

3. The Tribunal Decision may be set aside on judicial review if it is affected by jurisdictional error. Jurisdictional error may be established where the Tribunal identifies a wrong issue, asks a wrong question, ignores relevant material or relies on irrelevant material in a way that the Tribunal’s exercise, or purported exercise, of power is thus affected, resulting in a decision exceeding, or a failure to exercise, authority or powers given to the Tribunal under the Migration Act:Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ. In certain circumstances a denial of procedural fairness may also constitute jurisdictional error: SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300 at [32]-[33] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ. Unreasonableness may also constitute jurisdictional error: as to which see the relevant principles in relation to legal unreasonableness as explained by the High Court in Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 138 ALD 181 (“Li”), and subsequently by the Full Court of the Federal Court in Minister for Immigration & Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437; (2014) 308 ALR 280; (2014) 139 ALD 50 (“Singh”), and summarised by the Federal Court in Minister for Immigration & Border Protection v Pandey & Ors [2014] FCA 640; (2014) 143 ALD 640 (“Pandey”) at [41] per Wigney J.

4. To constitute jurisdictional error, the error must be material in the requisite sense explained in MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 95 ALJR 441; (2021) 390 ALR 590 (“MZAPC”) at [2] per Kiefel CJ, Gageler, Keane and Gleeson JJ, as follows:

   Materiality was subsequently explained in Minister for Immigration & Border Protection v SZMTA [2019] HCA 3, (2019) 264 CLR 421; (2019) ALJR 252; (2019) 75 AAR 75; (2019) 363 ALR 599; (2019) 163 ALD 38 to involve a realistic possibility that the decision in fact made could have been different had the breach of the condition not occurred. Existence or non-existence of a realistic possibility that the decision could have been different was explained to be a question of fact in respect of which the plaintiff in an application for judicial review of the decision on the ground of jurisdictional error bears the onus of proof.

5. The Court has no jurisdiction to engage in merits review: fact-finding is a matter for the Tribunal, and is not reviewable by this Court if the findings of fact were open to the Tribunal, and otherwise made in accordance with the law: NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167 at [9] per Heerey, RD Nicholson and Selway JJ; Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1 ("Wu Shan Liang"), CLR at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ.

6. Mr Ruzario bears the onus of establishing jurisdictional error in the Tribunal Decision: VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [45] per Hill, Sundberg and Stone JJ; Maroun v Minister for Immigration & Citizenship [2009] FCA 1284; (2009) 112 ALD 424.

7. In circumstances where a party is self-represented the Court must remain alert to the possibility of jurisdictional error by the Tribunal: MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392; (2015) 238 FCR 158 at [100] and [112] per Mortimer J (and see also Ludgero v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1060; (2021) 358 FLR 215 at [26] per Judge Lucev). In this case, the Court has accordingly considered the Typographical Errors Ground and the Construction of Criteria Ground: see [22]-[24] and [66]-[80] below respectively, as well as briefly addressing the weight of the evidence before the Tribunal: see [63] below.

   Relevant legislation

8. The Partner Visa criteria in cl 100.221 of Sch 2 to the Migration Regulations are relevantly as follows:

   (1)       The applicant meets the requirements of subclause (2), (2A), (3), (4) or (4A).

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

   (a)       the applicant:

   (i) is the holder of a Subclass 309 (Spouse (Provisional)) visa or a Subclass 309 (Partner (Provisional)) visa; or

   (ii) was the holder of a Subclass 309 (Spouse (Provisional)) visa granted before 1 November 1999 that has ceased to be in effect because the applicant:

   (A) was outside Australia at the end of the 30 month period specified in the Subclass 309 visa for travelling to and entering Australia; or

   (B) left Australia after the end of the 30 month period specified in that visa for travelling to and entering Australia; and

   (b) the applicant is the spouse or de facto partner of the sponsoring partner; and

   (c) subject to subclauses (5), (6) and (7), at least 2 years have passed since the application was made.

   …

   (4)       The applicant meets the requirements of this subclause if:

   (a) the applicant first entered Australia as the holder of a Subclass 309 (Spouse (Provisional)) visa or a Subclass 309 (Partner (Provisional)) visa and either:

   (i)        continues to be the holder of that visa; or

   (ii)       is no longer the holder of that visa because the visa:

   (A)      was granted before 1 November 1999; and

   (B)      has ceased to be in effect because the applicant:

   (I) was outside Australia at the end of the 30 month period specified in the Subclass 309 visa for travelling to and entering Australia; or

   (II) left Australia after the end of the 30 month period specified in that visa for travelling to and entering Australia; 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 …

9. The determination of whether there is a spouse relationship for the purposes of the Partner Visa requires the Tribunal to consider s 5F of the Migration Act and reg 1.15A of the Migration Regulations.

10. Section 5F of the Migration Act provides as follows:

    (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.

11. Regulation l.15A of the Migration Regulations provides as follows:

    (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).

12. The effect of s 5F of the Migration Act and reg 1.15A of the Migration Regulations is to impose an overarching obligation on the Tribunal to consider all the circumstances of the claimed relationship: He & Ors v Minister for Immigration & Border Protection & Anor [2017] FCAFC 206; (2017) 255 FCR 41; (2017) 161 ALD 17 at [76]-[78] per Siopis, Kerr and Rangiah JJ; Minister for Immigration & Border Protection v Angkawijaya & Ors [2016] FCAFC 5; (2016) 236 FCR 303; (2016) 149 ALD 69 at [5], [50]-[52] per Kenny and Griffiths JJ (with whom Allsop CJ at [1] agreed); Wu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1091; (2021) 358 FLR 269 at [26] per Judge Lucev. The Federal Court has said that the obligation imposed upon the Tribunal “… was expressed in mandatory terms … [and] set out, among other things, particular circumstances of the relationship to which regard “must” have been had by the Minister (and, indirectly, by the Tribunal)”: Nassouh v Minister for Immigration & Multicultural Affairs [2000] FCA 788 (“Nassouh”) at [10] per Katz J.

    Typographical Errors Ground

13. In relation to the Typographical Errors Ground, the Court notes there is a repeated typographical error in the Tribunal Decision in relation to the date of the Church Wedding Ceremony, where it is said to be 26 January 2012 throughout the “Conclusion” section of the Tribunal Decision: CB 562-563 at [117]-[123]. The Tribunal also used the 26 January 2012 date in its setting out of the Sponsor’s Letter: CB 551 at [46], and that appears to be because the Sponsor had referred to the date of the Church Wedding Ceremony as 26 January 2012 in the Sponsor’s Letter: CB 241 and 399. 26 January 2012 is not the date of the Church Wedding Ceremony, but rather the date on which the Sponsor travelled to Mr Ruzario’s hometown in India before the planned Church Wedding Ceremony: CB 554 at [66]. The evidence before the Tribunal plainly indicates that the correct date of the Church Wedding Ceremony was 28 January 2012: see CB 176, 288, 395, 449, 451, 452 and 524, and the Tribunal has otherwise referred to the correct date of the Church Wedding Ceremony in numerous places in the Tribunal Decision: see CB 545 at [8], 547 at [22 (c)], 548 at [26]-[27]; 549 at [30], 556 at [84] and 558-559 at [102].

14. The error in the date cannot be characterised as jurisdictional because:

    (a)the Court should not over-scrutinise the Tribunal Decision in search of error: Wu Shan Liang, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ;

    (b)typographical errors in Tribunal decisions are not exceptional. In S14/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1153 at [34] per Moore J the Federal Court said:

    The second is that the decision of the Tribunal had not been proof read, with the result that all transcription or typographical errors were not corrected. Experience would indicate that reasons for decision or judgment of members of administrative tribunals as well as judges, are not always models of perfection when first published. Typing and other errors can be overlooked in the proof reading process. It is commonplace for corrigenda to issue. In my opinion, it is probable that the word “not” was omitted. That conclusion is reinforced by the approach the Tribunal ultimately took to the applicant’s claims, namely that the applicant could live in Jakarta without facing a “real chance” of persecution.

    (c)in Foroghi v Minister for Immigration & Multicultural Affairs [2001] FCA 1875 at [48] per Marshall J the Federal Court, when referring to typographical errors, observed that:

    The existence of a typographical error is best acknowledged rather than attempted to be exploited…

    and cited CCC v Minister for Immigration & Multicultural Affairs [2001] FCA 682, a case where a ground of the appeal fastened on the omission of the word “not” prior to the word “satisfied”, and where, at [29] per Marshall J, the Federal Court said there is:

    … no reason to defy commonsense by not observing that a typographical error was made. I would read in the word “not” prior to the word “satisfied”…

    (d)the 26 January 2012 date appears a number of times in the “Conclusions” section of the Tribunal Decision: CB 562-563. The first time it is mentioned the Tribunal said: “the relationship had ceased on or about the day of the church ceremony on 26 January 2012”: CB 562 at [118]. It follows that the Tribunal intended to find that the day of the Church Wedding Ceremony was the day the relationship ceased. At other times in the Tribunal Decision, most importantly at CB 547 at [22(c)] where the Tribunal set out the matters it accepted as fact, the Church Wedding Ceremony was said to be held on 28 January 2012. Therefore, the Tribunal intended 28 January 2012 to be the date it found the relationship to have ceased, being the day the Church Wedding Ceremony was held;

    (e)there is no reason to doubt that, and it was not disputed that, the Church Wedding was held on 28 January 2012: see [22 and 23(f)] above; and

    (f)the errors are mere typographical errors and could not be seen as having any material effect on the outcome of the Tribunal Decision in circumstances where the alleged family violence was said to have occurred from about 21 February 2012: CB 563 at [121]; MZAPC at [2] per Kiefel CJ, Gageler, Keane and Gleeson JJ, subject to what is said on the Construction of Criteria Ground at [66]-[80] below.

15. The typographical errors are not, even when taken in aggregate, such as to signify a failure in the discharge of the Tribunal’s statutory task. Rather, it is evident that the Tribunal has in this case otherwise applied itself diligently to a consideration of the relevant facts and criteria. Thus, whilst it is unfortunate that there are typographical errors in the Tribunal Decision, those errors are not errors that resulted in the Tribunal Decision being affected by jurisdictional error.

    Relevant Material Ground

    Mr Ruzario’s submissions

16. Mr Ruzario did not file written submissions. His oral submissions focussed on asserted conclusions of fact, particularly that the “relationship was genuine”: Transcript at p 2, and that “we were in genuine relationship”: Transcript at p 9, and not the identification of jurisdictional error.

    Minister’s submissions

17. The Minister’s Written Submissions and oral submissions on the Relevant Material Ground were, in essence, as follows:

    (a)the subject matter of each of the particulars of the Relevant Material Ground were not mandatory considerations to be taken into account: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24; (1986) 60 ALJR 560; (1986) 66 ALR 299 (“Peko-Wallsend”), CLR at 40 per Mason J; and

    (b)in any event, the matters referred to were taken into consideration by the Tribunal in the Tribunal Decision.

    Consideration – Relevant Material Ground

18. A failure to take into account a “relevant consideration” can only arise if that consideration was a “mandatory consideration” in the sense discussed in Peko-Wallsend. In order for a matter to amount to a mandatory consideration it must be expressly stated to be required to be taken into account by the relevant legislation or, otherwise, must arise by implication from the subject matter, scope and purpose of the relevant legislation.

19. It was not necessary for the Tribunal to refer to every piece of evidence and every contention made by Mr Ruzario in its written reasons: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630 (“WAEE”) at [46] per French, Sackville and Healy JJ. In that regard, the Tribunal was entitled to accept or reject, or give such weight to the evidence proffered as it thought appropriate in all the circumstances: Wu Shan Liang, CLR at 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ; Tran v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 297 (“Tran”) at [5]-[7] per Kiefel, RD Nicholson and Downes JJ; Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 (“Lee”) at [27] per French J.

1. The Court is not to approach the task of judicial review overzealously in search of error in the Tribunal Decision: Wu Shan Liang, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; WAEE at [46] per French, Sackville and Healy JJ, and the onus is on Mr Ruzario to establish that the appropriate inference to draw is that matters were ignored or overlooked: Yusuf at [69] per McHugh, Gummow and Hayne JJ; Minister for Immigration & Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594; (2011) 85 ALJR 327; (2011) 273 ALR 223; (2011) 119 ALD 1 at [66]-[67] per Gummow J; SZDXZ v Minister for Immigration and Citizenship [2008] FCAFC 109 at [25] per Heerey, Branson and Emmett JJ. The Tribunal was required to set out findings on any material questions of fact and refer to the evidence or any other material on which findings of fact were based: Migration Act, s 368(1), Yusuf at [5] per Gleeson CJ.

2. To succeed, Mr Ruzario must, at an absolute minimum, demonstrate to the Court that the matters listed in the first six particulars of the ground were not considered by the Tribunal.

   Planning of Church Wedding Ceremony

3. In relation to the first particular of the Relevant Material Ground, the Court notes that Mr Ruzario submitted to the Tribunal that the social aspects of the relationship with the Sponsor were evidenced by the joint planning of the Church Wedding Ceremony, which included the Sponsor planning matters such as decor for the wedding venue, type of wedding cake, the wedding song and arranging for the flower girls: CB 518-519.

4. The Tribunal specifically:

   (a)noted Mr Ruzario’s evidence that following the Civil Wedding Ceremony in India in June 2011 he and the Sponsor “kept in regular contact by telephone and email. Plans were made to celebrate the marriage by a church wedding”: CB 548 at [25];

   (b)in setting out matters discussed at the Second Tribunal Hearing, noted that the Sponsor would send Mr Ruzario information about the Church Wedding Ceremony by email: CB 554 at [63]; and

   (c)noted Mr Ruzario’s submission that “the sponsor had actively participated in planning and decision-making for the church wedding which was of great significance to her”: CB 559 at [102(a)].

5. Axiomatically, the matters referred to in the previous paragraph all preceded the Church Wedding Ceremony, and when making findings for the purposes of s 5F of the Migration Act the Tribunal found that prior to the Church Wedding Ceremony Mr Ruzario and the Sponsor did have a mutual commitment to a shared life as a married couple: CB 562 at [120 (second a)], which is a finding consistent with the matters referred to in the previous paragraph, and indicative of the fact that those matters which related to the planning of the Church Wedding Ceremony were taken into consideration in the Tribunal Decision, and not ignored as asserted in the first particular to the Relevant Material Ground.

   Travel to Church Wedding Ceremony

6. In relation to the second particular of the Relevant Material Ground, the Court notes that Mr Ruzario relied on a combination of the joint planning of the Church Wedding Ceremony with the Sponsor and the Sponsor’s travel to India for, and participation in, the Church Wedding Ceremony, as evidence of the social aspects of the relationship with the Sponsor.

7. In relation to travel to the Church Wedding Ceremony, the Tribunal in the Tribunal Decision referred on at least two occasions to each of the following:

   (a)that after the Civil Wedding Ceremony in June 2011 the Sponsor returned to Australia for work as she was unable to request further leave: CB 548 at [25] and 553 at [60];

   (b)that on 20 January 2012 the Sponsor arrived in Mumbai from Melbourne, and that having stayed at her parent’s house for the preceding week, she travelled to Mr Ruzario’s hometown for the Church Wedding Ceremony, which was to be held on 28 January 2012: CB 548 at [27] and 554 at [65]-[66].

8. It cannot, therefore, be said that the Tribunal ignored evidence of the Sponsor travelling from Australia to India to attend the Church Wedding Ceremony. And, as with the evidence of the planning of the Church Wedding Ceremony, the evidence of that travel is consistent with the finding made by the Tribunal for the purposes of s 5F of the Migration Act, that prior to the Church Wedding Ceremony Mr Ruzario and the Sponsor did have a mutual commitment to a shared life as a married couple: CB 562 at [120 (second a)]. This evidence is indicative of the fact that those matters were taken into consideration in the Tribunal Decision and not ignored, as asserted in the second particular to the Relevant Material Ground.

   Attendance at the Church Wedding Ceremony

9. In relation to the third particular of the Relevant Material Ground, Mr Ruzario submitted to the Tribunal that the social aspects of the relationship were evidenced by Mr Ruzario and the Sponsor taking their vows at a formal church wedding with a priest officiating, and in the presence of their friends and family at the Church Wedding Ceremony, and the attendance of over 1,000 people thereat: CB 518-520.

10. In relation to the Church Wedding Ceremony, the Tribunal observed that:

    (a)the marriage was solemnised according to Christian rights at the Church Wedding Ceremony on 28 January 2012 (noting this was about six weeks after the granting of the Provisional Partner Visa): CB 547 at [22 (c)];

    (b)the Church Wedding Ceremony was held on 28 January 2012 in Mr Ruzario’s hometown, but noted that “[w]hilst the wedding ceremony had gone well the applicant sensed that the sponsor’s behaviour towards him changed immediately after the ceremony”: CB 548 at [27];

    (c)in the Sponsor’s Letter the Sponsor referred to the fact that after she had, in October 2011, expressed a wish to call off the wedding, her parents forced her to continue with the relationship and to “formally solemnize the relationship in a church wedding”: CB 551 at [46];

    (d)in his oral evidence Mr Ruzario recalled that the Sponsor “was very happy at the wedding ceremony”: CB 554 at [67]; and

    (e)Mr Ruzario’s sister had attended the Church Wedding Ceremony: CB 558 at [97].

11. It cannot, therefore, be said that the Tribunal ignored the fact that Mr Ruzario and the Sponsor took their vows in the presence of a priest at the Church Wedding Ceremony. The Tribunal was plainly cognizant of these facts. That the Tribunal did not refer to the number of people who attended the Church Wedding Ceremony is of no particular moment, and, in any event, the Tribunal was not required to refer to every piece of evidence that was before it: WAEE at [46] per French, Sackville and Healy JJ; Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405; (2000) 168 ALR 407; (2000) 58 ALD 609 at [65] and [67] per McHugh J. That the Tribunal did not ignore the fact of the Church Wedding Ceremony is reinforced by the fact that it was on and from the date of the Church Wedding Ceremony that the Tribunal found that Mr Ruzario and Sponsor were no longer in a spousal relationship on the basis of evidence that the Sponsor’s attitude toward Mr Ruzario changed on and from that date, see, for example:

    (a)CB 548 at [27]: “the applicant sensed that the sponsor’s behaviour towards him changed immediately after the ceremony”;

    (b)CB 554 at [67]: “he had declared that her behaviour towards him changed around the time of the church ceremony”;

    (c)CB 555 at [71]: “[t]he Tribunal notes that disharmony in the relationship was occurring from the day of the church wedding ceremony”;

    (d)CB 556 at [84]: “[t]he Tribunal indicated to the applicant that from having read the statutory declaration it appeared to it that the relationship between them had not been happy from the day of the church wedding ceremony on 28 January 2012”;

    (e)CB 560 at [110]: “[i]t is clear to the Tribunal from the statutory declaration of the applicant and the combined impact of his evidence at hearing that from the very day of the church wedding ceremony there were significant issues in the relationship, primarily evidenced by the behaviour of the sponsor towards the applicant”;

    (f)CB 561 at [111]: “[t]he accepted evidence of the applicant is that he noticed a difference in the sponsor from about the day of the church wedding”;

    (g)CB 561 at [113]: “[i]n the view of the Tribunal the sponsor had arrived at a realisation at or about the day of the church wedding that they were incompatible as a couple”;

    (h)CB 562 at [118]: “having considered all of the evidence, both individually and cumulatively, the Tribunal finds that the relationship had ceased on or about the day of the church ceremony”;

    (i)CB 562 at [120 (second a)]: “[p]rior to 26 [this should be 28: see [22] and [23(f)] above] January 2012 there was a mutual commitment to a shared life as a married couple to the exclusion of all others; from that date onwards, however, the Tribunal finds that mutual commitment did not exist, the sponsor having considerable doubts about [t]he future of the relationship”.

12. Far from ignoring the Church Wedding Ceremony and its nature, and the nature of the commitments given at it, as asserted in the third particular to the Relevant Material Ground, the Tribunal had regard to the Church Wedding Ceremony and the evidence of what occurred on and from that day, and used it as a basis for a finding by the Tribunal that there was a lack of commitment to the relationship by the Sponsor. This is indicative of the fact that those matters were taken into consideration in the Tribunal Decision and not ignored, as asserted in the third particular to the Relevant Material Ground.

    The special pen

13. In relation to the fourth particular of the Relevant Material Ground, the special pen matter, Mr Ruzario appears to have submitted to the Tribunal that the special pen symbolised the significance of the Church Wedding Ceremony to the Sponsor and that she had become upset when it could not be located for the signing of certain documents: CB 532.

14. The Tribunal, in setting out the matters discussed at the Second Tribunal Hearing and the evidence from Mr Ruzario’s sister, noted Mr Ruzario’s evidence of the incident concerning the special pen in which it was said that the Sponsor’s mother had misplaced a special pen to be used for the signing of the marriage register, that the Sponsor had shouted at her mother in front of the congregation, and that the Sponsor was reluctant to sign the marriage register in the absence of the special pen: CB 554 at [60] and 558 at [97].

15. On a fair reading of the Tribunal Decision, the incident relating to the special pen was not ignored by the Tribunal, contrary to what is asserted in the fourth particular to the Relevant Material Ground. Rather, the Tribunal set out evidence relevant to the special pen incident, and it can be inferred that this was part of the evidence that the Tribunal considered before arriving at the conclusion that the Sponsor’s attitude toward Mr Ruzario changed on and from the date of the Church Wedding Ceremony.

    Travel from India to Melbourne after the Church Wedding

16. The fifth particular of the Relevant Material Ground refers to the fact that Mr Ruzario and the Sponsor travelled together as a couple from India to Melbourne after the Church Wedding ceremony.

17. In the Tribunal Decision the Tribunal:

    (a)accepted as a fact that Mr Ruzario and the Sponsor arrived in Melbourne from India on 21 February 2012, having travelled to Australia together: CB 547 at [22(d)];

    (b)referred to written evidence from Mr Ruzario that the Sponsor flew to Melbourne arriving on the evening of 21 February 2012: CB 550 at [40];

    (c)referred to the Sponsor’s Letter to the Department in which the Sponsor stated that she and Mr Ruzario had landed in Australia on 21 February 2012: CB 551 at [46];

    (d)referred to Mr Ruzario’s oral evidence of events at Mumbai Airport when Mr Ruzario and the Sponsor “were about to board the aircraft bound for Australia”: CB 557 at [89], and to information contained in the Ruzario Statutory Declaration about events after departing Melbourne airport following their arrival on 21 February 2012: CB 557 at [90]; and

    (e)set out a further submission in July 2019 from Mr Ruzario’s migration agent that “on the flight to Melbourne she had been sleeping on his shoulder during the flight as she needed comforting”: CB 558-559 at [102 (h)].

18. It cannot, therefore, be said that the Tribunal ignored evidence concerning Mr Ruzario and the Sponsor travelling together to Australia from India on 21 February 2012. In its considerations, findings of fact and conclusions at CB 560-563 at [115]-[123] the Tribunal referred to:

    (a)the period “from the church wedding to the arrival of the applicant and sponsor in Melbourne” as a period during which “the sponsor was experiencing significant doubts and was unsettled by the prospect of an ongoing spouse relationship with the applicant”: CB 561 at [113];

    (b)Mr Ruzario’s evidence leading to “a reasonable conclusion that well before the arrival of the applicant and sponsor into Melbourne the sponsor held considerable doubts about their compatibility and her genuine commitment to the relationship”: CB 561 at [115]; and

    (c)the evidence being indicative “of the sponsor having significant reservations about their compatibility as at time of arrival into Australia”: CB 562 at [119 (d)].

19. On a fair reading of the Tribunal Decision, the travel by Mr Ruzario and the Sponsor from Bombay to Melbourne was not ignored by the Tribunal, contrary to what is asserted in the fifth particular to the Relevant Material Ground. Rather, the Tribunal set out evidence of and related to that travel, and that evidence was part of the matrix of evidence which ultimately led the Tribunal to conclude that the Sponsor’s attitude toward Mr Ruzario changed on and from the date of the Church Wedding Ceremony.

    Living in the same house

20. The sixth particular of the Relevant Material Ground refers to Mr Ruzario and the Sponsor living in the same house for about a week (after their arrival in Melbourne), and Mr Ruzario only leaving the house after family violence had occurred, and notes the fact that the Tribunal accepted that the claimed family violence occurred during the period when Mr Ruzario and the Sponsor were the in the same house in Melbourne.

21. In the Tribunal Decision the Tribunal:

    (a)accepted as a fact that Mr Ruzario and the Sponsor had lived together in the Sponsor’s home in Melbourne from the date of their arrival in Melbourne on 21 February 2012 for about one week until 28 February 2012 (and had not cohabited since): CB 547 at [22(e)];

    (b)refers to the Ruzario Statutory Declaration as to the events following his arrival at the Sponsor’s house, including his evidence that:

    (i)upon arrival at the house on 21 February 2012 the Sponsor told him that he would have to stay in a separate room to her: CB 550 at [40];

    (ii)the Sponsor went to the “Indian Embassy” on 22 February 2012 to endeavour to change her name in her passport back to her maiden name: CB 550 at [41];

    (iii)the Sponsor told Mr Ruzario on the drive back from the “Indian Embassy” to their house that she wanted an “immediate divorce” and that he was “worthless, a dog and a loser”: CB 550 at [41];

    (iv)on 23 February 2012 after Mr Ruzario questioned the Sponsor as to why she was burning dead rats that had been caught in the house in the backyard the Sponsor told him to “shut his mouth”, and that after that he “decided to spend as much time as possible away from her by staying in his room”: CB 550-551 at [42];

    (v)on 24 February 2012 he spoke to the Sponsor’s sister-in-law and was told that the Sponsor had been having an affair whilst engaged to Mr Ruzario, and when he confronted the Sponsor about this the Sponsor “threw a rolling pin (for rolling roti) at his head and told him that she’d kill him and that she knew lots of people in Australia that could have him killed”: CB 551 at [43];

    (vi)on 25 February 2012 after speaking to his sister in Perth, his sister bought Mr Ruzario a flight to Perth, and in the meantime, the Sponsor continued to shout at him and threatened him, treated him like a servant, and made him sit on the floor to eat meals: CB 551 at [44]; and

    (vii)on 28 February 2012 Mr Ruzario flew to Perth to live with his sister and has not had any contact with the Sponsor since: CB 551 at [45];

    (c)some of the incidents referred to in (b) above were repeated in Mr Ruzario’s oral evidence to the Tribunal: CB 557 at [90] (staying in a separate bedroom); 557 at [91] (trip to “Indian Embassy”); 557 at [93] (discussion with Sponsor’s sister-in-law re affair);

    (d)referred to the Sponsor’s “demeaning, undermining and humiliating conduct towards the applicant from the church wedding onwards” being “conduct that is not consistent with there having then been a mutual commitment to a shared life together to the exclusion of all others”: CB 561 at [115]; and

    (e)made findings for the purposes of s 5F of the Migration Act, including at CB 562-563 at [120(b)] that:

    From the arrival into Australia to the point of cessation of relationship, the parties lived separate lives within the sponsor’s premises. The evidence strongly indicates that from the sponsor’s perspective, living separate lives was to be a permanent arrangement with the applicant being requested to sleep in a separate bedroom …

22. There can be no doubt that Mr Ruzario’s living in the Sponsor’s house and the Sponsor’s conduct toward him whilst in that house were matters that were not ignored by the Tribunal, contrary to what is asserted in the sixth particular to the Relevant Material Ground. Rather, the Tribunal set out evidence of events that occurred in the time spent in the Sponsor’s house, and that evidence was a significant part of the evidence relied upon by the Tribunal, and which ultimately led the Tribunal to conclude that the Sponsor’s attitude toward Mr Ruzario changed on and from the date of Church Wedding Ceremony.

    Seventh particular

23. The seventh particular of the Relevant Material Ground goes to unreasonableness and is therefore discussed below in relation to the Unreasonableness Ground: see [53]-[65] below.

    Conclusion – Relevant Material Ground

24. From the foregoing, it is apparent that the Tribunal considered all of the matters referred to in the first to sixth particulars of the Relevant Material Ground and did not ignore any of the matters referred to in those particulars. It is evident from the form of those particulars and the oral submissions made by Mr Ruzario at hearing, that he strongly disagrees with the findings and conclusions reached by the Tribunal, and that what is being sought in the first to sixth particulars of the Relevant Material Ground is impermissible merits review: Wu Shan Liang, CLR at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ. Otherwise, and in any event, the subject matter of the particulars were not, of themselves, mandatory considerations that the Tribunal had to take into account: Peko-Wallsend, CLR at 40 per Mason J. It follows that the first to sixth particulars of the Relevant Material Ground are not made out and do not establish jurisdictional error in the Tribunal Decision.

    Unreasonableness Ground

25. For the purposes of the Unreasonableness Ground, Mr Ruzario asserts that the Tribunal ignored relevant material as set out in the first seven particulars and therefore made an unreasonable decision.

    Mr Ruzario’s submissions

26. Mr Ruzario filed no written submissions and his oral submissions amounted to no more than a plea for impermissible merits review: Wu Shan Liang, CLR at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ; see also [52] above.

    Minister’s submissions

1. The Minister’s Written Submissions and oral submissions on the Unreasonableness Ground were, in essence, as follows:

   (a)the relevant statutory provision is s 65 of the Migration Act requires the Minister to grant a visa if satisfied, or not grant a visa if not satisfied, that an applicant meets relevant statutory criteria;

   (b)fact-finding can only be impugned where the factual determination is illogical, irrational or lacking a basis in a finding or inferences supported on logical grounds: SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58; (2012) 202 FCR 1; (2012) 289 ALR 463; (2012) 127 ALD 1 at [52] per McKerracher J;

   (c)Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 266 ALR 367; (2010) 84 ALJR 369; (2010) 115 ALD 248 (“SZMDS”) sets a very high threshold for findings of irrationality or illogicality, and that reasonable minds might differ as to the decision or finding to be made on the basis of the evidence is insufficient to establish irrationality or illogicality: SZMDS at [131] per Crennan and Bell JJ; and

   (d)the Tribunal’s finding that the spousal relationship between Mr Ruzario and the Sponsor had ceased on or about the day of the Church Wedding Ceremony (28 January 2012) was open to it on the evidence before the Tribunal and for the reasons it gave, and it cannot be said that no other rational or logical decision-maker could not have drawn the same conclusion.

   Consideration

   Law – unreasonableness

2. In certain circumstances unreasonableness, and more correctly, legal unreasonableness, may constitute jurisdictional error: Li at [63]-[76] per Hayne, Kiefel and Bell JJ.

3. Reasonableness is an implied condition on the valid exercise of the Tribunal’s statutory duty: Li at [92] per Gageler J. What is considered the legal standard of reasonableness is predicated on the scope and purpose of the statutory functions conferred upon the Tribunal under the Migration Act: Li at [67] and [74] per Hayne, Kiefel and Bell JJ. In Ministerfor Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1; (2016) 329 ALR 491 (“Stretton”) at [9] per Allsop CJ it was observed that:

   The conclusion that a decision is legally unreasonable by reference to the outcome, whether or not there are reasons therefor, is assisted by reference to expressions taken from cases such as those mentioned in [5] above. Any criticism that these explanations are circular and vague is to be met by attending to the terms, scope and policy of the statute and the values drawn from the statute and the common law that fall to be considered in assessing the decision. The terms, scope and policy of the statute and the fundamental values that attend the proper exercise of power - a rejection of unfairness, of unreasonableness and of arbitrariness; equality; and the humanity and dignity of the individual - will inform the conclusion, necessarily to a degree evaluative, as to whether the decision bespeaks an exercise of power beyond its source.

4. Legal unreasonableness is fact dependent and each case must be examined and determined in light of the individual circumstances and evidence in a proceeding: Stretton at [10] per

   
   

   Allsop CJ; Djokovic vMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 (“Djokovic”) at [30]-[33] per Allsop CJ, Besanko and O’Callaghan JJ (and cases there cited).

5. The relevant principles in relation to legal unreasonableness were conveniently summarised by the Federal Court in Pandey at [41] per Wigney J and included the following:

   (a) The requirement of reasonableness flows from or is connected with an implied legislative intention that a discretionary power that is statutorily conferred must be exercised reasonably: Li at [29], [63], [88]; Singh at [43].

   (b) Legal unreasonableness can be a conclusion reached by a supervising Court after the identification of an underlying jurisdictional error in the decision-making process. Or it can be a conclusion reached without necessarily identifying another jurisdictional error: Li at [27]-[28], [72]; Singh at [44]. In the latter case unreasonableness may be taken to be unreasonableness from which an undisclosed error may be inferred: Li at [27], [68]; Singh at [44].

   (c) Unreasonableness can be inferred where the decision appears to be arbitrary, capricious, without common sense or “plainly unjust”: Li at [28], [110]; Singh at [44].

   (d) In those circumstances, where reasons are given, the supervising Court is concerned with seeing if there is an evident, transparent and intelligible justification within the decision-making process: Li at [105]; Singh at [44]-[45]. The intelligible justification must lie within the reasons given by the decision-maker: Singh at [47].

   (e) Regard can also be given to the outcome of the decision: whether the “decision falls within a range of possible, acceptable outcomes which are defensible in respect of fact and law”: Li at [105] (Gageler J quoting Dunsmuir v New Brunswick [2008] 1 SCR 190 at 220-221; Singh at [44]-[45].

   (f) The legal standard of reasonableness and the indicia of legal unreasonableness will need to be found in the scope, subject and purpose of the particular statutory provisions in issue in any given case: Li at [67]; Singh at [48]. In the case of discretionary powers vested in the Tribunal, the location of these powers in the statutory scheme, as aids to the performance of a review function, is important: Singh at [49].

   (g)       …

   (h)      …

   (i)        …

   (j) Properly applied, a standard of legal reasonableness does not involve substituting a Court's view as to how a discretion should be exercised for that of a decision-maker: Li at [30], [66]; Singh at [47]. The test of legal unreasonableness is stringent: Li at [113].

6. With respect to matters of illogicality and irrationality in fact-finding, the Court notes and adopts the Minister’s submissions at [55(b) and (c)] above, insofar as they set out the law taken from SZMDS and SZOOR.

   Tribunal Decision

7. Because unreasonableness is fact-dependent, it is convenient to set out some of the Tribunal’s findings and conclusions, as follows (noting that any reference to “26 January 2012” should be read as “28 January 2012”: see [22] and [23(f)] above):

   (a)at CB 562 at [118] the Tribunal found that the spousal relationship between Mr Ruzario and the Sponsor “had ceased on or about the day of the church ceremony”, that is 28 January 2012;

   (b)in making assessments for the purposes of considering the circumstances of the social aspects of the relationship and the nature of the commitment to each other for the purposes of reg 1.15A(3) of the Migration Regulations the Tribunal observed as follows at CB 562 at [119(c) and (d)]:

   c.With respect to social aspects of the relationship the Tribunal accepts that up to the date of cessation of the relationship the parties had represented to others as being married to each other. However, by her negative conduct and attitude toward the applicant, the sponsor had on several occasions conveyed her significant level of frustration and noncommitment to her friends and her own family. Whilst there is evidence of sight seeing trips undertaken by the applicant and sponsor together these were few in number. The Tribunal considers minimal weight can be given to the social aspects of their relationship;

   d. With respect to the nature of their commitment to each other, the Tribunal has found that up to the point of cessation of relationship the parties had spent little time alone in each other’s company. Further, the fact that they first met online in May 2011 and married in a civil ceremony only one month later is indicative of there being a degree of haste in deciding to marry. By the time of the church ceremony the Tribunal has found that the sponsor was not then genuinely committed to the relationship; as from the date of church ceremony to cessation of relationship there is minimal evidence of there being commitment by the sponsor to the relationship. The evidence is indicative of the sponsor having significant reservations about their compatibility as at time of arrival into Australia; there is little evidence of the sponsor drawing emotional support and companionship from the relationship.

   (c)at CB 562-563 at [first 120 (second a)-(c)] made the following findings for the purposes of s 5F of the Migration Act:

   a.Prior to 26 January 2012 there was mutual commitment to a shared life as a married couple to the exclusion of all others; from that date onwards however, the Tribunal finds that mutual commitment did not exist, the sponsor having considerable doubts about he [sic] future of the relationship;

   b.Prior to 26 January 2012, whilst the parties had cohabited infrequently, this was not on a permanent basis. However, after 26 January 2012 the parties did live separately and apart on a frequent basis, evidenced by separate sleeping and living arrangements. From the arrival into Australia to the point of cessation of relationship, the parties lived separate lives within the sponsor’s premises. The evidence strongly indicates that from the sponsor’s perspective, living separate lives was to be a permanent arrangement with the applicant being requested to sleep in separate bedroom;

   c. as at 26 January 2012 there was not mutual commitment to a shared life as a married couple to the exclusion of all others, the weight of the evidence supporting a finding that the sponsor was no longer committed.

   (Emphasis in original)

   (d)at CB 563 at [121]-[122] made the following findings with respect to the alleged family violence:

   121.The Tribunal finds upon the evidence that the claimed family violence as alleged occurred from about 21 February 2012 (being when they arrived into Australia) to the point of departure of the applicant from the premises. There are no allegations (actual or inferred) of family violence having occurred prior to this date in India or elsewhere. The Tribunal notes that the family violence has to have occurred subsequent to the applicant having entered Australia.

   122. The Tribunal notes the provisions of sub-regulation 1.23(12) which provides that for the purposes of sub-regulation 1.23(11), the Minister (the Tribunal here) must be satisfied that the relevant family violence, or part of the relevant family violence, occurred while the married relationship (or de facto relationship) existed between the alleged perpetrator and the spouse (or de facto partner) of the alleged perpetrator. In this matter the Tribunal has found that the relationship ceased as at 26 January 2012, several weeks prior to the alleged dates of infliction of family violence by the applicant. It follows that the Tribunal cannot be satisfied that relevant family violence, or a part of the relevant family violence, has occurred while a married or de facto relationship existed between applicant and spouse. The applicant is unable to satisfy the provisions of sub-regulation 1.23(12) and, as a consequence, the provisions of sub-regulation 1.23(11). For this reason the applicant cannot be taken to have suffered family violence, and the alleged perpetrator is taken to have committed family violence.

   (Emphasis in original)

   (e)concluded that Mr Ruzario did not meet the requirements of cl 100.221(4) of Sch 2 to the Migration Regulations, and therefore affirmed the Delegate’s Decision not to grant Mr Ruzario a Partner Visa: CB 563 at [123].

   Generally

8. The Tribunal’s consideration of the facts was detailed and comprehensive, as might be expected in a Tribunal Decision running to some 124 paragraphs. The Tribunal set out, comprehensively, all of the written and oral evidence provided to it by Mr Ruzario, and addressed the relevant aspects thereof. The Tribunal also addressed the relevant criteria for the purposes of cl 100.221of Sch 2 to the Migration Regulations, and for that purpose made the necessary assessments required by s 5F of the Migration Act and reg 1.15A of the Migration Regulations. It cannot be said that the Tribunal’s consideration of the facts and the relevant criteria was arbitrary, capricious, without common sense or unjust, and the reasons given have an evident, transparent and intelligible justification, and whilst a differently constituted Tribunal may have dealt differently with the matter, or some aspects thereof, it cannot be said that the conclusions reached in relation to factual matters, and the resultant findings, in the Tribunal Decision were ones which no other rational decision-maker might have made: Pandey at [41(a)-(f)] per Wigney J (and cases there cited); SZMDS at [130]-[131] per Crennan and Bell JJ.

   Weight

9. For the sake of completeness, the Court observes that if Mr Ruzario is complaining about the weight attached to the evidence by the Tribunal, it suffices to observe that the question of weight is generally a matter for the Tribunal: Peko-Wallsend, CLR at 42 per Mason J; Wu Shan Liang, CLR at 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ; Tran at [5]-[7] per Kiefel, RD Nicholson and Downes JJ; Lee at [27] per French J, and here the Tribunal carefully considered and weighed all the relevant evidence before arriving at findings and conclusions that were open on that evidence.

   Seventh particular

10. The seventh particular is based upon a misconceived inconsistency in the Tribunal Decision. It is said that the inconsistency is between a finding that immediately prior to the Church Wedding Ceremony (on 28 January 2012) there was a mutual commitment to a shared life as a married couple between Mr Ruzario and the Sponsor, and a finding that two days before the Church Wedding Ceremony (on 26 January 2012) the mutual commitment “had suddenly disappeared”. The misconception arises because the latter alleged finding was never made in respect of the 26 January 2012 date, that date, to the extent that it appears in the Tribunal Decision as the date of the Church Wedding Ceremony is a typographical error for the reasons set out at [22] and [23(f)] above. As is evident from the summary of the Tribunal Decision at [6]-[9] above, and the extracts from the Tribunal Decision set out at [49] and [61] above, there was more than sufficient evidence (arising in particular from the Sponsor’s conduct, and especially from the Sponsor’s conduct toward Mr Ruzario) to justify the Tribunal’s finding of a lack of mutual commitment to a shared life as a married couple. For similar reasons to those set out at [62], the Tribunal’s finding adverted to in the seventh particular is not vitiated by unreasonableness and, therefore, the seventh particular is not made out, and does not establish jurisdictional error in the Tribunal Decision.

    Conclusion

11. For the reasons set out at [62]-[64] above, it cannot be said that either the Tribunal Decision or the Tribunal’s decision-making processes were vitiated by unreasonableness. The Unreasonableness Ground is, therefore, not made out and does not establish jurisdictional error in the Tribunal Decision.

    Construction of Criteria Ground

12. Raised in the Minister’s capacity as a model litigant, the Minister’s Further Submissions refer to the Federal Court judgment in El Jejieh, and the subsequent judgment of the Federal Circuit Court in Sharma in relation to the proper construction of cl 100.221(4) of Sch 2 of the Migration Regulations, which is set out at [17] above.

13. In El Jejieh at [202]-[208] per Wigney J, the Federal Court considered the proper construction of cl 100.221(4) of Sch 2 to the Migration Regulations as follows:

    202This ground of appeal raises an issue that was not ventilated before the primary judge. Mr El Jejieh was given leave to raise it on appeal notwithstanding. It hinges on the proper construction of the criterion in cl 100.221(4) of Sch 2 to the Regulations.

    203The relevant criteria for the grant of a Subclass 100 visa were outlined earlier in these reasons. One way that Mr El Jejieh was able to meet the criteria was to establish that he: was the holder of a Subclass 309 visa; was the spouse of his sponsoring partner; and two years had passed since he applied for the visa: cl 100.221(2) Another way he was able to meet the criteria was to establish that he: first entered Australia as the holder of a Subclass 309 visa; continued to hold that visa; would meet the requirements of cl 100.221(2) except that the relationship between him and his sponsoring partner had ceased; and he had suffered family violence committed by the sponsoring partner: cl 100.221(4).

    204It was tolerably clear that Mr El Jejieh was pursuing his review application before the Tribunal on the basis of cl 100.221(4). He had provided material to the Tribunal which included claims that he had suffered family violence committed by … [name deleted]. The Tribunal was aware of those claims and asked Mr El Jejieh about them during the hearing. The Tribunal, however, made no findings concerning those claims. It found that it did not need to make any such findings because it found that there had never been a genuine spousal relationship between Mr El Jejieh and … [name deleted]. In so finding, the Tribunal misconstrued the requirements of cl 100.221(4) and, as a result, failed to complete the exercise of its review jurisdiction.

    205The requirements of cl 100.221(4) have just been set out. They do not include a requirement that the applicant demonstrate that the applicant’s relationship with his or her sponsoring partner was a genuine relationship. The applicant does have to establish that he or she entered Australia as the holder of a subclass 309 visa and continued to hold that visa. A criterion for the grant of a subclass 309 visa is that the applicant was, at the time of application and decision, a spouse of, relevantly, an Australian citizen. Thus, if the applicant establishes that he or she held a Subclass 309 visa at the time they entered Australia and continued to hold that visa, in a sense that demonstrates that they were the spouse of an Australian citizen. But they do not need to demonstrate that fact separately. They need only demonstrate that they held and continue to hold a Subclass 309 visa.

    206It might perhaps be argued that the requirement, in cl 100.221(4)(b), which involves the cessation of the relationship between the applicant and the sponsoring partner, implies that there was a relationship in the first place. For the reasons already given, however, the relevant requirement in cl 100.221(4) is that the applicant held and continued to hold a Subclass 309 visa, not that there was a relationship. It might perhaps be added, in this context, that if the Minister became aware of information that suggested that the applicant for a Subclass 100 visa who held a Subclass 309 visa was never in a genuine relationship with his or her spouse, it would most likely be open to the Minister to cancel the applicant’s Subclass 309 visa. It would then follow that the applicant would not meet the criteria for the grant of a Subclass 100 visa. That did not, however, occur in this case.

    207Mr El Jejieh entered Australia as the holder of a Subclass 309 visa and continued to hold that visa at the time of his review application. While his relationship with … [name deleted] had ceased by that time, he claimed that he met cl 100.221(4) because he suffered family violence committed by … [name deleted]. The Tribunal was required to consider that claim. Its failure to do so was amounted to a failure of it to exercise its review jurisdiction.

    208Grounds [sic] 9 of Mr El Jejieh’s amended notice of appeal is accordingly made out.

14. In El Jejieh the Tribunal had made no findings about the applicant’s claims of family violence. It formed the view that it did not need to make such findings because it had found that the applicant had never been in a genuine spousal relationship with the sponsor: El Jejieh at [202] per Wigney J. The Federal Court found that, in so finding, the Tribunal misconstrued the requirements of cl 100.221(4) of Sch 2 of the Migration Regulations and, as a result, failed to complete the exercise of its review jurisdiction: El Jejieh at [202] per Wigney J.

1. In Sharma the Tribunal had taken essentially the same approach as was taken in El Jejieh. The Tribunal considered first whether it was satisfied that there was a genuine spousal relationship between the sponsor and the applicant, and having found there was not, it did not consider whether the family violence exceptions might apply. The Federal Circuit Court in Sharma at [14] per Judge Vasta noted there was nothing novel in that approach, and that that approach seemed consistent with authorities dealing with the similarly worded cl 820.221 of Sch 2 to the Migration Regulations: citing Kaur v Minister for Immigration and Border Protection [2014] FCA 1251 and Minister for Immigration and Border Protection v Truong [2016] FCAFC 54. The Federal Circuit Court considered that by reason of the judgment of the Full Court of the Federal Court in SZGME v Minister for Immigration and Citizenship [2008] FCAFC 91; (2008) 168 FCR 487; (2008) 102 ALD 31 (“SZGME”) at [42]-[43] per Black CJ, Moore and Allsop JJ, it was bound to follow the judgment in El Jejieh: Sharma at [22]-[24] per Judge Vasta, but only did so on the basis of precedent, saying that but for the doctrine of precedent it would have refused to follow El Jejieh on the basis that the judgment “was plainly wrong”: Sharma at [22] per Judge Vasta.

2. The same issue arose in Gupta vMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1646; (2021) 360 FLR 25 (“Gupta”) (judgment in which was handed down after this matter was heard), and, as in Sharma, the Federal Circuit Court considered it was bound to follow the judgment in El Jejieh: Gupta at [93]-[95] per Judge Kendall, and consequently found that the Tribunal decision in that case was affected by jurisdictional error: Gupta at [95]-[96] per Judge Kendall.

3. Gupta was appealed. The appeal was allowed by the Full Court of the Federal Court in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Gupta [2022] FCAFC 51 (“Gupta Appeal”). The judgment in Gupta Appeal was delivered last week. Because it deals purely with the construction of cl 100.221 of Sch 2 to the Migration Regulations, which was a matter raised by the Minister’s Further Submissions, and upon which both Mr Ruzario and the Minister were given the opportunity to be heard, and because it is binding on this Court in any event: SZGME at [42]-[43] per Black CJ, Moore and Allsop JJ, it is unnecessary to hear further submissions from the parties on this point.

4. In Gupta Appeal at [46] per Farrell, Snaden and Abraham JJ the Full Court of the Federal Court:

   (a)did not agree with the reasoning in El Jejieh at [204]-[206] per Wigney J;

   (b)noted that the issue of the construction of cl 100.221(4)(b) of Sch 2 to the Migration Regulations was neither considered by the Federal Circuit Court at first instance, nor raised in the notice of appeal, in El Jejieh, and was only advanced by Counsel for Mr El Jejieh on the appeal with leave to rely on an amended notice of appeal granted over the Minister’s objection: El Jejieh at [111] per Wigney J; and

   (c)observed that other arguably relevant Federal Court judgments were not referred to in El Jejieh and did not appear to have been drawn to the Federal Court’s attention.

5. In Gupta Appeal at [43] per Farrell, Snaden and Abraham JJ the Full Court of the Federal Court found as follows with respect to the correct interpretation of cl 100.221(4) of the Migration Regulations:

   In our opinion, the correct interpretation of cl 100.221(4) of the Migration Regulations is that, at the time of decision, the decision-maker must be satisfied that:

   (a) The applicant for a permanent partner visa holds a subclass 309 visa: cl 100.221(4)(a); and

   (b) The married or de facto relationship within the meaning of s 5F or s 5CB of the Migration Act between the permanent partner visa applicant and the sponsoring partner had “ceased”: cl 100.221(4)(b); and

   (c) Since the applicant for the permanent partner visa arrived in Australia as the holder of that subclass 309 visa, the sponsor committed family violence (see Div 1.5 of the Migration Regulations) on the visa applicant or a member of the family unit of the visa applicant, the sponsor or both: cl 100.221(4)(c)(i); or

   (d) The applicant for the permanent partner visa has custody or joint custody of, or access to, or has a residence order or contact order made under the Family Law Act 1975 (Cth) relating to at least one child in respect of whom the sponsor has been granted joint custody or access by a court or has a residence order or contact order, or has an obligation under a child maintenance order made under the Family Law Act, or any other formal maintenance obligations.

   (Emphasis in original)

6. The Full Court of the Federal Court went on to observe that where the Tribunal found no marital relationship as defined in s 5F of the Migration Act existed at any time, the consequence was that the question of family violence did not arise for consideration: Gupta Appeal at [44] per Farrell, Snaden and Abraham JJ, agreeing with Hanna v Minister for Immigration and Border Protection [2016] FCA 282; (2016) 150 ALD 299 at [23] per Jagot J.

7. In having regard to what was said in Gupta Appeal at [43] per Farrell, Snaden and Abraham JJ with respect to the criteria under cl 100.221(4) of Sch 2 to the Migration Regulations, it is evident that Mr Ruzario satisfied the criteria under:

   (a)cl 100.221(4)(a) of Sch 2 to the Migration Regulations because he held a Provisional Partner Visa at the time of the Tribunal Decision: CB 547 at [22(c) and (k)]; and

   (b)cl 100.221(4)(b) of Sch 2 to the Migration Regulations because the marital relationship he had had with the Sponsor had ceased with effect from on or about 28 January 2012: CB 562 at [118] and [120 (second a)].

8. That leaves the criteria under cl 100.221(4)(c) of Sch 2 to the Migration Regulations to be satisfied by asking the question whether, since Mr Ruzario had arrived in Australia as the holder of a Provisional Partner Visa, had the Sponsor committed family violence on Mr Ruzario. Relevant to this question is the fact that the marital relationship was held by the Tribunal to have ceased on or about 28 January 2012: CB 562 at [118] and [120 (second a)]. The Tribunal found that family violence alleged by Mr Ruzario was not alleged to have commenced until several weeks later, namely from about 21 February 2012: CB 563 at [121]. Those factual findings made by the Tribunal were open on the evidence before it.

9. Regulation 1.23(11) and (12) of the Migration Regulations provides as follows:

   (11)The alleged victim is taken to have suffered family violence, and the alleged perpetrator is taken to have committed family violence, if:

   (a)an application for a visa includes a non‑judicially determined claim of family violence; and

   (b) the Minister is satisfied under paragraph (10)(b) that the alleged victim has suffered relevant family violence.

   (12)For subregulation (11), the Minister must be satisfied that the relevant family violence, or part of the relevant family violence, occurred while the married relationship or de facto relationship existed between the alleged perpetrator and the spouse or de facto partner of the alleged perpetrator.

10. The effect of reg 1.23(11) and (12) of the Migration Regulations, both generally, and more particularly as it relates to the facts found by the Tribunal, was correctly described in the Tribunal Decision at CB 563 at [121]-[122], set out at [61(d)] above. With respect to the issue of family violence, the Tribunal correctly applied the law to factual conclusions (which were open on the evidence), and it follows that the Tribunal was correct to decide that Mr Ruzario did not suffer family violence as defined in reg 1.23(11) and (12) of the Migration Regulations because the alleged family violence post-dated the cessation of his marital relationship with the Sponsor. It follows from that that Mr Ruzario was unable to satisfy the criteria under cl 100.221(4)(c) of Sch 2 to the Migration Regulations which required that the Sponsor had committed family violence against Mr Ruzario during the period of the marital relationship.

11. It follows from what is set out at [75]-[78] above that there was, therefore, no jurisdictional error in the Tribunal Decision in relation to the construction, or application, of cl 100.221(4) of Sch 2 to the Migration Regulations.

12. In circumstances where the Full Court of the Federal Court has decided in Gupta Appeal that El Jejieh was wrongly decided, it is unnecessary to deal with the Minister’s argument that El Jejieh is distinguishable because that argument assumes that El Jejieh was correctly decided, which it was not.

    CONCLUSION AND ORDERS

13. The Court has concluded that, for the reasons set out at [22]-[80] above, the Tribunal Decision is not affected by jurisdictional error. It follows that the Judicial Review Application must be dismissed. There will be an order accordingly.

14. The Court will hear the parties as to costs.

I certify that the preceding eighty-two (82) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev.

Associate:

Dated:       6 April 2022