Sharma v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2020] FCCA 3372
•1 December 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
Sharma v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 3372
File number(s): PEG 459 of 2019 Judgment of: JUDGE VASTA Date of judgment: 1 December 2020 Catchwords: MIGRATION – partner visa - Whether the Tribunal must find that there was a genuine spousal relationship in existence before considering the “exception” of family violence – where Federal Court authority deems this the proper course – where recent Federal Court judgement considered otherwise – principle of precedent – writs issued but order stayed pending appeal Legislation: Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth) cl 100.221 of Sch 2
Cases cited: El Jejieh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1103
Kaur v Minister for Immigration and Border Protection
Minister for Immigration and Border Protection v Truong [2016] FCAFC 54
SZGME v Minister for Immigration and Citizenship [2008] FCAFC 91
Number of paragraphs: 25 Date of last submission/s: 1 December 2020 Date of hearing: 1 December 2020 Place: Brisbane Solicitor for the Applicant:
William Gerard Legal Pty Ltd Counsel for the First Respondent:
S. Oliver Solicitor for the First Respondent: Sparke Helmore ORDERS
PEG 459 of 2019 IN THE MATTER OF SHARMA
BETWEEN: BHAVNA SHARMA
ApplicantAND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE VASTA
DATE OF ORDER:
1 DECEMBER 2020
THE COURT ORDERS:
1.A Writ of Certiorari issue directed to the Second Respondent quashing its decision dated 1 November 2019.
2.The First Respondent pay the Applicant’s costs, fixed in the sum of $7,467.00.
3.A Writ of Mandamus issue directed to the Second Respondent requiring it to determine the Applicant’s application dated 12 March 2018 according to law.
4.Orders 1-3 herein are stayed pending an appeal in these proceeding by the First Respondent.
IT IS NOTED:
A.That in the event that the First Respondent does not file an appeal in these proceedings, Orders 1-3 herein shall be enforced.
REASONS FOR JUDGMENT
(EX TEMPORE)JUDGE VASTA
On 1 November 2019, the AAT affirmed a decision of the delegate not to grant the Applicant, Ms Bhavna Sharma, a partner visa. On 25 November 2019, the Applicant asked this Court to review that decision.
The background to this matter is that the Applicant is a citizen of India. In January 2016, she was introduced to the Sponsor who was in India at the time. This was an introduction by both her family and his family. That introduction was to facilitate an arranged marriage. It would seem some 10 days or so afterwards, the Applicant and the Sponsor became engaged. And then in March 2016, they married.
The parties lived together with the family of the Sponsor in India for, it would seem, a few months. It was after those few months that the Sponsor returned the Applicant to her parents and told the Sponsor that he was going back to Australia. The Sponsor has either a permanent visa or Australian citizenship, I'm not too sure which. In any event, he did eventually go back to Australia.
The Applicant applied for a partner visa and that 309 partner visa was granted to her around June 2016. The Applicant then came to Australia and lived with her husband.
They lived in a share house with another two people. This lasted from about February 2017 till June or July of 2017. At that time, the Sponsor left and sent a message about a week later saying he wanted separation. The Sponsor and the Applicant have not lived together or had any form of true relationship since that time.
The Tribunal noted that the Applicant's application was that her relationship with the Sponsor had ceased, but that she met an exception under cl.100.221 of Schedule 2 of the Migration Regulations 1994 (Cth) (“the Regulations”), namely, that she had suffered family violence committed by the sponsor.
Clause 100.221 reads as follows:
(1)The applicant will meet the requirements of either subclause (2), (2A), (3), (4), or (4A).
(2)The applicant meets the requirements of this subclause if:
(a)the applicant is the holder of a Subclass 309 (Partner (Provisional)) visa; 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 two years have passed since the application was made…
(4) That the applicant meets the requirements of this subclause if:
(a)the applicant first entered Australia as the holder of a Subclass 309 (Partner (Provisional)) visa and continue to be the holder of that 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)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 of both of the following:
(A) the applicant;
(B) the member of the family unit of the sponsoring partner or of both of them;
Has suffered family violence committed by the sponsoring partner…
The Applicant did arrive in Australia as the holder of a Subclass 309 (Partner (Provisional)) visa. When one looks at Subclass 309, cl.309.211 has that “the applicant must meet the requirements of subclause (2), relevantly, and that is that she meets the requirements of this subclause because the Applicant is her spouse or de facto partner of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen”.
What the Tribunal did in this case was to look at whether there was a genuine spousal relationship. The Tribunal did this by looking at the definition of spouse and by looking at the requirements under reg.1.15A.
The Tribunal went through the financial aspects of the relationship, the nature of the household, the social aspects of the relationship, and the nature of the parties' commitment to each other. Having gone through those four aspects of the relationship, the Tribunal was not satisfied that the Applicant and the sponsor were ever in a genuine spousal relationship.
The Tribunal interpreted cl.100.221(4)(b), as meaning that it had to be established the Applicant was the spouse or de facto partner of the sponsoring partner before it is that the exception can apply. As the Tribunal was not satisfied that the Applicant did meet the requirements of subclause (2) or (2A), then the exceptions could not be considered. For that reason, the Tribunal affirmed the decision of the delegate.
The ground of this application is a very short and simple one. It is that the Tribunal “made a jurisdictional error by failing to complete its statutory task in that it misconstrued the criterion for the grant of a Subclass 100 partner visa set out in cl.100.221 (4) of Schedule 2 of the Regulations, and thereby failed the consider whether the Applicant satisfied that criterion for the grant of the visa”.
The particulars are that the Tribunal “misconstrued the criterion in that it considered that it had to be satisfied that a genuine spousal relationship existed prior to the occurrence of any claim of family violence”; that “the criterion does not require the Tribunal to be satisfied that a genuine spousal relationship existed prior to the occurrence of any claim of family violence”; and, that “the Tribunal failed to consider whether the Applicant suffered family violence committed by the sponsoring partner, and, accordingly, whether the Applicant satisfied the criterion”.
The notion that the Tribunal has to be satisfied that there was a genuine spousal relationship between the Sponsor and the Applicant before it could look at whether the exceptions apply, is not a novel concept. It would seem to me that such is a clear and ready interpretation of cl.100.221. It is also the view of Murphy J of the Federal Court in Kaur v Minister for Immigration and Border Protection [2014] FCA 1251, and also the view of the Full Court in Minister for Immigration and Border Protection v Truong [2016] FCAFC 54. Whilst those matters refer to cl.820.221, it is of note that cl.820.211 as it then was, is in exactly the same terms as cl.100.221 currently is.
In Kaur, His Honour, Murphy J said this at paragraph [43]-[44]:
As I have said, the Tribunal was not satisfied that the appellant and her sponsor were in a genuine spousal relationship at the time of the visa application. I considered that the Tribunal was not obliged to consider the issue of family violence…
44. In the context of an application for a partner visa, there is little utility in considering the issue of family violence unless a spousal relationship for the purposes of 820.211(2), is first established. As the Tribunal found that the appellant failed to establish the necessary relationship at the time of the visa application, there was no requirement for it to assess the issue of family violence.
Similarly in Truong (Supra), the Court consisting of Tracey, Flick and Griffiths JJ, said at paragraph [46]:
… there is “little utility” in considering the issue of “family violence” for the purposes of cl 820.221(6)(c) unless the spousal relationship is first established…
If one looked at those authorities and had regard to a prima facie interpretation of the clause, then one would see that what the Tribunal has done is quite correct.
However, on 3 August this year, His Honour Justice Wigney of the Federal Court, sitting on an appeal from the Federal Circuit Court, had an analogous matter before him in El Jejieh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1103. That matter was complicated by a number of certificates that were issued, withdrawn, new ones issued, and so on, but that does not concern this aspect.
His Honour allowed a new ground that was not argued before the Federal Circuit Court to be raised. It does not seem on the face of the judgment that this new ground, ground 9, was properly argued by both sides before His Honour. It is important that I set out what His Honour said at paragraphs 202 to 208. His Honour said at 202:
202. This ground of appeal raises an issue that was not ventilated before the primary judge. Mr El Jejieh was given leave to raise it on appeal notwithstanding. It hinges on the proper construction of the criterion in cl 100.221(4) of Sch 2 to the Regulations.
203. The relevant criteria for the grant of a Subclass 100 visa were outlined earlier in these reasons. One way that Mr El Jejieh was able to meet the criteria was to establish that he: was the holder of a Subclass 309 visa; was the spouse of his sponsoring partner; and two years had passed since he applied for the visa: cl 100.221(2) Another way he was able to meet the criteria was to establish that he: first entered Australia as the holder of a Subclass 309 visa; continued to hold that visa; would meet the requirements of cl 100.221(2) except that the relationship between him and his sponsoring partner had ceased; and he had suffered family violence committed by the sponsoring partner: cl 100.221(4).
204. It was tolerably clear that Mr El Jejieh was pursuing his review application before the Tribunal on the basis of cl 100.221(4). He had provided material to the Tribunal which included claims that he had suffered family violence committed by Ms Maarabani. The Tribunal was aware of those claims and asked Mr El Jejieh about them during the hearing. The Tribunal, however, made no findings concerning those claims. It found that it did not need to make any such findings because it found that there had never been a genuine spousal relationship between Mr El Jejieh and Ms Maarabani. In so finding, the Tribunal misconstrued the requirements of cl 100.221(4) and, as a result, failed to complete the exercise of its review jurisdiction.
205. The requirements of cl 100.221(4) have just been set out. They do not include a requirement that the applicant demonstrate that the applicant’s relationship with his or her sponsoring partner was a genuine relationship. The applicant does have to establish that he or she entered Australia as the holder of a subclass 309 visa and continued to hold that visa. A criterion for the grant of a subclass 309 visa is that the applicant was, at the time of application and decision, a spouse of, relevantly, an Australian citizen. Thus, if the applicant establishes that he or she held a Subclass 309 visa at the time they entered Australia and continued to hold that visa, in a sense that demonstrates that they were the spouse of an Australian citizen. But they do not need to demonstrate that fact separately. They need only demonstrate that they held and continue to hold a Subclass 309 visa.
206. It might perhaps be argued that the requirement, in cl 100.221(4)(b), which involves the cessation of the relationship between the applicant and the sponsoring partner, implies that there was a relationship in the first place. For the reasons already given, however, the relevant requirement in cl 100.221(4) is that the applicant held and continued to hold a Subclass 309 visa, not that there was a relationship. It might perhaps be added, in this context, that if the Minister became aware of information that suggested that the applicant for a Subclass 100 visa who held a Subclass 309 visa was never in a genuine relationship with his or her spouse, it would most likely be open to the Minister to cancel the applicant’s Subclass 309 visa. It would then follow that the applicant would not meet the criteria for the grant of a Subclass 100 visa. That did not, however, occur in this case.
207. Mr El Jejieh entered Australia as the holder of a Subclass 309 visa and continued to hold that visa at the time of his review application. While his relationship with Ms Maarabani had ceased by that time, he claimed that he met cl 100.221(4) because he suffered family violence committed by Ms Maarabani. The Tribunal was required to consider that claim. Its failure to do so was amounted to a failure of it to exercise its review jurisdiction.
208. Grounds 9 of Mr El Jejieh’s amended notice of appeal is accordingly made out.
The problem with what His Honour has said, with respect, is that it does not take into account what has been said in a number of cases, particularly, Kaur (Supra), and Truong (Supra). The other problem with what His Honour has said is that the criteria under sub (b) is really superfluous. If His Honour’s reasoning is correct, then satisfaction of (a) will necessarily mean satisfaction of (b). If that is so, one wonders why the legislature decided to insert sub (b) in the first place.
It seems to me that a person may have had a Section 309 visa, but because of the way in which the cl.100.221 is set out, it means that the decision maker is required to look at whether the Applicant and the Sponsor are in a genuine spousal relationship, notwithstanding that some other decision maker at the time of the granting of the Subclass 309 visa had determined that there was such a relationship.
For those reasons, I would normally say that, with greatest of respect to His Honour, that His Honour’s decision was plainly wrong on this particular point and refuse to follow it. However, I do not believe that in doing so that I would be following the principle of precedent. This Court, the Federal Circuit Court, is a Court of lower jurisdiction to that of the Federal Court, and the decision of His Honour, Wigney J, is the most recent decision from an appellate Court and, therefore, is binding upon this Court.
I am comforted in that view by what was said in the matter of SZGME v Minister for Immigration and Citizenship [2008] FCAFC 91. The Court there comprising Black CJ, Moore and Allsop JJ (as His Honour then was), made the following comments at paragraphs 42 and 43 of that decision;
42 In coming to that conclusion, the Federal Magistrate did not accept the conclusion of the single Judge in SZECD [2006] FCA 31; 150 FCR 53 that Li was inconsistent with Yilmaz and should not be followed. For the reasons we have given, we have come to the same conclusion. We should observe, however, that the principles of precedent required that the Federal Magistrate follow the decision in SZECD, being a decision of this Court in the appellate jurisdiction from the Federal Magistrates Court. We do not think that it was open to her Honour to regard what was said in SZECD as obiter. In this regard the observations of Lord Simon of Glaisdale in Miliangos v George Frank (Textiles) Ltd [1976] AC 443 at 478 are apposite, though his Lordship was in dissent. His Lordship said:
It is the duty of the subordinate court to give credence and effect to the [more recent] decision of the immediately higher court, notwithstanding that it may appear to conflict with the [earlier] decision of a still higher court. The decision of the still higher must be assumed to have been correctly distinguished (or otherwise interpreted) in the decision of the immediately higher court.
See also the valuable guidance in this respect in the judgment of Moffitt P in Proctor v Jetway Aviation Pty Ltd [1984] 1 NSWLR 166, in particular at 177-180.
43 Before turning to the question of the exercise of discretion to withhold relief, it is also appropriate to say something about the approach taken by the single Judge in SZECD. The conclusion that a Full Court decision should not be followed should be one left to another Full Court, even if the judge is exercising the appellate jurisdiction of the Court. The Court in Li said that Yilmaz was distinguishable. That should have been sufficient for a single Judge, if the appeal were not to be referred to a Full Court for hearing.
I find myself in the position that I feel that I am bound to follow what Wigney J has said in El Jejieh (Supra). For that reason, I will allow the application. I will issue the writs.
However, even though I have made those orders, I am going to stay those orders until such time as the Federal Court which, hopefully, will be a Full Court of the Federal Court determines the appeal of The Minister from my order.
I certify that the preceding twenty-five-five (25) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Vasta . Dated:9 December 2020
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