Sharma v Minister for Immigration

[2016] FCCA 1011

FEDERAL CIRCUIT COURT OF AUSTRALIA

SHARMA v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1011

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Partner Migration (Class BC) visa – whether the Tribunal should have determined the existence of domestic violence – whether the Tribunal properly decided whether a relevant spousal relationship existed – whether the applicant had a genuine spousal relationship with the sponsor – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5F, 476

Migration Regulations 1994, reg.1.15

Applicant: MAYAND KUMAR SHARMA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3481 of 2014

Judgment of: Judge Street

Hearing date: 29 April 2016

Date of Last Submission: 29 April 2016

Delivered at: Sydney

Delivered on: 29 April 2016

REPRESENTATION

The applicant appeared in person

Counsel for the First Respondent: Mr M P Cleary

Solicitors for the First Respondent: Australian Government Solicitors

ORDERS

1. The name of the second respondent is amended to the Administrative Appeals Tribunal and the filing of any further document in this regard is dispensed with.

2. The application is dismissed.

3. The applicant pay the costs of the first respondent fixed in the amount of $6825.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3481 of 2014

MAYAND KUMAR SHARMA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application in the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) for a constitutional writ in respect of a decision of the Tribunal made on 1 December 2014 affirming a decision of the delegate not to grant the applicant a Partner Migration (Class BC) visa. The applicant is a citizen of India who lodged an application for a (UF) partner provisional and (BC) partner migrant visa with the department on 6 May 2011. The applicant was granted a (Subclass 309) visa on 5 October 2011 and arrived in Australia on 21 October 2011.

2. The criteria to be satisfied at the time of the decision for the grant of the applicant’s visa was identified in reg.100.22 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 at 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.

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

   (a)  the applicant is the holder of a Subclass 309 (Spouse (Provisional)) or a Subclass 309 (Partner (Provisional))visa which the Minister has decided, under section 345, 351, 417 or 501J of the Act, to grant to the applicant; 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 Minister made the decision mentioned in paragraph (a).

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

   (a)  first entered Australia as the holder of a Subclass 309 (Spouse (Provisional))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 the visa:

   (A)  was granted before November 11999; 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)  would meet the requirements of subclause (2) or (2A) except that, after the applicant first entered Australia as the holder of the visa mentioned in paragraph (a), the sponsoring partner has died; and

   (c)  satisfies the Minister that the applicant would have continued to be the spouse or de facto partner of the sponsoring partner if the sponsoring partner had not died.

   (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 andeither;

   (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;

   (ii)  the applicant:

   (A)  has custody or joint custody of, or access to; or

   (B) has a residence order or contact order made under the Family Law Act 1975 relating to;

   at least 1 child in respect of whom the  sponsoring partner:

   (C)  has been granted joint custody or access by a court; or

   (D) has a residence order or contact order made under the Family Law Act 1975 ; or

   (E) has an obligation under a child maintenance order made under the Family Law Act 1975 , or any other formal maintenance obligation.

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

   (a)  if the applicant held a Subclass 309 (Partner (Provisional)) visa that ceased on notification of a decision of the Minister to refuse a Subclass 100 visa; and

   (b)  if the Tribunal:

   (i)  has remitted that decision for reconsideration and, as a result, the Minister decides that the applicant satisfies the criteria for the grant of a Subclass 100 visa apart from the criterion that the applicant hold a Subclass 309 visa; or

   (ii)  has determined that the applicant satisfies the criteria for the grant of a Subclass 100 visa apart from the criterion that the applicant hold a Subclass 309 visa.

   as the definition that identifies the criteria that must be satisfied in order to be a spouse for another person in s.5F 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.

   Pursuant to the requirements identified under s.F(3), the regulations relevantly provide

   (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).

3. On 19 February 2015 a Judge of this Court fixed the matter for hearing and provided the applicant an opportunity to file an amended application, affidavit evidence and submissions.  No such documents were filed.

4. The applicant identifies the following grounds;

   1. The Migration Review Tribunal errand when refusing the application for a Partner (Migrant) (Class BC) visa

   Particulars

   a. The decision of the second Respondent was infected by jurisdictional error in requiring the applicant to evidence a subsisting spouse relationship at a time proximate to the making of a judicial order capable of satisfying the requirements of cl 100.221(4)(b),(c)(i).

   b. The decision of the second Respondent to the effect that the applicant and sponsor were not in a genuine, ongoing and mutually exclusive relationship at the time of the judicial order was not relevant. The fact having already been established on or about 5 October 2011 by the grant of a visa subclass 309, which established the conditions precedent as contemplated in cl 100.221(2A) to a finding in favour of the applicant by reason of the satisfaction of requirements of criterion 100.221 (4)(b) and (c) (i) of the Migration Regulations.

5. At the commencement of hearing the Court explained to the applicant that the hearing was to determine whether or not the Tribunal’s decision was affected by a relevant legal error.  The Court explained that the legal error had to be either an excess of statutory power by the Tribunal or a denial of procedural fairness to the applicant.

6. The Court explained it would have identified the evidence, and then hear from the applicant, would then hear from counsel for the first respondent and then hear from the applicant in reply.  The applicant confirmed that he understood the nature of the hearing as explained by the court.

7. Ground 1(a) of the application seeks to cavil with the Tribunal’s application of the criteria identified under cl.100.22. It is clear from the Tribunal’s decision that the Tribunal properly understood the regulatory requirements in order to determine whether or not each of the criteria under s.5F and reg.1.15A were made out.

8. The Tribunal accepted that the applicant was married in respect of the criteria under s.5F(2)(a). The Tribunal was, however, bound to determine whether the applicant satisfied the other requirements of s.5F. The Tribunal went on to make adverse findings in relation to the alleged spousal relationship. Insofar as ground 1 seeks to advance that the Tribunal should have determined whether or not there was domestic violence, as alleged by the applicant, the Tribunal was correct to determine first whether there was the relevant spousal relationship.

9. It was not necessary for the Tribunal to consider the family violence alleged by the applicant said to have been committed on him by his wife because of the findings by the Tribunal that the Tribunal was not satisfied that the sponsor was ever committed to a relationship with the applicant, or that her relationship with the applicant was genuine. The Tribunal found that it was not satisfied on the evidence before it that the sponsor had a mutual commitment to a shared life as husband and wife to the exclusion of all others, or that the sponsor’s relationship with the applicant was genuine or continuing as required by s.5F(2)(b) and (c). The Tribunal found that it was not satisfied that the applicant was the sponsor’s spouse within the meaning of s.5F.

10. In those circumstances the Tribunal was correct not to consider whether or not there was any domestic violence as alleged by the applicant.  Nothing in ground 1(a) of the application identifies any arguable jurisdictional error.  In relation to ground 1(b) the finding by the Tribunal that the applicant and sponsor were not in a genuine relationship was clearly open on the material before the Tribunal and was a finding of fact. 

11. The proposition that the applicant’s (subclass 309) visa in some ways satisfied the criteria of reg.100.22 is misconceived.  The holding of the (subclass 309) visa was one of the criteria that the applicant had to satisfy, but it was not the sole criterion.  The applicant had to meet the other criteria, in respect of which the Tribunal made adverse findings.  Ground 1(b) fails to identify any jurisdictional error. 

12. I accept the first respondent’s submission that the Tribunal was correct in holding that it was not necessary for it to determine the issue of family violence where it was not satisfied that the partnership relationship existed.   I also accept the first respondent’s submission that the Tribunal was not legally bound by the granting of the (subclass 309) partner provisional visa to conclude that the applicant was ever the spouse or de facto partner of the sponsor.

13. From the bar table, the applicant sought to maintain that the relationship was genuine.  The applicant’s submissions in this regard invited an impermissible merits review by this court.  This court does not have jurisdiction to review the merits, or make fresh findings of fact.  Nothing said by the applicant from the bar table identified any jurisdictional error.  The application is dismissed.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  10 May 2016