Sharma v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 811
Federal Circuit and Family Court of Australia
(DIVISION 2)
Sharma v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 811
File number: MLG 118 of 2018 Judgment of: JUDGE LADHAMS Date of judgment: 7 October 2022 Catchwords: MIGRATION – application for judicial review of decision of Administrative Appeals Tribunal affirming decision not to grant Partner (Residence) (Class BS) visa – where Tribunal found applicant did not meet evidentiary requirements to raise non-judicially determined claim of family violence – whether Tribunal failed to consider applicant’s evidence – whether Tribunal decision was affected by bias – no jurisdictional error – application dismissed Legislation: Migration Act 1958 (Cth) ss 476, 477
Migration Regulations 1994 (Cth) regs 1.23, 1.24, 1.25, cl 801.221
Legislative Instrument, IMMI 12/116 (Cth)
Cases cited: Abebe v The Commonwealthof Australia (1999) 197 CLR 510; [1999] HCA 14
CNY17 v Minister for Immigration & Border Protection (2019) CLR 76; [2019] HCA 50
Craig v State of South Australia (1995) 184 CLR 163; [1995] HCA 58
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 397 ALR 1; [2022] FCAFC 3
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3
Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429; [2009] HCA 39
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 at [82]
MZAPC v Minister for Immigration and Border Protection (2021) 390 ALR 590; [2021] HCA 17
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155; [1985] FCA 46
Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425; [2001] HCA 28
Division: Division 2 General Federal Law Number of paragraphs: 48 Date of hearing: 20 September 2022 Place: Perth Applicant: The applicant appeared in person Counsel for the First Respondent: Mr E Taylor Second Respondent: Submitting appearance save as to costs Solicitor for the Respondents: Mills Oakley Lawyers ORDERS
MLG 118 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: VISHAL SHARMA
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE LADHAMS
DATE OF ORDER:
7 October 2022
THE COURT ORDERS THAT:
1.The application is 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 LADHAMS:
INTRODUCTION
Before the Court is an application filed under s 476 of the Migration Act 1958 (Cth) (Migration Act). The applicant seeks judicial review of a decision made by the Administrative Appeals Tribunal (Tribunal) on 11 January 2018 to affirm an earlier decision of a delegate of the Minister not to grant the applicant a Partner (Residence) (Class BS) (Subclass 801) visa (partner visa).
The applicant has not established that the Tribunal decision is affected by jurisdictional error and therefore the application to this Court is dismissed. My reasons for this conclusion are explained below.
BACKGROUND
The applicant applied for a partner visa on 29 January 2013 on the basis of his marriage to Ms Christostomou (sponsor). The application was a combined application for a Partner (Temporary) (Class UK) (Subclass 820) visa, which is a provisional partner visa, and the permanent partner visa the subject of this application. The applicant was granted a provisional partner visa on 20 March 2013.
On 3 March 2016 the Minister’s Department sent to the applicant a request for further information in relation to his partner visa.
On 11 April 2016 the applicant advised the Department that his relationship with the sponsor had ceased.
On 2 May 2016 the Department sent to the applicant an invitation to comment on the information that his relationship with the sponsor had ended. The Department provided with the invitation information and extracts of legislation regarding the circumstances in which an applicant may continue to be considered for the grant of a partner visa when the relationship with their sponsor has ceased. On 29 May 2016 the applicant provided a letter to the Department which, amongst other things, suggested that he had been a victim of family violence committed by the sponsor.
On 2 September 2016 the Department sent to the applicant a letter requesting more information in support of his claim of family violence. In this letter the Department advised the applicant that the documentary evidence submitted to date did not meet the requirements under the family violence provisions in the Migration Regulations 1994 (Cth) (Regulations) and also provided an information sheet titled ‘Family Violence Evidentiary Requirements’.
On 5 October 2016 the Department sent to the applicant a further request for information in similar terms to the communication sent on 2 September 2016.
On 21 November 2016 a delegate of the Minister made a decision not to grant the applicant a partner visa. The delegate accepted that the applicant had been in a genuine relationship with the sponsor but that the relationship had ceased. The delegate considered the family violence provisions and was not satisfied that the applicant had provided the minimum evidentiary requirements to be considered to have made a non-judicially determined claim of family violence.
On 30 November 2016 the applicant applied to the Tribunal for review of the delegate’s decision.
On 19 December 2017 the Tribunal sent to the applicant an invitation to attend a hearing on 11 January 2018 and invited him to submit any further documents seven days before the hearing. On 8 January 2018 the applicant provided various documents to the Tribunal including a sponsorship form by the applicant’s new wife and statements and evidentiary documents about the applicant’s new relationship. The applicant then attended the hearing on 11 January 2018 and gave evidence and presented arguments.
Later on 11 January 2018 the Tribunal affirmed the delegate’s decision.
TRIBUNAL DECISION
The Tribunal noted that the applicant claimed his relationship with the sponsor had ceased and that he had been the victim of family violence perpetrated by the sponsor.
The Tribunal found that there was no claim or evidence of judicially determined family violence.
The Tribunal noted that to raise a non-judicially determined claim of family violence, the applicant needed to meet the evidentiary requirements set out in reg 1.24 of the Regulations. This requires a statutory declaration under reg 1.25 and the number and types of evidence specified by the Minister in legislative instrument IMMI 12/116. The Tribunal found that the applicant had not provided the Tribunal or the Department with a statutory declaration in relation to his claim of having suffered family violence as required under the Regulations. Accordingly, the Tribunal found that the applicant had not provided evidence in the nature and form required to make a valid claim of non-judicially determined family violence.
The Tribunal also noted that the documents provided by the applicant’s healthcare professionals did not meet the requirements of any of the types of evidence identified in Schedule 1 to IMMI 12/116.
Based on the applicant’s own evidence, the Tribunal found that the applicant and the sponsor were not in a relationship that was genuine and continuing at the time of its decision, and therefore could not satisfy the requirements of the definitions of a spouse or de facto partner under the Migration Act. The Tribunal found that the applicant could not satisfy the criteria in cl 801.221(2)(c) and did not meet any of the alternative criteria.
PROCEEDINGS BEFORE THE COURT
The applicant filed his application for judicial review on 17 January 2018, which is within 35 days of the date of the Tribunal decision, as required by s 477(1) of the Migration Act.
The application contains the following single ground of review with five particulars (reproduced without alteration):
That the Member in the Administrative Appeals Tribunal (“the AAT”) erred in law and therefore fell into jurisdictional error by failing to properly consider the evidence before them that indicated that the Applicant satisfies the requirements of cl.801.221(6) of the Migration Regulations (1994).
Particulars
i.By summarily dismissing and discounting the evidence of the Applicant generally;
ii. By failing to consider the evidence in totality and cumulatively;
iii.By failing to properly and/or adequately investigate and assess the claims of the Applicant as to his verbal and documentary evidence of family violence upon him by his sponsor partner.
iv. By displaying bias towards the Applicant;
v.By failing to take into account relevant evidence and/or took into account irrelevant evidence.
A Registrar of the Court made an Order on 17 October 2018 which, amongst other things, required the applicant to file and serve 28 days before the hearing any amended application, any supplementary court book and written submissions. The applicant did not file any documents in accordance with this Order.
The applicant did, however, electronically lodge some documents shortly before the hearing. These documents are addressed further below.
Consideration
Need to establish jurisdictional error
The role of a court in considering an application for judicial review was explained by the Full Court of the Federal Court in Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 397 ALR 1; [2022] FCAFC 3 (Djokovic), where the Full Court said at [17]:
… an application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the Executive branch of government… The Court does not consider the merits or wisdom of the decision; nor does it remake the decision. The task of the Court is to rule upon the lawfulness or legality of the decision by reference to the complaints made about it.
In order to be entitled to relief by this Court, the applicant must establish that the Tribunal decision is affected by jurisdictional error. The Tribunal will have made a jurisdictional error if it ‘exceeded the limits of the decision-making authority conferred by the statute in making the decision’: MZAPC v Minister for Immigration and Border Protection (2021) 390 ALR 590; [2021] HCA 17 at [29].
The High Court identified a number of examples of jurisdictional error in Craig v State of South Australia (1995) 184 CLR 163; [1995] HCA 58 (Craig). In that case the High Court said at [14] that if the decision-maker:
…falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.
The examples of jurisdictional error set out in Craig are not exhaustive: see Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 at [82]; Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 (SZMTA) at [81].
To amount to a jurisdictional error, any error by the Tribunal must be material, in the sense that the error could realistically have deprived the applicant of the possibility of a successful outcome: SZMTA at [45].
Relevant legislation
The applicant’s ground draws attention to cl 801.221(6) in Schedule 2 to the Regulations. That clause relevantly contains a criterion by which the applicant may still be eligible for the partner visa even though his relationship with the sponsor has ended, if he has been the victim of family violence committed by the sponsor. The subclause relevantly provides:
An applicant meets the requirements of this subclause if:
(a) the applicant is the holder of a Subclass 820 visa; 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) either or both of the following circumstances applies:
(i) either or both of the following:
(A) the applicant;
(B)a dependent child of the sponsoring partner or of the applicant or of both of them;
has suffered family violence committed by the sponsoring partner…
There are a number of provisions in the Regulations which deal with family violence. Relevant for the present purposes are the provisions that address when a non-judicially determined claim of violence is taken to have been raised and the evidentiary requirements.
Regulation 1.23(9) sets out when an application is taken to include a non-judicially determined claim of family violence. That paragraph provides:
For these Regulations, an application for a visa is taken to include a non‑judicially determined claim of family violence if:
(a)the applicant seeks to satisfy a prescribed criterion that the applicant, or another person mentioned in the criterion, has suffered family violence; and
(b) the alleged victim is:
(i) a spouse or de facto partner of the alleged perpetrator; or
(ii) a dependent child of:
(A) the alleged perpetrator; or
(B) the spouse or de facto partner of the alleged perpetrator; or
(C)both the alleged perpetrator and his or her spouse or de facto partner; or
(iii)a member of the family unit of a spouse or de facto partner of the alleged perpetrator (being a member of the family unit who has made a combined application for a visa with the spouse or de facto partner); and
(c)the alleged victim or another person on the alleged victim’s behalf has presented evidence in accordance with regulation 1.24 that:
(i) the alleged victim has suffered relevant family violence; and
(ii) the alleged perpetrator committed that relevant family violence.
Regulations 1.24 and 1.25 set out the following evidentiary requirements:
1.24 Evidence
The evidence mentioned in paragraph 1.23(9)(c) is:
(a)a statutory declaration under regulation 1.25 (which deals with statutory declarations by or on behalf of alleged victims); and
(b)the type and number of items of evidence specified by the Minister by instrument in writing for this paragraph.
1.25 Statutory declaration by alleged victim etc
(1)A statutory declaration under this regulation must be made by the spouse or de facto partner of the alleged perpetrator.
(2)A statutory declaration under this regulation that is made by a person mentioned in subregulation 1.25(1) who alleges that he or she is the victim of relevant family violence (within the meaning of regulation 1.21) must:
(a) set out the allegation; and
(b)name the person alleged to have committed the relevant family violence; and
(c)if the conduct of the person alleged to have committed the relevant family violence was not towards the alleged victim:
(i)name the person whom the conduct of the alleged perpetrator was towards; and
(ii)identify the relationship between the maker of the statutory declaration and the person whom the conduct was towards.
(3)A statutory declaration under this regulation that is made by a person mentioned in subregulation 1.25(1) who alleges that another person is the victim of relevant family violence (within the meaning of regulation 1.21) must:
(a) name that other person; and
(b) set out the allegation; and
(c)identify the relationship of the maker of the statutory declaration to that other person; and
(d)name the person alleged to have committed the relevant family violence; and
(e)if the conduct of the person alleged to have committed the relevant family violence was not towards the alleged victim:
(i)name the person whom the conduct of the alleged perpetrator was towards; and
(ii)identify the relationship between the alleged victim and the person whom the conduct was towards; and
(iii)identify the relationship between the maker of the statutory declaration and the person whom the conduct was towards; and
(f)set out the evidence on which the allegation is based.
Ground in application
It is convenient to deal with particulars (i), (ii), (iii) and (v) together. These particulars all challenge the Tribunal’s approach to the evidence in relation to the applicant’s claim to have suffered family violence committed by the sponsor.
The difficulty for the applicant is that in circumstances where the Tribunal found that he did not meet the evidentiary requirements to raise a non-judicially determined claim of family violence, and where the Tribunal found that there was no claim or evidence before it of judicially determined family violence, there was no requirement for the Tribunal to consider whether he had in fact suffered family violence. Put simply, there was in effect no claim of family violence before the Tribunal. The requirements in reg 1.23(9) are cumulative and the failure to provide evidence required by reg 1.23(9)(c) means that the application was not taken to include a non-judicially determined claim of family violence.
The Tribunal did not summarily dismiss the applicant’s evidence as he claims. Rather, the Tribunal considered the documents provided by the applicant and found that the applicant did not provide any statutory declaration as required by reg 1.24. There is no evidence before the Court to suggest that the applicant ever provided a statutory declaration to the Tribunal or to the Department.
Having found that the applicant had not provided a statutory declaration, the Tribunal was not required to further consider any assertion of family violence by the applicant or any evidence in relation to family violence. It is, however, clear that the Tribunal was aware of and reviewed all the evidence before it in relation to the applicant’s claim of family violence. This can be seen from its observations that the medical evidence provided by the applicant did not meet the requirements of the types of evidence identified in IMMI 12/116 which is relevant to its assessment of whether the evidentiary requirement in reg 1.24(b) is met. There is no basis to the applicant’s assertion that the Tribunal erred by failing to consider his evidence in totality and cumulatively.
The onus was on the applicant to provide sufficient evidence to the Tribunal to meet the requirements of reg 1.24. The applicant was on notice of these requirements from the delegate’s decision, a copy of which he provided to the Tribunal with his application. There was no onus on the Tribunal to make the applicant’s case for him: see, for example, Abebe v The Commonwealthof Australia (1999) 197 CLR 510; [1999] HCA 14 at [187]; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155; [1985] FCA 46 at [33]. Nor is this a matter where the Tribunal has failed to undertake an obvious inquiry about a critical fact, the existence of which was easily ascertained: Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429; [2009] HCA 39 at [25]. There was no obvious inquiry to make as there was no non-judicially determined claim of family violence before the Tribunal.
The applicant has not identified any of the matters taken into account by the Tribunal that he says are irrelevant, and the Court has not identified any such factors. The applicant also has not identified any relevant matters that the Tribunal failed to take into account, and again, the Court has not identified any. The applicant has not established his assertion that the Tribunal failed to take into account relevant considerations or took into account irrelevant considerations.
The applicant has also asserted by particular (iv) that the Tribunal ‘displayed bias’ toward him. The applicant has provided no detail to support this assertion. An assertion of bias is a serious allegation that must be distinctly made and clearly proved: Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 (Jia Legeng) at [69]. The applicant has not identified any evidence before the Court to show that the Tribunal had a state of mind which was ‘so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented’: Jia Legeng at [72]. There is also no evidence before the Court which would suggest that a fair-minded lay person might reasonably apprehend that the Tribunal member might not have brought an impartial mind to the review: CNY17 v Minister for Immigration & Border Protection (2019) CLR 76; [2019] HCA 50 at [17], [56] and [132]; Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425; [2001] HCA 28 at [27]-[28].
The ground raised in the applicant’s written application does not establish jurisdictional error.
Issues raised by the applicant at the hearing
The applicant was invited to make oral submissions to the Court addressing what he believes the Tribunal did wrong. The applicant gave various information about the relationship with his sponsor and the breakdown of that relationship, and submitted that the Tribunal looked only at the sponsor’s side and not the applicant’s side. In relation to his claim of family violence, the applicant said that he had suffered family violence but it had not been reported, and in his reply submissions he clarified that there were a couple of times when he initially called the police and then cancelled the call. He said he had no further evidence to provide the Tribunal in relation to family violence. The applicant also referred to his current circumstances, which have changed since he applied for a partner visa, and noted that he is now the sole provider for his current wife and two children. He asked the Court to exercise its compassion in this matter.
The matters raised by the applicant in relation to his relationship with the sponsor invite the Court to engage in merits review of the Tribunal decision. As I explained to the applicant at the hearing, the Court does not have jurisdiction to review the merits of the Tribunal decision and consider for itself whether the applicant meets the criteria for a partner visa: see, for example, Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at [31]; Djokovic at [17].
Nor does the Court have any power to consider the applicant’s case on compassionate grounds. The applicant may wish to seek advice from a lawyer or migration agent about whether there are any other avenues open to him to seek a visa to remain in Australia. While the Court is not unsympathetic to the applicant, all the Court is able to do in the present application is review the Tribunal decision for the purpose of considering whether that decision is affected by jurisdictional error. The Court has done that. The applicant’s current circumstances are not relevant to the Court’s assessment of whether the Tribunal decision is affected by jurisdictional error.
The applicant’s submission that the Tribunal looked only at the sponsor’s side and not the applicant’s side is not made out on the evidence before the Court. The Tribunal accepted the applicant’s own evidence that the relationship with the sponsor had ended. The Tribunal’s finding that a claim of family violence had not been raised was based on the lack of requisite evidence provided by the applicant, rather than any evidence from the sponsor. It is not clear that the sponsor gave any evidence at all to the Department or the Tribunal following the cessation of the relationship. In any event, it is clear that none of the dispositive findings made by the Tribunal were based on evidence provided by the sponsor. There is therefore no foundation to the submission that the Tribunal looked only at the sponsor’s side.
None of the matters raised by the applicant in his oral submissions establish jurisdictional error in the Tribunal decision.
Documents provided by the applicant
As mentioned above, the applicant electronically lodged some documents shortly before the hearing. Unfortunately, these documents were not accepted for filing or brought to the Court’s attention until after the hearing. The documents comprise:
(a)a letter from a doctor regarding the applicant’s daughter’s need for medical treatment;
(b)a letter confirming an upcoming medical appointment for the applicant’s daughter;
(c)a letter regarding an upcoming appointment that the applicant has with a specialist regarding a medical condition he has; and
(d)a letter to the Court from the applicant outlining his and his family’s current circumstances asking that the decision be reconsidered so that the applicant’s family has ‘more time’ and is not torn apart.
An email was sent to the parties indicating that, subject to any views to the contrary, I proposed to allow the documents to be accepted for filing, treat them as submissions, and address them in my judgment, without the need for a further hearing. Neither party objected to this proposed course.
None of the documents were before the Tribunal at the time the Tribunal made its decision, and they could not have been taken into account by the Tribunal. The Tribunal was required to consider the application before it, which related to an application for a partner visa based on the applicant’s relationship with the sponsor. The Tribunal did not have any power to consider the applicant’s relationship with his current wife, or to grant a visa on compassionate grounds. As indicated above, the Court likewise has no power to grant a visa on compassionate grounds and can only grant relief to the applicant if the Tribunal decision is affected by jurisdictional error. None of the documents assert any jurisdictional error in the Tribunal decision.
It follows that the documents provided by the applicant are not capable of establishing jurisdictional error.
Conclusion
I have found that there is no jurisdictional error in the Tribunal decision. It follows that the application to this Court must be dismissed.
I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 7 October 2022
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