Shadali v Minister for Immigration
[2007] FMCA 1230
•30 July 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SHADALI v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1230 |
| MIGRATION – Migration Review Tribunal – Partner Visa – whether misconstruction of Migration Regulations – whether jurisdictional error – spousal relationship – relevance of domestic violence. |
| Migration Regulations 1994 |
| Minister for Immigration Local Government and Ethnic Affairs v Dhillon (Unreported 8 May 1990) Collins v Minister for Immigration [2003] FMCA 571 Sevim v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1597 Minister for Immigration and Citizenship v Zaouk [2007] FCAFC 47 |
| Applicant: | NAIMO ABDIRAHMAN SHADALI |
| First Respondent: | MINISTER OF IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File number: | MLG 94 of 2007 |
| Judgment of: | McInnis FM |
| Hearing date: | 13 June 2007 |
| Delivered at: | Melbourne |
| Delivered on: | 30 July 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr C.G. Fairfield |
| Solicitors for the Applicant: | Victoria Legal Aid |
| Counsel for the First Respondent: | Mr W.S. Mosley |
| Solicitors for the First Respondent: | Australian Government Solicitor |
ORDERS
Leave be granted to the Applicant to file and serve the Amended Application dated 7 June 2007
The Application as amended be dismissed.
The Applicant shall pay the First Respondent’s costs fixed in the sum of $5,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 94 of 2007
| NAIMO ABDIRAHMAN SHADALI |
Applicant
And
| MINISTER OF IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(As corrected)
The Applicant relies upon an amended application filed 8 June 2007 seeking judicial review of a decision of the Migration Review Tribunal (the Tribunal) dated 15 December 2006.
In its decision the Tribunal affirmed a decision of a delegate of the First Respondent who had found that the visa Applicant is not entitled to the grant of a partner (migrant) (Class BC) visa (the visa).
The Applicant is a female national of Somalia though resident in Kenya. On 9 June 2003 the Applicant lodged a combined application for a subclass 309 visa ("the provisional visa") and a subclass 100 visa.
The Applicant was sponsored by an Australian citizen Mohamud Abdulle Jama (the sponsor).
Further background material is provided in the Tribunal's decision under the heading "Evidence". According to the Tribunal decision the sponsor had previously been married to Kin Wabari Jaba who the sponsor claimed had died and he was also married to Adar Mohamed Yusuf, with that marriage claimed to have ended in divorce on 14 October 2001. The reason for the divorce was claimed to be the refusal of that wife to migrate to Australia.
According to the Tribunal decision the Applicant claims not to have been in a spousal relationship prior to her claimed spousal relationship with the sponsor. The Applicant claimed to have known the sponsor all her life and that they commenced a relationship over the telephone on 2 April 2002.
The Tribunal notes that the Applicant previously applied for a provisional visa based on her relationship with the sponsor but that was refused on the basis that their marriage which was solemnised by proxy was not valid under local law. The sponsor travelled to Kenya and married the Applicant.
After making application for the provisional visa and the visa on the ground that the Applicant was the spouse of the sponsor, it is noted that the Applicant was interviewed by officers of the First Respondent's Department on 31 July 2003. On 10 March 2004 the sponsor advised the First Respondent's Department that he wanted to "stop" the application and withdraw his sponsorship. This information arose when the sponsor allegedly attended the Australian High Commission in Nairobi on 10 March 2004 and provided a divorce certificate and accordingly informed an officer that he wished to withdraw his sponsorship for the Applicant. According to correspondence from the second secretary (Immigration) of the Australian High Commission in Nairobi to another Departmental officer (Court Book p.40) the sponsor was advised that if he wished to withdraw his sponsorship that he would "need to do so in writing." In the same letter the author notes, "No written withdrawal has been received to date and on 24 April 2004, a letter was sent to (the sponsor) to ascertain if he wished to proceed with or withdraw his sponsorship of (the Applicant)."
Accordingly, it would appear that there has been no written advice confirming a desire on the part of the sponsor to withdraw his sponsorship. Instead by a letter dated 7 May 2004 addressed to the Australian High Commission in Nairobi (Court Book p.41) the sponsor relevantly states:
“I refer to your letter dated on 24 the April 2004 stating the condition of my application; I would like to certify that there is no problem between my wife and myself and that we love each other, as wife and husband.
Therefore, I wish to proceed with the Visa application. I have prepared her travel expenses and accommodation, and am looking forward to being with her in Australia.”
Based on evidence given by the Applicant at the hearing recited in detail by the Tribunal, it would appear that the Applicant had been told to marry the sponsor in April 2002 by an aunt. The sponsor is the son of the aunt’s sister. It is useful to set out the details of the evidence recorded by the Tribunal in its decision as follows:
“38.In April 2002 her aunt told her to marry the sponsor (her sister’s son). She protested that the sponsor was double her age and that she could not marry someone she did not know and love. Her aunt told her that unless she agreed to marry the sponsor she would throw her out of home. She tried to return to her mother in Somalia but had no money, no one to escort her back to Somalia and no one to help her. She was fearful of being thrown out her aunt’s home where she risked being arrested by the Kenyan police for not having a Kenyan identity card. Even if she wasn’t arrested she would not have been able to cope because she did not have any money. She did want to marry the sponsor but she had no alternative as she would not have survived on the streets.
39.In the time between her aunt telling her to marry the sponsor and their first meeting she and the sponsor had only spoken on the telephone once.
40.The sponsor travelled to Kenya in April 2003 to claim her irrespective of her feelings about the situation. She first met the sponsor when he arrived at her aunt’s home on 21 April 2003. Asked whether, despite the fact that the marriage had been arranged between her aunt and him, he asked her whether she consented the visa applicant responded that no, she had been traded like a commodity.
41.The sponsor stayed at her aunt’s home but in a separate bedroom with her aunt’s son. They were married according to his Islamic Law on 29 April 2003. Her aunt told her that as they were now married they should live together in their own place and, on 4 May 2003, she and the sponsor moved into a hotel.
42.They stayed in a hotel room for about six weeks and then the sponsor returned to Melbourne. It was a profoundly unhappy time for her and not at all like marriage should be. She and the sponsor did not develop an emotionally close relationship or present socially as a married couple. She was exploited by both her aunt and the sponsor. She was expected to report to her aunt every day, to do domestic chores all day and then return to the hotel in the evenings to be exploited sexually by the sponsor.
43.In the time between the sponsor’s return to Australia in June 2003 and his second trip to Kenya in February 2004 there was very little contact. When the sponsor left to return to Australia she went back to live with her aunt. The sponsor occasionally telephoned her aunt and, having spoken with her, would ask to speak with her son and daughter and only then wanted to speak with her. He sent her some letter but they were not affectionate; he was only sending them to provide her with documentary evidence of contact to submit to the embassy.
44.The sponsor visited her in Kenya again in February 2004. They stayed at the same hotel, again for about six weeks. The experience was the same as before, that is, she would report to her aunt’s place to do domestic chores all day and then return to the hotel in evenings where the sponsor subjected her to sexual abuse.
45.She arrived in Australia on 25 June 2004 and went to live with the sponsor in Springvale. Asked whether the experience was the same as the two earlier periods of cohabitation she responded that it was worse. It was cold (Melbourne winter) and the sponsor refused to let her use hot water. Asked whether during this time she and the sponsor developed an emotional relationship or a sense of companionship, she responded that they did not.”
(Court Book pp.131-132)
It will be noted from that chronology of events that the Applicant had arrived in Australia on 25 June 2004.
It is of significance that on 24 May 2004 the Applicant was granted the provisional visa (Court Book pp.42-44).
By letter dated 6 October 2004 the sponsor alleged that he had been "cheated" by the Applicant and stated further:
“... I traveled to get married in Nairobi first time in April 2003 whereby my marriage took place in Nairobi at that time, and before I came back I lodged Visa application for her at the Australian High Commission Nairobi; I traveled again February 2004 to spend time with my wife while awaiting her process to be finalized in Nairobi.
Fortunately everything went well and she came and joined me in Melbourne Australia on 25th June 2004, but unfortunately my wife became stubborn and strange person to me after the first ten days we stayed together, she threatens me that she will kill me, she tells me that her main reason of marrying me was to come to Australia and then ask for divorce.” (sic)
(Court Book p.45)
Further in the same letter, the sponsor attempts to ‘consult’ with the Applicant's relatives, and then relevantly states:
“... I told her, if this is why you married me just to come to Australia, you cheated me and I will tell the immigration about what has happened so that I may not be blamed for your deceit and wrongdoing.”
By letter dated 8 October 2004 addressed to the Applicant from the First Respondent's Department, the Applicant was advised as follows:
“Information provided to this office indicates the spouse relationship upon which your application was based has ceased. This is likely to result in the refusal of your application. However, before a decision is made on your application, you have the opportunity to provide a response, explaining your current circumstances and the reason for the breakdown of your relationship.”
(Court Book p.46)
It may be noted in passing that the correspondence from the First Respondent's Department does not suggest that there was no spousal relationship but rather that the relationship had "ceased". In any event the sponsor by letter dated 25 October 2004 advises the Department as follows:
“... I would to inform that (the applicant) and I have resolved our matter.
Therefore, I would like to withdraw the complaint as we now living happily as husband and wife, after counselling by community.
Your assistance in highly appreciated.” (sic).
(Court Book p.47)
The next item of correspondence which is relevant by way of background appears to be a letter from a "Community Development Worker" dated 2 December 2004 addressed to the Department on behalf of the Applicant. The letter relevantly states:
I am a Community Development worker at Women's Liberation Halfway House (WLHH), this is a non-government organisation providing practical and emotional support to women and children in or leaving situations of domestic violence. We operate under a Collective structure as a result all workers in this agency are competent persons as defined in the Migration Act.
This brief letter is to inform you that the above mentioned client's circumstances have changed. As a result of domestic violence she is no longer living with her partner …
We are currently preparing her application for Permanent Residency under the Domestic Violence Provisions. …”
(Court Book p.49)
It should be noted that in the correspondence from Women’s Liberation Halfway House (WLHH) it is claimed that the Applicant referred to the organisation on "30/11/04".
On 3 December 2004 the Department received another letter from the sponsor purportedly dated "26/11/04" whereby the sponsor advised the Department that he was withdrawing his sponsorship. In that letter the sponsor refers to his earlier correspondence and then relevantly states:
“But now our relationship is much more worse than it was before, I would like you to open up this case and decide on it. In brief, my wife arrived in Australia on 25 June 04, soon after she came the problem started and I tried to be patient with her since the time I wrote the letter to you. She says that the only reason she married me was to come to Australia and now that I came to Australia I can do what I want and what ever I told you was bare lie and all I wanted was to get into Australia.”
(Court Book p.50)
The sponsor refers to a willingness to pay the costs of a return ticket for the Applicant. The letter is typed save for the following handwritten paragraph at the end of the letter:
“Therefore, I hereby withdraw my sponsorship of (the applicant) as we are no longer living together as husband and wife.”
It should be observed that the sponsor does not specify a date when the parties separated.
On 19 January 2004 an application was made to the State Magistrates Court of Melbourne by the Applicant for an intervention order against the sponsor. The application was refused. The sponsor informed the Department about the application and the result in a letter dated 25 January 2005.
In that letter the sponsor states:
“I have stated in my previous letter to Immigration about the disagreement between my wife and myself. After submitting the letter to immigration that I stated withdraw my sponsorship, she claimed domestic violence and went Melbourne Magistrate Court seeking Intervention Order against me, but magistrate was refused her claim.” (sic)
(Court Book p.51)
On 18 July 2005 a delegate of the First Respondent refused to grant the Applicant the visa and the Applicant then applied on 16 August 2005 to the Tribunal for review of the delegate's decision.
On 9 August 2006 the Applicant's agent provided submissions to the Tribunal (Court Book pp.89-92) together with statutory declarations by the Applicant (Court Book pp.99-103) a counsellor (Court Book pp.93-98) and a draft statutory declaration from a case manager (Court Book pp.104-105) and a psychologist (Court Book pp.106-110).
The Tribunal conducted a hearing on 10 August 2006 and the Applicant gave evidence.
Relevant Legislation
The criteria for the grant of a subclass visa are set out in Part 100 of Schedule 2 of the Migration Regulations 1994 ("the Regulations"). It is noted that there are no time of application criteria. The time of decision criteria appears in clause 100.22 which relevantly provides:
‘100.22 Criteria to be satisfied at time of decision
100.221(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 a holder of a Subclass 309 (Spouse) (Provisional)) visa; or
(ii) …; and
(b)the applicant is the spouse of the sponsoring spouse; 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 and either:
(i) continues to be the holder of that visa; or
(ii) …
(b) the applicant would meet the requirements of subclause (2) or (2A) except that the relationship between the applicant and the sponsoring spouse 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) …
has suffered domestic violence committed by the sponsoring spouse;
(ii) …”
Spouse is defined in Regulation 1.15A(1) and (1A) of the Regulations. It is relevant to set out the Regulation as it appears in the Tribunal decision as follows:
“Migration Regulation 1.15A
Spouse
(1)For the purposes of these Regulations, a person is the spouse of another person if the 2 persons are:
(a)in a married relationship, as described in subregulation (1A); or
(b)in a de facto relationship, as described in subregulation (2).
(1A) Persons are in a married relationship if:
(a)they are married to each other under a marriage that is recognised as valid for the purposes of the Act; and
(b) the Minister is satisfied that:
(i) they have a mutual commitment to a shared life as husband and wife to the exclusion of all others; and
(ii) the relationship between them is genuine and continuing; and
(iii) they:
(A) live together; or
(B)do not live separately and apart on a permanent basis.
(2) …
(3)In forming an opinion whether 2 persons are in a married relationship, or a de facto relationship, in relation to an application for:
(ad) a Partner (Migrant) (Class BC) visa; or
(ae) a Partner (Provisional) (Class UF) visa; or
(af) a Partner (Residence) (Class BS) visa; or
(ag) a Partner (Temporary) (Class UK) visa;
the Minister must have regard to all of the circumstances of the relationship, including, in particular:
(a) the financial aspects of the relationship, including:
(i) any joint ownership of real estate or other major assets; and
(ii) any joint liabilities; and
(iii) the extent of any pooling of financial resources, especially in relation to major financial commitments; and
(iv) whether one party to the relationship owes any legal obligation in respect of the other; and
(v) the basis of any sharing of day‑to‑day household expenses;
(b) the nature of the household, including:
(i) any joint responsibility for care and support of children, if any; and
(ii) the parties' living arrangements; and
(iii) any sharing of responsibility for housework;
(c) the social aspects of the relationship, including:
(i) whether the persons represent themselves to other people as being married or in a de facto relationship with each other;
(ii) the opinion of the persons' friends and acquaintances about the nature of the relationship; and
(iii) any basis on which the persons plan and undertake joint social activities;
(d)the nature of the persons' commitment to each other, including:
(i) the duration of the relationship; and
(ii) the length of time during which the 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)In forming an opinion whether 2 persons are in a married relationship, or a de facto relationship, in relation to an application for a visa of a class other than a class specified in paragraph (3) (ad), (ae), (af) or (ag), the Minister may have regard to any of the factors set out in subregulation (3).
(5)If 2 persons have been living together at the same address for 6 months or longer, that fact is to be taken to be strong evidence that the relationship is genuine and continuing, but a relationship of shorter duration is not to be taken not to be genuine and continuing only for that reason.”
(Emphasis added)
The Tribunal Decision
Under the heading, "Discussion and Findings" the Tribunal sets out the relevant statutory framework and then refers to certain authorities most of which have been referred to by the parties during the course of submissions before the court. The Tribunal then states:
“64.Accordingly the Tribunal has, in this case, considered whether the sponsor and the visa applicant were in a spousal relationship before undertaking an analysis of whether domestic violence is taken to have occurred under Division 1.5 of the Regulations.
65.In Nassouh v Minister for Immigration and Multicultural Affairs [2000] FCA 788 the Federal Court held that subregulation 1.15A(3) set out mandatory considerations. Accordingly, the Tribunal, in forming an opinion whether a married relationship or de facto relationship exists must take into account the considerations set out in subregulation 1.15A(3).”
The Tribunal deals with the indicia set out in Regulation 1.15A of the Regulations after noting that the relationship ceased in December 2004. It dealt with the qualifying elements for a married relationship noting the parties were married to each other in Somalia on 29 April 2003 and that the parties' marriage was recognised as valid for the purpose of the Migration Act. The Tribunal then deals with the financial aspects of the relationship, the nature of the household and the social aspects of the relationship together with the nature of the persons' commitment to each other, whether there was a mutual commitment to a shared life as husband and wife to the exclusion of all others. In dealing with the last item the Tribunal considers separately the questions of, "Was the visa Applicant committed to a shared life with the sponsor? And, "Was the sponsor committed to a shared life with the visa Applicant?"
It is useful when considering the Tribunal decision to set out the following paragraphs dealing with the nature of the household and the social aspects of the relationship:
“The nature of the household
73.The Tribunal noted that the parties stayed together in a hotel during 2 visits made by the sponsor to Kenya.
74.The visa applicant asserted at paragraph 20 of her statutory declaration of 9 August 2006 that ‘At this time (the sponsor’s second visit), I found his personality very difficult compared to the first time (the sponsor’s first visit)’. This suggests that her cohabitation with the sponsor during his first visit was not particularly difficult. The Tribunal notes, however, that, in her sworn oral evidence at the hearing on 10 August 2006, the visa applicant asserted that, during this first period of cohabitation (May-June 2003), she and the sponsor did not present socially as a married couple and that the sponsor regularly subjected her to sexual abuse. While the sponsor’s treatment of her during their first period of cohabitation may have been less abusive than his subsequent conduct the Tribunal is nevertheless not satisfied that a genuinely spousal household was established during this first period of cohabitation. Nor was such a household established during the sponsor’s second visit when his treatment of her worsened.
75.The Tribunal notes that the parties cohabitated at the sponsor’s home in the period between her arrival in Australia in June 2004 and her living him in December 2004. The Tribunal notes the presumption, in regulation 1.15A(5), that if 2 persons have been living together at the same address for 6 months or longer, that fact is to be to be strong evidence that the relationship is genuine and continuing. However the Tribunal is satisfied that the presumption is rebutted by the evidence of the circumstances of those periods of cohabitation; in particular the sponsor’s unabated mistreatment of the visa applicant.
76.The Tribunal is not satisfied that a genuine spousal household was ever extant in this relationship.
The social aspects of the relationship
77.The Tribunal notes that the parties were married according to the rights of Islam and may have been recognised by the visa applicant’s aunt and other relatives as spouses. The Tribunal also notes however that the visa applicant was prevented by the sponsor from going out socially and that they did not present socially as a couple.
78.The Tribunal is not satisfied that the social aspects of a genuine spousal relationship are made out.”
When considering the question of mutual commitment, the Tribunal cited the decision of the Full Court of the Federal Court in Minister for Immigration Local Government and Ethnic Affairs v Dhillon (Unreported 8 May 1990) (Dhillon) which it relevantly incorporates in its decision as follows:
“80.The Full Court in Minister for Immigration, Local Government and Ethnic Affairs v Dhillon (unreported, 8 May 1990) in which the Federal Court stated:
… people enter marriages with a variety of purposes and motives, hopes and anticipations, so that it is not possible to classify some purposes etc. as according to what may be described as ‘community expectations’. It is not necessarily inconsistent with a genuine marriage relationship that it was entered into by one or both parties with a view to material benefit or advancement, as for example with the hope of becoming eligible to reside in a particular country. The true test, we would suggest the only test, is whether at the time at which the matter has to be decided it can be said that the parties have a mutual commitment to a shared life as husband and wife to the exclusion of others.
81.However the Tribunal also notes that the Court went on to hold that:
The true test, we would suggest the only test, is whether at the time at which the matter has to be decided it can be said that the parties have a mutual commitment to a shared life as husband and wife to the exclusion of others.
82.The Tribunal accepts that parties may enter marriages with a variety of purposes and motives. The Tribunal also notes, however, that the parties must each enter it voluntarily. As Lee J at first instance in Dhillon (unreported, 15 March 1989) held that:
A marriage, according to law in Australia, is not required to have a romantic attachment as an element before it may be regarded as a binding marriage. The nature and obligation of a marriage celebrated under Australian law is a union of a man and woman to the exclusion of all others voluntarily entered into for life.”
Significantly when considering the Applicant's commitment to a shared life with the sponsor the Tribunal relevantly states:
84.… Nevertheless, whilst the Tribunal is not satisfied that the visa applicant’s decision to marry was voluntary but rather made under threats by her aunt, it is satisfied that, having decided she would marry the sponsor, the visa applicant made a commitment to a shared life with him. The Tribunal notes the sponsor’s allegations that the visa applicant was exploiting him for migration purposes and was never genuinely committed to him but also notes the visa applicant’s denials of those allegations and has no reason to disbelieve her evidence in this regard. Accordingly the Tribunal is satisfied that the visa applicant committed to a shared life with the sponsor.”
The Tribunal then proceeds to consider the commitment of the sponsor to a shared life with the Applicant, and notes the sponsor did not give evidence and according to the Tribunal has "not had an opportunity to answer the very serious allegation that the visa Applicant has made against him". The Tribunal goes on to state:
“85.… There being no reason to doubt the visa applicant was a witness of truth, however, the Tribunal is satisfied to the requisite degree that the allegations she has made against the sponsor in statutory declarations dated 9 August and 30 October 2006 and in sworn oral evidence to the Tribunal on 10 August 2006 are a truthful account of her relationship with him.”
Significantly the Tribunal then finds as follows:
“86.In light of that evidence the Tribunal is not satisfied that the sponsor was, at any stage, genuinely committed to a shared spousal life with the visa applicant. From the outset he demonstrated a prevarication in indicating that he wished to withdraw his sponsorship in March 2004 before reinstating his support in May 2004. His treatment of the visa applicant throughout was the antithesis of the companionship and emotional support mentioned in Regulation 1.15A. His behaviour towards her following her arrival in Australia in failing to provide for her, failing to present with her socially as a married couple and confining her to the house and mistreating her reflect a relationship which falls well short of the minimal requirements of Regulation 1.15A. It also tends to strongly suggest that he sponsored her migration to Australia for purely selfish reasons of procuring a domestic servant and a submissive sexual partner rather than a desire to embark on a genuinely shared life with her.
87.Regulation 1.15A(d)(iii) contemplates mutual support and commitment and ‘companionship’ which indicates that the support must flow from both parties. The Tribunal finds that the relationship between the visa applicant and her sponsor was characterised by intimidation and abuse at all times and there was no mutuality of support or companionship at any stage in the relationship.
88.Viewing the totality of evidence in relation to financial, household, social and emotional aspects of the relationship, the Tribunal is not satisfied that the parties were, at any stage, in a spouse relationship as defined by the Regulations. Accordingly the visa applicant was not in a relationship that ceased within the meaning of subclause 100.221(4).
89.The Tribunal notes the agent’s submission that the legislation is circular as the domestic violence was the very reason why a spousal relationship could not emerge in the first place and that it would be contrary to the parliamentary intent to hold that the applicant was not in a spouse relationship in those circumstances. The Tribunal considers, however, that the domestic violence provisions under the regulations to the Migration Act are intended to assist an applicant who is found to have been in a spouse relationship which has ended in circumstances of domestic violence. The provisions are not available to assist an applicant who is found to have never been in a spouse relationship. Whilst apprehended violence orders, civil and criminal proceedings may be available to an individual in a relationship which falls short of a spouse relationship the domestic violence provisions under the regulations to the Migration Act are only available to assist an applicant who has been in a spouse relationship as defined and suffered domestic violence at the hands of their spouse as defined.
90.The Tribunal also notes the visa applicant’s evidence that she considered that she was in a genuine marriage and that her marriage with the sponsor was genuine under Islamic law. The Tribunal considers however, that the fact that a visa applicant subjectively believes that he or she has entered into a genuine spousal relationship where objectively the reality is that their sponsor was never committed to a genuine spouse relationship and entered the relationship for purely selfish reasons will not in itself satisfy the definition of a spousal relationship. The question of whether or not the parties are in a spouse relationship has to be determined by the objective evidence rather than the visa applicant’s subjective belief. That objective evidence is assessed against the indicia set out in Regulation 1.15A and not against the Islamic definition or any other definition of a spousal relationship.
91.Having found that the visa applicant does not satisfy an essential criterion for the grant of the visa (a pre-existing spousal relationship) the Tribunal need not consider the remaining criteria, or make a finding in relation to her claims of domestic violence.”
It is noted the Tribunal therefore affirmed the delegate's decision though on different grounds. The delegate had not been satisfied that the Applicant was a victim of domestic violence whereas the Tribunal was not satisfied that there was a pre-existing spousal relationship and did not then believe it was necessary to make a finding in relation to domestic violence claims.
The Amended Application
Grounds
The Applicant relied upon the following grounds:
“1.The decision of the Tribunal was made without jurisdiction or is affected by an error of jurisdiction because the Tribunal misconstrued subclause 100.211(4)(b) of the Migration Regulations 1994 (Cth) resulting in the Tribunal asking itself the wrong question and the Tribunal’s exercise of power was thereby affected.
PARTICULARS
The Tribunal construed subclause 100.221(4)(b) as obliging the Tribunal to be satisfied that at some unidentified point in time the applicant and her husband were in a married relationship.
2.In the alternative to ground 1, the decision of the Tribunal was made without jurisdiction or is affected by an error of jurisdiction because the Tribunal misconstrued subclause 100.22(4) and/or reg 1.15A:
(a)by taking into account evidence of domestic violence and mistreatment to deny the existence of a married relationship, as defined;
(b)by taking into account evidence of domestic violence to rebut the presumption arising from reg 1.15A(5);
(c)by failing to consider the particular circumstances of the applicant and her husband including cultural and religious circumstances;
(d)by failing to take into account a relevant consideration namely the previous grant of a subclass 309 visa and the necessary anterior satisfaction of the Minister of the existence of a married relationship as defined.”
Ground 1 - Misconstruction of subclause 100.221(4)(b)
Applicant's Submissions
The Applicant relied upon the following written submissions in relation to this ground:
“11.At paragraph 59 of its reasons for decision, the Tribunal said this:
‘The Tribunal notes that the visa applicant has lodged material in support of a claim of domestic violence pursuant to clause 100.221(4)(b) and (c). However, the Tribunal considers that 100.221(4)(b) involves an assessment of whether the visa applicant had been the sponsor’s spouse and would continue to be except that the spousal relationship ceased and the sponsor died or the applicant has been the subject of domestic violence committed by the sponsor. Accordingly, before undertaking an analysis of whether domestic violence is taken to have occurred under Division 1.15 of the Regulations, the Tribunal has considered whether at the time prior to the cessation of the relationship the sponsor and the visa applicant were in a spousal relationship. In this context the Tribunal notes the decisions in Collins v Minister for Immigration [2003] FMCA 571 Guven v Minister for Immigration [2006] FMCA 311, Jayasinghe v Minister for Immigration [2006] FMCA 1036 and Jayasinghe v Minister for Immigration [2006] FMCA 1700.’
12.At paragraph 76, the Tribunal reasoned that ‘it was not satisfied that a genuine spousal relationship was ever extant in this relationship’.
13.At paragraph 93, the Tribunal reasoned that ‘the visa applicant was not in a spousal relationship with the sponsor at the time of the visa application or any time thereafter.’
14.This reasoning discloses a misinterpretation and misapplication of sub-clause 100.221(4)(b).
15.The Tribunal was not required to consider whether at some unidentified point in time ‘a relationship’ between the applicant and her husband had ever existed. The Tribunal was required to consider whether, at the time of its decision, ‘the relationship’ had ceased. This construction not only accords with the plain language of sub-clause 100.221(4)(b) but it is also consistent with the Migration Regulations read as a whole.
16.First, sub-clause 100 has no criteria to be satisfied at the time of application. The Tribunal was only required to consider criteria as at the time of its decision. As indicated above, one such criterion was that the applicant continued to hold a subclass 309 visa, a criterion for the grant of which was that both at the time of application and at the time of decision to grant the subclass 309 visa, the Minister was satisfied that the applicant was in a married relationship (as defined) with the applicant husband.
17.In context therefore, ‘the relationship’ referred to in subclause 100.211(4)(b) is a reference to the relationship which would have been previously found to have existed for the purposes of the previous grant of the subclass 309 visa. The legislative intent is clear. There is nothing to suggest that the legislature intended that, as at the date of decision, the Minister or the Tribunal was required to re-visit findings by the Minister of the existence of a marital relationship both at the time of application and the time of the grant of the subclass 309 visa.
18.Any other construction may also lead to absurdity and does so upon the facts of the present case. The Tribunal in the present case was not reviewing the decision of the Minister to grant a subclass 309 visa. Nevertheless, the conclusion by the Tribunal in this case leads to a clear inconsistency, namely that as at the time of application, the applicant was and was not in a married relationship, with the applicant’s husband. This cannot have been the intention of the legislature.
19.Furthermore, if the Tribunal was required to consider, as at the date of decision, whether a married relationship ever existed for the purposes of reg. 1.15, then it would always be open to the Tribunal, as in the present case, to rely upon evidence of domestic violence to negate the existence of the married relationship. That construction would frustrate the clear intention of the legislature that a visa applicant whose ‘relationship’ has ceased could obtain a permanent spouse visa if she or he has been the victim of domestic violence.”
Further arguments were advanced during the course of the hearing. It was specifically argued that the Tribunal had erred in the manner in which it suggested the Applicant’s subjective belief was not relevant for the purposes of Regulation 1.15A. It was argued that sub-regulation 1.15A(3)(c)(i) and 3(d)(iii) and 3(d)(iv) do contemplate that the subjective belief is relevant. The Tribunal also failed to take into account religious circumstances in reaching its decision contrary to the requirement to have regard to “all of the circumstances of the relationship”.
First Respondent’s Submissions
The First Respondent submitted that “the Applicant’s interpretation of paragraph 100.221(4)(b) requires the Tribunal to presume the pre-existence of the spousal relationship as a consequence of the grant of the provisional visa and does not require the Tribunal to determine if the applicant and sponsor were in a genuine spousal relationship at all.”
It was further submitted as follows:
“25.As the Tribunal found, before considering whether domestic violence is taken to have occurred, the Tribunal must first determine whether the applicant and the sponsor were in a genuine spousal relationship. In order to satisfy subclause 100.221(4)(b), the Tribunal was required to be satisfied that at the time of its decision, the applicant would meet the requirements of subclause 100.221(2), ‘except that the relationship between the applicant and the sponsoring spouse has ceased’. That necessarily required the Tribunal to undertake an assessment of whether there was at some point a spousal relationship which ‘has ceased’. As the Tribunal was not so satisfied, the criterion was not met.
26.At the time the Tribunal considers the application for the visa, it will have different and additional evidence from that which was available to the decision-maker at the time of the grant of the provisional visa, which it will have to assess. It is not required to accept as correct, a previous decision based on different evidence, made at a different time, and in relation to a different class of visa.”
The First Respondent submitted there was no error by the Tribunal in considering whether there was a spousal relationship.
Reference was made to the decision of this court in Collins v Minister for Immigration [2003] FMCA 571 where the court relevantly stated at [42] as follows:
“42.It is not necessary for me to then further consider the matter of domestic violence as that no doubt may be the subject of further consideration by the MRT when the matter is remitted for further consideration. The determination of whether there is a genuine spousal relationship however in my view as a matter of law is properly to be considered by the MRT as a primary issue. So that there is no misunderstanding I did not otherwise accept the submissions by the Applicant but having made an adverse finding in relation to that matter it is still necessary for the MRT to consider the evidence of alleged domestic violence for the purposes of the regulations. My reading of sub-regulation 8 is that the clear inference and basis upon which that regulation is to be applied is that applies to the relationship which at least at one point could be regarded as a genuine spousal relationship. Otherwise the purpose and intent of the regulation and its meaning on a proper reading would make little sense particularly in circumstances where there may be a finding that there has never been a genuine spousal relationship and a tribunal or delegate then be required, in applying the regulations, to consider amongst other things the issue of domestic violence which would only be a saving grace in circumstances where the genuine spousal relationship had already been established.”
It was argued that that passage in the context of subclause 820.211(8)(c) is "akin to that under consideration" and it is necessary for a decision-maker to be satisfied of the existence of a genuine spousal relationship "at least at one point in time" before considering whether the spousal relationship has ceased. It was submitted that, "A fortiori as, subclause 820.211(8)(c) requires only that the relationship 'has ceased'.
In referring to various authorities it was submitted the interaction between "a subclass 820 visa and a subclass 801 visa is relevantly the same as that between a subclass 309 visa and a subclass 100 visa." For present purposes I accept that analysis.
The First Respondent then referred the court to the decision of Gray J in Sevim v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1597 (Sevim) where His Honour relevantly states the following:
“67 It appears from the Tribunal's reasons for decision that it also considered this issue in the context of its determination of the question whether the applicant should have been granted the subclass 820 visa. In so doing, the Tribunal acted outside its powers. For the reasons I have already expressed, the Tribunal had no jurisdiction to review a decision to grant a visa. On no view could an error of fact on the part of the delegate of the Minister who made the decision to grant the subclass 820 visa be regarded as bringing about the result that the decision was a nullity. The question of the validity of the marriage was, however, relevant to the task of the Tribunal in reviewing the decision to refuse to grant the subclass 801 visa. The criterion found in cl 801.221(2)(c) in Pt 801 of Sch 2 to the Migration Act required that the Tribunal consider whether the applicant was the spouse of the nominating spouse, even if only as a step to considering whether the criterion in clause 801.221(6)(b) was met, namely that the relationship between the applicant and the nominating spouse had ceased. The Tribunal therefore again considered the right question in the wrong context and for the wrong purpose.” (emphasis added)
Reference was also made to the decision of Heerey J in Nouv v Minister for Immigration and Multicultural Affairs & Anor [2006] FCA 1474 (Nouv) where the court relevantly states:
“12 The appellant’s argument involved two interrelated points. One of the requirements for the permanent visa is that the applicant is the holder of a provisional visa. Therefore, it was said, although the Tribunal had to consider other criteria as at the time of its decision, it should not have "re-agitated" the issue whether at the time of the grant of the provisional visa the criteria for the grant of that visa were or were not satisfied. In effect, the Tribunal should have proceeded on the basis that when the provisional visa was granted the appellant was a "spouse" of the sponsoring spouse, that is to say they were in a "married relationship" as defined in reg 1.15A. The Tribunal failed to identify the point in time at which the married relationship had to exist.
13 It seemed implicit in counsel’s argument that the grant of the provisional visa created some kind of presumption and that the Tribunal could only refuse the permanent visa if it was satisfied that what was a genuine married relationship had ceased by the time of the death of the sponsoring spouse.
14 As Phipps FM pointed out in the analogous case of Ho v Minister for Immigration and Multicultural Affairs [2006] FMCA 1285 at [28], the Tribunal may have, and often will have, different and additional evidence bearing on the parties’ relationship at the time of the grant of the permanent visa. It must make its own assessment of that evidence. There is no basis in the regulations for saying that it must accept as correct a previous decision based on different evidence.”
It was noted recently a Full Court of the Federal Court in Minister for Immigration and Citizenship v Zaouk [2007] FCAFC 47 considered the construction of subclause of 820.211(8)(c) and relevantly stated:
“15.Though the applicant is not referred to as such as “a spouse” in subpara (c), it is in our view tolerably clear that the relationship it contemplates as having existed but then having ceased is a reg 1.15A married relationship. That relationship clearly enough provides an essential foundation for the criteria for this subclass of visa. Ordinarily that relationship is required to exist at the time of the application for this visa: subcll (2), (3), (4), (5), (6). In the case of the death of the sponsoring spouse, the Minister is required to be satisfied that it would have continued to exist, but for that death: subcl (7). Then there is the exceptional case where that relationship has ceased but where nonetheless an application for this visa can be made. This is subclause (8). That exception is tied to the domestic violence requirement.
16.While the respondent has urged upon us the view that the incidence of domestic violence of itself provides the policy justification for the exception such that the “relationship” requirement should be construed beneficially to an applicant, we do not consider that the subpara can be so construed. Its context requires otherwise. It is evident from the provisions of Subclass 820 that the underlying policy (evident in the title of the subclass itself) is to tie the award of this visa to persons who are, or, exceptionally, who have been, in spousal relationships having the qualities identified in reg 1.15.”
Reasoning
This Court’s decision in the matter of Collins referred to earlier in this judgment has been effectively upheld by the Full Court in the decision of Zaouk noting that in that case the Full Court dealt with an appeal from the Federal Magistrate who had declined to follow this Court’s decision in Collins.
Accordingly applying the relevant law the First Respondent’s submissions are correct that there has been no error by the Tribunal in considering whether there was a spousal relationship.
Although it may superficially appear to be unfair to the Applicant for the Tribunal to use against the Applicant the evidence of domestic violence, it does not follow that the use of that material by the Tribunal constitutes an error. Where the Tribunal is required to consider whether in fact there is a spousal relationship, it is relevant for the Tribunal to take into account evidence of the domestic violence which the Tribunal was entitled to conclude was the “antithesis of the companionship and emotional support mentioned in Regulation 1.15A”. The conclusion reached by the Tribunal set out earlier in this judgment which appears in paragraph 86 of the Tribunal’s decision is a conclusion which in my view was reasonably open to the Tribunal.
I am satisfied that the Tribunal has correctly recited the relevant authority of the Full Court of the Federal Court in Dhillon.
In my view Ground 1 should fail as I am not satisfied that sub-clause 100.221(4)(b) does not require the Tribunal to be satisfied that the Applicant and her husband were in a married relationship.
I am otherwise not satisfied the Tribunal has misconstrued sub-clause 100.22(4) and/or Regulation 1.15A as I am satisfied as indicated earlier that it was open to the Tribunal to take into account the evidence of domestic violence in the manner referred to earlier.
I have deliberately set out in this judgment in some detail the chronology of events including extracts from correspondence and in some detail the Tribunal’s reasoning. On my analysis of the material I am satisfied based upon that chronology of events and the reasoning of the Tribunal that it has not committed any jurisdictional error and I am otherwise satisfied that it has not misunderstood or misconstrued its task according to law.
Whilst I accept that the Tribunal is entitled to consider the subjective view of the Applicant, there was clearly ample evidence applying the relevant law correctly to entitle the Tribunal to reach the conclusion reached free of error. The subjective views of the Applicant if taken into account in the manner submitted as appropriate by the Applicant would not in the circumstances have altered the outcome even if the Court was satisfied that the Tribunal erred in the manner in which it dealt with the Applicant’s subjective views. In any event the Tribunal acknowledged the subjective beliefs of the Applicant and by acknowledging those views had effectively considered them by ultimately concluding that they did not outweigh the objective evidence which the Tribunal relied upon in my view in a manner free of error. The difficulty for the Applicant before the Tribunal was the very strong evidence that the sponsor was not committed to the relationship and that accordingly there was not a genuine relationship. The subjective views of the Applicant cannot overcome that objective evidence.
In my view the decisions of the Federal Court in Sevim and Nouv apply to the present case. I accept the First Respondent’s submissions arising out of those authorities which in my view correctly state the relevant principles of law which should be followed in this case.
Conclusion
It follows for the reasons given that the Application should be dismissed with costs. The formal orders will include an order that leave be granted to the Applicant to file and serve the Amended Application dated 7 June 2007.
I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 3 August 2007
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