SALONGA v Minister for Immigration

[2014] FCCA 1173

FEDERAL CIRCUIT COURT OF AUSTRALIA

SALONGA v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1173

Catchwords:
MIGRATION – Judicial review – Migration Review Tribunal – spousal visa application – relevant family violence – whether the decision of the tribunal was illogical – tribunal’s decision open to it – application dismissed – costs awarded.

Legislation:  

Migration Act 1958 (Cth) s.65,
Migration Regulations 1994 (Cth) rr.1.21, 1.23, 1.24, 1.25

Minister for Immigration and Citizenship v Li [2013] HCA 18
Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21

Applicant: EFREN JR REYES SALONGA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: BRG 537 of 2013

Judgment of: Judge Burnett

Hearing date: 12 March 2014

Date of Last Submission: 12 March 2014

Delivered at: Brisbane

Delivered on: 12 March 2014

REPRESENTATION

Counsel for the Applicant: Ms G. Lawson

Solicitors for the Applicant: Australink Alliance Lawyers and Migration Consultants

Counsel for the Respondent: Mr S. McLeod

Solicitors for the Respondent: Sparke Helmore Lawyers

ORDERS

1. The application filed on 17 January 2014 is dismissed.

2. The applicant pay the respondent’s cost of and incidental to the application fixed in the sum of $5,800.00.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT BRISBANE

BRG 537 of 2013

EFREN JR REYES SALONGA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore)

1. The applicant seeks judicial review of a decision made by the Migration Review Tribunal (“the Tribunal”) on 29 May 2013. He had sought review before the Tribunal of a decision made by the delegate of the Minister on 18 January 2011 refusing him a Partner (Migrant) (Class BC) visa under s.65 of the Migration Act 1958 (Cth) (“the Act”). This claim was made in the spousal subclass (subclass 100). As the title suggests, this class of visa is open to spouses of Australian citizens.

2. A number of time of decision requirements must be met to satisfy the relevant visa.  Materially for this application, the only qualifying issue before the Tribunal was whether or not the applicant had suffered “family violence” as defined before the applicant and his former spouse had separated. Schedule 2 cl.100.221(4) of the Migration Regulations 1994 (Cth) (“the Regulations”) provides, inter alia, that its terms are satisfied if:

   “(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;

   …

   has suffered family violence committed by the sponsoring partner;”

3. For the purposes of cl.100.221(4), “relevant family violence” is defined in r.1.21 of the Regulations as follows:

   ““relevant family violence” means conduct, whether actual or threatened, towards:

   (a)  the alleged victim; or

   (b)  a member of the family unit of the alleged victim; or

   (c)  a member of the family unit of the alleged perpetrator; or

   (d)  the property of the alleged victim; or

   (e)  the property of a member of the family unit of the alleged victim; or

   (f)  the property of a member of the family unit of the alleged perpetrator;

   that causes the alleged victim to reasonably fear for, or to be reasonably apprehensive about, his or her own wellbeing or safety.”

4. Regulation 1.25(1) requires proof of family violence by a statutory declaration “made by the spouse or de facto partner of the alleged perpetrator.” However, there is a proviso with respect to a claim of family violence provided by r.1.23(12), which provides:

   “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.”

5. It is not in dispute that the applicant, who is a citizen of the Philippines, was married to the sponsoring spouse in Brisbane on 31 October 2008. At that time, the applicant was a resident of Saudi Arabia. He had made application for a Class UF Partner (Provisional) visa (subclass 309) at the Australian consulate general in Dubai on 3 December 2008. It was approved and the applicant was informed by a letter dated 6 January 2010 and an email the following day that his approval was subject to him making initial entry into Australia by 23 October 2010. It is not clear what happened between 3 December 2008 and 27 February 2010, but in any event he made arrangements leading to his arrival in Australia, presumably on the strength of the Minister’s letter of 6 January 2010. 

6. Prior to his arrival in Australia, the applicant had been employed as a supervisor at McDonalds in Dubai. The sponsoring spouse was employed as a mail officer with Australia Post.  It was also evident to the Tribunal that the sponsoring spouse had been previously married and had two children to that earlier marriage. Those children were aged approximately nine and sixteen at the time of these events. It is also noted by the Tribunal that she too was of Philippine ethnicity and that her first marriage had ended in divorce in 2005.

7. Those matters are material because of matters relevant to the prospect of the sponsoring spouse seeking to re-engage with her former spouse.  The material before the Tribunal indicated that tensions had arisen in the relationship between the applicant and the sponsoring spouse from about November 2009.  As earlier noted, given that it is not plain how the relationship progressed between December 2008 when the applicant first left Australia to return to Saudi Arabia and February 2010 when he returned, the prospect of tension is not surprising.

8. The applicant arrived in Australia on 27 February 2010.  That same day the sponsoring spouse and her children departed Australia for the United States for a three week holiday.  That occurred notwithstanding their notice that the applicant was intending to come to Australia.  Further, it is not in issue that an event occurred which is said to have constituted abuse of the applicant by the sponsor from the time he first saw her, which was sometime in mid-March 2010.  It is to be noted that the sponsoring spouse returned from her overseas holiday and about a week elapsed between her return from overseas and the applicant and the sponsoring spouse first having contact.

9. At [28] of its decision the Tribunal identified one of the central issues to be resolved as being whether the relationship between the applicant and the sponsoring spouse was ongoing at the time the relevant family violence commenced. Concerning those issues, the Tribunal stated:

   “[39] For the purposes of this decision the Tribunal is prepared to accept that the applicant’s Statutory Declaration meets the requirements of r.1.25(2) and the Statutory Declarations of Dr Singh and Mr Horan meet the requirements of r.1.26(a)-(g). The Tribunal is therefore satisfied that the applicant seeks to satisfy a prescribed criterion that he has suffered family violence and that the evidence of family violence has been presented in accordance with r.1.24. The Tribunal therefore finds that r.1.23(9) is satisfied. Accordingly, the Tribunal finds that a non-judicially determined claim of family violence has been made under r.1.23(9). Likewise, for the purposes of this decision, the Tribunal is prepared to accept the applicant’s evidence that the conduct of his wife caused him to have reasonable fear for his own wellbeing or safety. That being so the Tribunal is satisfied that the applicant has suffered relevant family violence for the purposes of r.1.23(10)(b). For the purposes of this decision the Tribunal has found that the applicant has made an application for a visa that included a non-judicially determined claim of family violence and that the applicant has suffered relevant family violence. That being so the Tribunal finds that the requirements of r.1.23(11) have been met. However r.1.23(12) states that for subregulation (11), the Tribunal must be satisfied that the relevant family violence, or part of the relevant family violence, occurred when the applicant and his sponsor were in a spousal relationship.

   [40] To determine whether a married relationship existed between the sponsor and the applicant at the time the relevant family violence is said to have occurred the Tribunal needs to be satisfied that the parties have a mutual commitment to a shared life to the exclusion of all others, that their relationship is genuine and continuing, and that they live together or do not live separately and apart on a permanent basis ... For the purposes of this decision, the Tribunal is prepared to accept that, when the applicant provided finances to the sponsor while he was overseas, he did so because he was committed to an ongoing and genuine relationship with her. Likewise, for the purposes of this decision, the Tribunal is prepared to accept that the couple intended to share a household and present themselves as a couple when they both lived in the same country. That being so the Tribunal is prepared to accept that the applicant and sponsor were committed to a genuine and ongoing relationship until the sponsor returned to Australia from America. When the sponsor first returned to Australia she made no attempt to contact the applicant. The applicant and sponsor were both in Australia for about a week before seeing each other and that first contact was initiated by the applicant. In the view of the Tribunal, the applicant’s sponsor was no longer committed to a shared life with the applicant to the exclusion of all others, she no longer wanted to continue the relationship and she no longer wanted to live with the applicant when she first arrived back in Australia in late March 2010. When the sponsor first returned to Australia there was no shared household with the applicant, no pooling of finances, no social recognition of the relationship, no companionship and no emotional support drawn from each other.  During the hearing the Tribunal put to the applicant that, at very latest, the evidence suggested that the sponsor had decided to reconcile with her ex-husband when she returned to Australia from America and the applicant agreed. The applicant submitted to the Tribunal that the relevant family violence commenced at the end of March 2010 when he first saw his wife about a week after her return from America. The Tribunal has accepted for the purposes of this decision that the applicant suffered relevant family violence for the first time when the sponsor told him to leave her home and to go and live his own life.

   [41] On the basis of the evidence before it, the Tribunal finds that the relevant family violence occurred at least one week after the married relationship ceased. That is the relevant family violence did not occur while the married relationship existed between the alleged perpetrator and the spouse and therefore r.1.23(12) is not satisfied. Given the Tribunal has found that r.1.23(12) is not satisfied the applicant has not suffered family violence for the purposes of r.1.23(11) and that means the applicant has not suffered family violence for the purposes of cl.100.221(4)(c)(i).”

10. The applicant contends that this conclusion is in error.  In his amended application, his ground for this contention is, in effect, in one complaint.  Ground 1 notes:

    “1.     That the Migration Review Tribunal erred at law when it found that relevant family violence had first occurred at least one week after the “married relationship” had ceased.

    Particulars 

    (a)the finding by the second respondent that the relevant family violence first occurred when the wife asked the applicant to leave her home is illogical, irrational, or unreasonable because it is not consistent with the finding that the marital relationship had ceased at that time because: 

    (i)  it is a finding, pursuant to Regulation 1.21 of the Migration Regulations 1994 (Regulations), that that conduct caused the applicant to reasonably fear, or be reasonably apprehensive about his own wellbeing or safety;  and

    (ii) the applicant’s fear or apprehension must, by inference, have been related to his relationship with his wife and whether he could stay at her home;

    (b)alternatively the second respondent failed to understand or perform the task required of it because the second respondent did not properly consider:

    (i)  the requirements of Regulation 1.21 in making its finding that the relevant family violence first occurred when the wife asked the applicant to leave her home; or

    (ii) whether the applicant’s fear or apprehension, within the meaning of Regulation 1.21, was related to his relationship with his wife.”

11. In her submissions counsel for the applicant focused on a number of matters, which I shall address shortly. However, the thrust of her submissions was that given these matters the Tribunal’s decision was illogical. She contended that, given the alleged illogicality, the decision was one no reasonable decision-maker could have reached, and therefore given it constituted of itself a failure to exercise the jurisdiction and thereby constituted jurisdictional error. 

12. The principal facts relied upon by the applicant, in addition to the matters which have been referred to in the decision of the Tribunal, include matters not referred to, such as a number of Facebook photographs which post-date the alleged date of conclusion of the relationship and a number of bank deposits also made after the date of conclusion of the relationship. Although all the material which was placed before the Tribunal and which is included in its decision was not expressly addressed, it is apparent from the reasons that the Tribunal addressed the significant issues relevant before it.

13. The applicant complained that to some extent the Tribunal relied upon speculation as, for instance, there was no direct evidence that the relationship had ended. In that sense, the Tribunal did indeed embark upon the exercise of making a finding.  However, that of itself does not demonstrate that the Tribunal’s conclusions were illogical. Ultimately, the principles applicable to a consideration of claims of reasonableness and illogicality have been revisited by the High Court in Minister for Immigration and Citizenship v Li [2013] HCA 18. In that case French CJ addressed the point advanced by the applicant, particularly the issue of illogicality as discussed by the earlier decision of Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611. There his Honour at [30] observed:

    “The requirement of reasonableness is not a vehicle for challenging a decision on the basis that the decision-maker has given insufficient or excessive consideration to some matters or has made an evaluative judgment with which a court disagrees even though that judgment is rationally open to the decision-maker. Gleeson CJ and McHugh J made the point in Eshetu that the characterisation of somebody’s reasoning as illogical or unreasonable, as an emphatic way of expressing disagreement with it, “may have no particular legal consequence.” As Professor Galligan wrote:

    “The general point is that the canons of rational action constitute constraints on discretionary decisions, but they are in the nature of threshold constraints above which there remains room for official judgment and choice both as to substantive and procedural matters.  In other words, within the bounds of such constraints, different modes of decision-making may be employed.””

14. Similar observations were made in Minister for Immigration and Citizenship v Li by Hayne, Kiefel and Bell JJ at [64] and Gageler J at [98]. Ultimately, I consider the Tribunal to have acted reasonably. Its decision is not, in my view, illogical, and its conclusions can be justified on the primary facts that it has found. It is not to the point that a differently constituted Tribunal may have considered the matter differently and reached a different conclusion. Provided that the decision reached was reasonably open to it, as I consider it was, it is not for this Court to interfere. To do so would lead to an impermissible merits review.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Burnett.

Date:5 June 2014