Sheyanova v Minister for Immigration
[2019] FCCA 2527
•13 September 2019, (delivered, by telephone , by Judge Kendall pursuant to s.75 of the Federal Circuit Court of Australia Act 1999 (Cth))
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SHEYANOVA & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 2527 |
| Catchwords: MIGRATION – Judicial review – Temporary Partner Visa –citizen of Russia – whether failure to consider alleged family violence – whether error in finding a hospital letter was a bogus document – whether denial of procedural fairness – whether jurisdictional error. |
| Legislation: Federal Circuit Court of Australia Act 1999 (Cth), s.75 Migration Act 1958 (Cth), Part 5, Division 5, ss.5, 5F, 357A, 359A, 360, 414, 474, 476 Migration Regulations 1994 (Cth), regs.1.22, 1.23, 1.24, Sch.2, cl.801.22; 801.221, 801.226, Schedule 4, cl.4020 |
| Cases cited: Arora & Anor v Minister for Immigration & Border Protection & Anor [2016] FCAFC 35, (2016) 238 FCR 153 |
| First Applicant: | YULIA SHEYANOVA |
| Second Applicant: | ANTON SHEYANOV |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 464 of 2015 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 1 July 2016 |
| Date of Last Submission: | 1 July 2016 |
| Delivered at: | Perth |
| Delivered on: | 13 September 2019, (delivered, by telephone , by Judge Kendall pursuant to s.75 of the Federal Circuit Court of Australia Act 1999 (Cth)) |
REPRESENTATION
| Counsel for the Applicants: | Mr E Vasilyev |
| Solicitors for the Applicants: | Morris, Alexander & Nelson |
| Counsel for the First Respondent: | Ms E Tattersall |
| For the Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The name of the first respondent be amended to read “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 464 of 2015
| YULIA SHEYANOVA |
First Applicant
| ANTON SHEYANOV |
Second Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicants seek judicial review (“Judicial Review Application”) pursuant to s.476 of the Migration Act 1958 (Cth) (“Migration Act”) of a decision of the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively) to affirm a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration and Border Protection (“Minister”) to refuse the applicants a Partner (Temporary) (Class BS) visa (“Partner Visa”).
Ms Yulia Sheyanova (“Ms Sheyanova”) is the first applicant, and her son, Anton Sheyanova (“Master Sheyanova” and collectively “the Sheyanovas’”), is the second applicant applying for the Partner Visa as a member of Ms Sheyanova’s family unit.
A copy of the Tribunal Decision is at Court Book (“CB”) 802-808.
The Court acknowledges that these Reasons for Judgment have been significantly delayed. The essential reasons for that are the case load in the Perth Registry of this Court over several years, which, as recently as November 2017, was described by the Federal Court as “extreme”, and the judicial resourcing of the Perth Registry of this Court which was described by the Federal Court as “under resourced”: WZASX v Minister for Immigration & Border Protection [2017] FCA 1415 at [32] per McKerracher J, with all of the case management, and other, consequences and effects both obvious and not obvious that flow therefrom. In relation to this case it is pertinent to note that the Court has had access to and read all of the relevant papers including:
a)the Judicial Review Application filed on 13 October 2015;
b)the applicants’ affidavits in support of the Judicial Review Application also filed on 13 October 2015 (“Ms Sheyanova’s Affidavit” and “Master Sheyanova’s Affidavit” respectively);
c)the affidavit of Jake Terence Kyranis (“Kyranis Affidavit”) affirmed 10 June 2016;
d)the affidavit of Margaret Lang affirmed 10 June 2016, annexing a copy of the transcript of a hearing before the Tribunal on 20 August 2015 (“Second Tribunal Hearing Transcript”);
e)outlines of submissions filed by the applicants on 20 May 2016 and the Minister on 10 June 2016;
f)the Court Book (“CB”), in which appears the Tribunal Decision dated 8 September 2015: CB 802-810; and
g)the Transcript of the hearing before the Court on 1 July 2016.
It is also relevant to note that there was no oral witness evidence or examination at the hearing of the matter before this Court. In the above circumstances, the delay, which the Court regrets, has had no effect upon the Court’s reasoning in these Reasons for Judgment. These Reasons for Judgment are being delivered, by telephone, by Judge Kendall pursuant to s.75 of the Federal Circuit Court of Australia Act 1999 (Cth).
Background prior to the Tribunal Decision
The background prior to the Tribunal Decision is as follows:
a)Ms Sheyanova lodged an application for the Partner Visa on 18 December 2012: CB 5-28. She was sponsored by her husband, Stephen Brown (“the Sponsor”): CB 29-37. Her son, Master Sheyanova, applied for the Partner Visa as a member of her family unit: CB 38-43;
b)on 3 December 2013 the Sponsor withdrew his sponsorship of Ms Sheyanova: CB 84;
c)on 28 January 2014 Ms Sheyanova submitted that she and the Sponsor had separated as a result of family violence perpetrated by the Sponsor: CB 108;
d)on 4 June 2014 the Delegate refused the grant of the Partner Visa on the basis that the Delegate was not satisfied that Ms Sheyanova was the spouse of the Sponsor, and accordingly did not meet the requirements of c1.801.221(6)(b) of Schedule 2 to the Migration Regulations 1994 (Cth) (“Migration Regulations”);
e)on 23 June 2014 Ms Sheyanova lodged an application for review of the Delegate’s Decision with the Tribunal: CB 214-224;
f)on 25 March 2015 Ms Sheyanova appeared before the Tribunal with the assistance of her migration agent and an interpreter, to give evidence and present arguments at the Tribunal hearing (“First Tribunal Hearing”): CB 455-458;
g)on 31 March 2015 Ms Sheyanova provided a written response to the adverse information raised at the First Tribunal Hearing: CB 459-495;
h)on 19 April 2015 Ms Sheyanova provided further documents including a translated Extract of Medical History #152 from “City Hospital” Municipal Health Institution Nakhoda (“Hospital” and “Hospital Medical Extract Letter”): CB 585
on 3 July 2015 the Tribunal sent a letter to the Sheyanovas’ inviting them to comment on or respond to information: CB 673-674;
j)on 13 July 2015 Mr Kristopher (the Sheyanova’s migration agent), sent the Tribunal a Registered Migration Agent Notice and Request for Access to written material: CB 680-683;
k)on 21 July 2015 the Tribunal invited Ms Sheyanova to attend a further Tribunal hearing to take evidence in relation to PIC 4020: CB 686-687;
l)on 11 and 18 August 2015 Mr Kristopher provided responses to the Tribunal hearing invitation in the form of written submissions and further documents: CB 698-721;
m)on 19 August 2015 Mr Kristopher, provided further written submissions: CB 722-735;
n)a second Tribunal hearing took place on 20 August 2015: CB 779-782 (“Second Tribunal Hearing”);
o)Ms Sheyanova, who had the assistance of an interpreter, and Mr Kristopher attended the Second Tribunal Hearing: CB 778-782;
p)on 21 August 2015 Mr Kristopher requested written material from the Tribunal which was provided on 27 August 2015: CB 785-790; and
q)on 4 September 2015 Mr Kristopher provided further written submissions to the Tribunal: CB 791-798.
Tribunal Decision
On 8 September 2015 the Tribunal affirmed the Delegate’s Decision: CB 802.
In the Tribunal Decision the Tribunal:
a)noted that at the First Tribunal Hearing, it raised with Ms Sheyanova its concern in relation to her returning to Russia for some time shortly after her marriage to the Sponsor, and that it had invited her to provide evidence to support her claim that she had returned as her mother had been hospitalised: CB 803-804 at [6] and [10];
b)noted that Ms Sheyanova subsequently provided the Hospital Medical Extract Letter to support the claim: CB 585 and 803 at [7]. The Hospital Medical Extract Letter was referred for verification via the Moscow Post of the Department of Foreign Affairs and Trade (“DFAT”), and the Hospital’s response (“Hospital DFAT Letter”) said that Ms Sheyanova’s mother had not been a patient during the period from 15 to 28 January 2013 in the Hospital Medical Extract Letter: CB 669 and 803 at [8];
c)considered the further evidence provided by Ms Sheyanova in relation to this issue: CB 805-806 at [20]-[30];
d)found that statutory declarations provided by Ms Sheyanova’s mother and friends did not adequately address the fact that Ms Sheyanova had provided the Tribunal with the Hospital Medical Extract Letter a document, which purported to be from the Hospital, stating that Ms Sheyanova’s mother was an inpatient from 15 to 28 January 2013, when the clear advice from the DFAT Moscow Post was that her mother was not a patient of the Hospital during that period: CB 806 at [28];
e)in addressing submissions made by Ms Sheyanova’s representative, did not accept that the Hospital did not keep accurate records or that there had been a translation error in relation thereto: CB 807 at [31]-[32];
f)as a result, found that the Hospital Letter was a bogus document, and accordingly, Ms Sheyanova did not meet the requirements of cl.4020 of Schedule 4 of the Migration Regulations (“PIC 4020”): CB 807 at [33]-[34];
g)went on to consider whether the requirements of PIC 4020(1) should be waived under PIC 4020(4), but noted that Ms Sheyanova had made no claims in that regard (despite being invited to on multiple occasions) and consequently found that the requirement should not be waived: CB 808 at [38]; and
h)found that Ms Sheyanova did not satisfy PIC 4020 and therefore did not meet cl.801.226 of Schedule 2 (“cl.801.226”) of the Migration Regulations: CB 808 at [39].
The Judicial Review Application
The Judicial Review Application contains seven grounds of review which essentially relate to three issues, as follows:
a)grounds 1, 5 and 7 relate to the Tribunal’s failure to assess the alleged family violence claims;
b)grounds 2, 4 and 6 relate to the Tribunal's assessment of the Hospital Letter as a bogus document; and
c)ground 3 relates to a purported denial of natural justice or procedural fairness relating to the Second Tribunal Hearing.
Each of these issues is considered below, with the relevant grounds of review set out or referred to at the commencement of consideration of the issue. For reasons which will become apparent it is convenient to deal with the family violence issue last.
Jurisdictional error required
A Tribunal Decision may be set aside by this Court upon judicial review if it is affected by jurisdictional error: Migration Act, ss.474 and 476; Plaintiff S157/2002 v The Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 195 ALD 1. An error may constitute a jurisdictional error where the Tribunal identifies a wrong issue, asks the wrong question, ignores relevant material or relies on irrelevant material, in such a way that the Tribunal’s exercise or purported exercise of power is thus affected resulting in a decision exceeding, or a failure to exercise, the authority or powers given to the Tribunal under the Migration Act: Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ.
Jurisdictional error may also arise:
a)by reason of a breach of the procedural fairness required by provisions of the Migration Act: SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300 (“SZBEL”) at [32]-[33] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ;
b)where the Tribunal has made a determination regarding a relevant state of satisfaction based on inferences or findings, which are not based upon probative material and logical grounds: Minister for Immigration & Citizenship v SZLSP [2010] FCAFC 108; (2010) 187 FCR 362; (2010) 272 ALR 115; (2010) 117 ALD 259 FCR at [40] per Kenny J; Minister for Immigration & Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248 CLR at [37]-[42] per Gummow CJ and Kiefel J;
c)if the finding of fact made by the Tribunal can be shown to be illogical or irrational, that being a finding of fact which no rational or logical Tribunal could have arrived at on the same evidence: Minister for Immigration & Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248 CLR at [130] per Crennan and Bell JJ. The threshold is high and it must be shown to have affected the decision: SZOOR v Minister for Immigration & Citizenship [2012] FCAFC 58; (2012) 202 FCR 1; (2012) 289 ALR 463; (2012) 127 ALD 1 FCR at [2] per Rares J and [85] per McKerracher J; and
d)by reason of legal unreasonableness: Minister for Immigration & Citizenship v Li & Anor [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 138 ALD 181 (“Li”) at [28] per French CJ, [66] and [76] per Kiefel, Hayne and Bell JJ, and [105] per Gageler J; Minister for Immigration & Border Protection v Singh & Anor [2014] FCAFC 1; (2014) 231 FCR 437; (2014) 308 ALR 280; (2014) 139 ALD 50 (“Singh 2014”) at [44]-[45] per Allsop CJ, Robertson and Mortimer JJ.
The Court has no jurisdiction to engage in merits review, and fact-finding is a matter for the Tribunal, and is not reviewable by this Court if the findings of fact were open to the Tribunal, and otherwise made in accordance with the law: NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167 at [9] per Heerey, RD Nicholson and Selway JJ; Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1, CLR at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ (“Wu Shan Liang”). The weight to be given to an applicant's claims and evidence is a matter for the Tribunal to assess as part of its fact-finding function: Wu Shan Liang, CLR at 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ.
Preliminary issue
Grounds 1, 2, 5, 6 and 7 of the Judicial Review Application are framed in a way that seeks to review both the Delegate’s Decision and the Tribunal Decision.
To the extent that the Sheyanovas seeks review of the Delegate’s Decision this Court has no jurisdiction to review the Delegate’s Decision, which is a primary decision for the purpose of s.476(2)(a) of the Migration Act. Furthermore, the Tribunal Decision operates to cure any defects in the Delegate’s Decision: Zubair v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 248; (2004) 139 FCR 344; (2004) 211 ALR 261; (2004) 80 ALD 534; Minister for Immigration & Multicultural & Indigenous Affairs v Ahmed [2005] FCAFC 58; (2005) 143 FCR 314. The Court will proceed on the basis that the Judicial Review Application relates only to the Tribunal Decision.
Assessment of the Hospital Letter as a bogus document
Grounds of review
Grounds 2, 4 and 6 of the Judicial Review Application are as follows:
Ground two
The decisions by the First Respondent and the Second Respondent involved an error of law.
Particulars
(1)The Second Respondent failed to answer the question whether the allegedly bogus document had the necessary quality of "purposeful falsity" as required by the law. The allegedly bogus document had no relation to genuine and continuous relationship between the Applicant and her husband and the Applicant's family violence claim.
(2)The Second respondent failed to address whether there was any fraud on the side on the Applicant in obtaining the allegedly bogus document and whether the Applicant's explanations could explain an innocent mistake as required by the law.
Ground four
There was no evidence or other material to justify the decision of the Second Respondent that the Applicant provided a bogus document.
Particulars
(1)None of the evidence suggests that the signature or seal on the document were counterfeit. None of the evidence suggests that the document was issued by an unauthorised person.
(2)The letter from the Nahodkinskaya City Hospital states only that the information in the document is allegedly incorrect.
Ground six
The making of the decision by the First and the Second Respondents was an improper exercise of the power, namely taking an irrelevant consideration into account.
Particulars
(1) The First and the Second Respondents took into account that the Applicant went to Russia in December 2012 to attend her mother who became very sick. This is not relevant for the Applicant's visa application as in August 2013 the Applicant's sponsor (her husband) send an email to the First Respondent fully supporting her visa application and stating that they were in continuous marital relationship and not complaining to any events prior to August 2013.
Sheyanovas’ submissions
In relation to ground 2 it was submitted that:
a)the decision by the Tribunal involved an error of law, particularised as follows:
i)at the First Tribunal Hearing Ms Sheyanova mentioned that she went overseas for the period from December 2012 to March 2013 because her mother was sick;
ii)Ms Sheyanova provided further evidence, namely the Hospital Medical Extract Letter: CB 667 and 668;
iii)the Tribunal received advice from DFAT’s Moscow Post that they had contacted the Hospital in question and the Hospital had advised (in the Hospital DFAT Letter) that Ms Sheyanova’s mother was not a patient of the Hospital from 15 to 28 January 2013: CB 669 and 670;
iv)based on the information received from the DFAT Moscow Post the Tribunal concluded that Ms Sheyanova did not satisfy cl.4020(1) for the purposes of cl.801.226 of the Migration Regulations because Ms Sheyanova had provided a bogus document to the Tribunal: CB 807;
b)citing the definition of “bogus document” in s.5 of the Migration Act, and Kaur v Minister for Immigration & Border Protection [2014] FCA 1276 (“Kaur”) at [56]-[57] per Barker J (citing Trivedi & Ors v Minister for Immigration & Border Protection & Anor [2014 FCAFC 42; (2014) 220 FCR 169; (2014) 141 ALD 252 (“Trivedi”)), referred to how it was said the Federal Court had said PIC 4020 should be applied;
c)Ms Sheyanova provided evidence and submissions substantiating that:
i)her mother was unwell during the period in question;
ii)her mother received treatment in the Hospital;
iii)the Hospital Medical Extract Letter was not a counterfeit; and
iv)the contradiction between the Hospital Medical Extract Letter and the Hospital DFAT Letter could be caused by a result of lack of records and the nature of combined treatment which her mother received: CB 710-716;
d)there is no evidence that the Hospital Medical Extract Letter was a counterfeit. No examination as to whether a signature or a stamp were counterfeit was conducted. Rather, although not admitted by the Sheyanovas, there is some evidence suggesting that the information in the Hospital Medical Extract Letter was incorrect;
e)the Tribunal failed to answer the question whether the allegedly bogus document had the necessary quality of "purposeful falsity" as required by the law. The allegedly bogus document had no relation to the genuine and continuous relationship between Ms Sheyanova and the Sponsor and Ms Sheyanova's family violence claim;
f)the Tribunal made the decision to determine the matter on the basis of PIC 4020 exclusively without assessing whether Ms Sheyanova was the spouse of the Sponsor and without assessing Ms Sheyanova's claim that she is a victim of family violence: CB 804 at [10]-[11];
g)the allegedly bogus document in question relates to the period 15 to 28 January 2013 when the Ms Sheyanova left Australia to provide care to her sick mother in Russia: CB 667. However, the Tribunal had evidence that the Sponsor himself provided a letter dated 1 August 2013: CB 71, to the Department of Immigration and Border Protection (“Department”) stating that:
I confirm that my wife and I are in a continuing loving relationship. We share the family home and duties and attend functions together as husband and wife.
h)the Sponsor in August 2013 provided a written submission: CB 71-72, to the Delegate confirming that they had genuine and continuous relationship so far;
the Tribunal fell into a jurisdictional error by finding that the Hospital Medical Extract Letter was a bogus document without assessing Ms Sheyanova’s substantial claims about her relationship and family violence;
j)the Tribunal failed to addresses the problem of attempts to work a fraud or deception on the side of Ms Sheyanova at all. The Tribunal addressed only the following questions:
Has the applicant given, or caused to be given a bogus document, or information that is false or misleading in material particular?
CB 804;
Should the requirements of cl.4020(1) or (2) be waived?
CB 807;
k)the Tribunal failed to address whether there was any intention on the part of Ms Sheyanova or any other person to falsify the Hospital Medical Extract Letter, or to provide a falsified document to the Tribunal, or whether the Hospital Medical Extract Letter had the necessary quality of purposeful falsity;
l)the Tribunal failed to address whether there was any fraud on the part of Ms Sheyanova in obtaining the allegedly bogus document and whether Ms Sheyanova's explanations could explain an innocent mistake, as required by the law; and
m)the Tribunal failed to assess whether there was any benefit for Ms Sheyanova to provide an allegedly bogus document to substantiate her absence from Australia in January 2013 when the Sponsor did not contest their relationship, at least prior to August 2013: CB 71-72, and Ms Sheyanova's claim to be granted the Partner Visa is based on family violence which occurred after January 2013: CB 278-279.
In relation to ground 4 it was submitted that:
a)there was no evidence or other material to justify the decision of the Tribunal that Ms Sheyanova provided a bogus document;
b)in Singh v Minister for Immigration & Ethnic Affairs (unreported, Federal Court of Australia, NG 319 of 1994, Sackville J, 6 December 1994) (“Singh 1994”)(the Court notes the citations in the Sheyanovas’ Outline of Submissions were wrong) the Federal Court discussed the burden of proof in immigration matters relating to false statements at p.8 per Sackville J as follows:
… the burden lies upon the Minister of proving the facts demonstrating the falsity of the statements made by the applicant.
c)as to the standard of proof in regard to bogus documents, in Tarasovski v Minister for Immigration, Local Government & Ethnic Affairs (1993) 45 FCR 570 (“Tarasovski”) at 572-573 per Wilcox J the Federal Court observed that:
… a court should find that the person has contravened s.20 [in relation to bogus documents] only where the evidence establishes that proposition to a high degree of satisfaction; see Briginshaw v Briginshaw (1938) 60 CLR 338 at 361-362 ....
d)the information in the Hospital DFAT Letter, does not constitute evidence that Ms Sheyanova submitted a bogus document;
e)the Tribunal’s conclusion that the Hospital Medical Extract Letter was a bogus document was based exclusively on the Hospital DFAT Letter which states that according to the automatic registry system Ms Sheyanova's mother was not a patient from 15 to 28 January 2013: CB 669 and 670;
f)the Hospital DFAT Letter states neither of the following as per requirements of s.5 of the Migration Act:
i)that the Hospital Medical Extract Letter was not issued by the Hospital;
ii)that the Hospital Medical Extract Letter is counterfeit or has been altered by unauthorised person; and
iii)that the Hospital Medical Extract Letter was obtained because of a false or misleading statement;
g)none of the evidence suggests that the signature or seal on the Hospital Medical Extract Letter were counterfeit or that the document was issued by an unauthorised person. Without admission of the fact by the Sheyanovas’, the Hospital DFAT Letter states only that the information in the document is allegedly incorrect;
h)the Hospital DFAT Letter does not support the information contained in the Hospital Medical Extract Letter. The Tribunal made an error in law by considering the issue of the bogus document instead of considering information that is false or misleading in a material particular in relation to:
i)the application for the Partner Visa; or
ii)a visa that Ms Sheyanova held in the period of 12 months before the application was made as per PIC 4020(1);
iii)information that is false or misleading in a material particular is defined in PIC 4020(5):
(a) false or misleading at the time it is given; and
(b) relevant to any of the criteria the Minister may consider when making a decision on an application, whether or not the decision is made because of that information.
the Tribunal made a jurisdictional error considering the bogus document issue in circumstances where there was no evidence of that, rather than considering whether the Hospital Medical Extract Letter contained false or misleading information. If the Tribunal has chosen to consider the matter on the basis of PIC 4020(5) which is applicable to the matter rather than the bogus document, the Tribunal would have to assess whether the Hospital Medical Extract Letter was relevant to any visa criteria. That would have required assessment of Ms Sheyanova's substantive claim about genuine and continuing relationship and family violence. However, the Tribunal made a decision not to assess these claims: CB 804 at [10]-[11].
In relation to ground 6 it was submitted that:
a)the Tribunal Decision involved an improper exercise of power, because it took into account an irrelevant consideration;
b)the Tribunal took into account that Ms Sheyanova went to Russia in December 2012 to attend her mother who became very sick: CB 803 at [7]. This is not relevant to Ms Sheyanova's Partner Visa application, as on 1 August 2013 Ms Sheyanova's Sponsor sent an email to the Delegate fully supporting the Partner Visa application and stating that they were in a continuous marital relationship and not complaining of any events prior to August 2013: see CB 71:
I confirm that my wife and I are in a continuing loving relationship. We share the family home and duties and attend functions together as husband and wife.
c)the Tribunal made adverse findings in relation to Ms Sheyanova based on the events which took place in January 2013. However, Ms Sheyanova's relationship with the Sponsor was continuous from March 2011 till January 2014: CB 727 at [11]-[12]; and
d)the Tribunal took an irrelevant matter into consideration, namely the Hospital Medical Extract Letter which relates to events in January 2013.
Minister’s submissions
The Minister submitted that:
a)in relation to Ms Sheyanova’s various grounds of review there was no error in the Tribunal's considerations or findings in relation to the Hospital Medical Extract Letter;
b)the Tribunal demonstrated its cognisance of the relevant legal issues in:
i)identifying the relevant legislative requirements of PIC 4020: CB 804 at [12] [14]); and
ii)identifying the relevant case law surrounding the operation of PIC 4020: CB 804-805 at [14]-[16], and particularly making reference to the case of Trivedi and the necessity for an element of fraud or deception: CB 805 at [16];
c)the Tribunal Decision demonstrates that it then assessed the evidence by reference to that legislation and case law;
d)in reaching its relevant findings, the Tribunal gave consideration to the “numerous external evidence and submissions”: Applicant's Outline of Submissions at [33]; CB 805-807 at [18] [29] and [30];
e)ultimately, however, the Tribunal placed more weight on the information in the Hospital DFAT Letter, finding that the Hospital Medical Extract Letter was not genuine: CB 807 at [33], and the Tribunal's finding in that regard necessarily meant that the Hospital Medical Extract Letter had been fraudulently altered or prepared which could not have been done without purposeful activity: Singh v Minister for Immigration & Border Protection [2014] FCA 850 at [24] per White J;
f)in any event, the Tribunal went on to make a specific finding that the Hospital Medical Extract Letter had been obtained by fraud or deception: CB 807 at [33];
g)it is well established that it is not necessary for the Tribunal to conclude that Ms Sheyanova was aware that the information was purposely untrue: Trivedi, and it cannot therefore be maintained that the Tribunal failed to assess the issue of purposeful falsity, and Ms Sheyanova’s ground 2 of review, in this respect, constitutes no more than a complaint as to the weight given by the Tribunal to the evidence before it;
h)it further cannot be maintained that there was no evidence upon which the Tribunal could base its finding that the Hospital Medical Extract Letter was a bogus document;
in order for this ground to succeed Ms Sheyanova is required to demonstrate that there is an actual absence of any foundation in fact for the fulfilment of the conditions upon which, in law, the existence of a power depends, or put another way, that is there is no evidence to support a finding of a jurisdictional fact: SZAPC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 995 at [57] per Madgwick J;
j)the information received from the DFAT Moscow Post, that is the Hospital DFAT Letter, provided a clear basis to support the Tribunal’s finding that the Hospital Medical Extract Letter was a bogus document;
k)the Tribunal bore no burden of proof in establishing that the letter was a bogus document. In Sun v Minister for Immigration & Border Protection [2016] FCAFC 52 (“Sun”), in considering PIC 4020, the plurality in the Full Court of the Federal Court held that there is no statutory source of any onus imposed upon the Tribunal in relation to a bogus document nor is there any sound reason to import into the Tribunal's decision making the common law concept of onus of proof: Sun at [79] per Flick and Rangiah JJ;
l)the Hospital Medical Extract Letter did not constitute an irrelevant consideration. To constitute an irrelevant consideration, the consideration must be one that, either expressly or by implication, a decision maker is forbidden or prohibited from taking into account: SZTBJ v Minister for Immigration & Anor [2015] FCCA 580 at [95] per Judge Lloyd-Jones;
m)the Hospital Medical Extract Letter was relevant to the Partner Visa application in circumstances where it was submitted by Ms Sheyanova in support thereof, and specifically in relation to concerns raised by the Tribunal at the First Tribunal Hearing;
n)unlike a document considered to be false and misleading in a material particular it was not necessary for the Tribunal to consider whether the Hospital Medical Extract Letter was provided “in relation to” a criterion of the Partner Visa application. Instead, the information was only required to have been given or caused to have been given to the Tribunal “in relation to” the Partner Visa: PIC 4020(1);
o)in Nanre v Minister for Immigration & Border Protection [2015] FCA 528; (2015) 232 FCR 80 (“Nanre”) at [27] per White J, it was held that it made no difference that the bogus document may have later been irrelevant to the application; and
p)it follows that there was no jurisdictional error in relation to the bogus document issue.
Consideration – Hospital Medical Extract Letter – bogus document issue
Ms Sheyanova’s contention is that the Tribunal made an error of law when finding that the Hospital Medical Extract Letter was a bogus document because:
a)it did not answer the question as to whether the document had the necessary quality of purposeful falsity;
b)it failed to address whether there was any fraud on Ms Sheyanova’s part or if Ms Sheyanova’s explanations could explain an innocent mistake;
c)it had no relation to the issue of whether there was a genuine and continuous relationship between Ms Sheyanova and the Sponsor; and
d)it was not based on any evidence or other material.
One of the primary criteria to be satisfied at time of decision regarding a Subclass 801 Partner visa is contained in cl.801.226 of the Migration Regulations which states that “the applicant satisfies public interest criteria 4020 and 4021”.
PIC 4020 states:
(1) There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal during the review of a Part 5‑reviewable decision, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:
(a) the application for the visa; or
(b) a visa that the applicant held in the period of 12 months before the application was made.
(2) The Minister is satisfied that during the period:
(a) starting 3 years before the application was made; and
(b) ending when the Minister makes a decision to grant or refuse to grant the visa;
the applicant and each member of the family unit of the applicant has not been refused a visa because of a failure to satisfy the criteria in subclause (1).
(2AA) However, subclause (2) does not apply to the applicant if, at the time the application for the refused visa was made, the applicant was under 18.
(2A) The applicant satisfies the Minister as to the applicant’s identity.
(2B) The Minister is satisfied that during the period:
(a) starting 10 years before the application was made; and
(b) ending when the Minister makes a decision to grant or refuse to grant the visa;
neither the applicant, nor any member of the family unit of the applicant, has been refused a visa because of a failure to satisfy the criteria in subclause (2A).
(2BA) However, subclause (2B) does not apply to the applicant if, at the time the application for the refused visa was made, the applicant was under 18.
(3) To avoid doubt, subclauses (1) and (2) apply whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant.
(4) The Minister may waive the requirements of any or all of paragraphs (1)(a) or (b) and subclause (2) if satisfied that:
(a) compelling circumstances that affect the interests of Australia; or
(b) compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;
justify the granting of the visa.
(5) In this clause:
information that is false or misleading in a material particular means information that is:
(a) false or misleading at the time it is given; and
(b) relevant to any of the criteria the Minister may consider when making a decision on an application, whether or not the decision is made because of that information.
Note: For the definition of bogus document, see subsection 5(1) of the Act.
The term “bogus document” is defined in s.5 of the Migration Act as follows:
“bogus document”, in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a) purports to have been, but was not, issued in respect of the person; or
(b) is counterfeit or has been altered by a person who does not have authority to do so; or
(c) was obtained because of a false or misleading statement, whether or not made knowingly.
The Court notes:
a)the Full Court of the Federal Court set out how PIC 4020 should be applied in Trivedi at [28], [32], [43], [49], [50], [52] and [53] per Buchanan J (Allsop CJ and Rangiah J agreeing at [1] and [56] respectively):
28. As it will be necessary to return to the first issue (the knowledge of the visa applicant) when I deal with the appellants’ arguments, I will content myself with saying here that I am satisfied that it is not necessary a visa applicant know of, or be directly involved in, any falsehood for PIC 4020 to be engaged. I will return to that issue.
32. …I would not infer any apparent intention to disqualify a visa applicant who could explain an innocent mistake in a document or information provided by them. PIC 4020 is not directed, in my view, to innocent, unintended or accidental matters…
43. In my view, it is not necessary (for reasons yet to be further developed) to show knowing complicity by a visa applicant. That would impose an impossible task on those administering the visa system. But it is necessary that the information or document have the necessary quality of purposeful falsity, whether or not the visa applicant can be shown to have knowledge of that fact.
49. For the reasons I have already given, it should be accepted that PIC 4020 is directed to information or documents which are purposely untrue. It seems to me to be clear from the same analysis that the purpose of PIC 4020 was to render visa applicants ultimately responsible for the veracity of the information and documents supplied to support the application. Although the limited terms of the waiver (and therefore any discretion to excuse non-compliance) make it apparent that innocent errors are not the focus of attention, it is equally clear that PIC 4020 is directed at the overall integrity of the visa system and as a bulwark against deception and fraud from any quarter associated with a visa applicant. It is not inconsistent with a coherent public policy to make a visa applicant ultimately responsible for purposely untrue material provided with a visa application. It would be an intolerable burden on the administration of the visa system to require that those assessing visa applications not only discover that information or documents are false in a material particular, but also that the visa applicant who provided them knew them to be so. In many cases that would be impossible and would defeat the apparent intent of the provision.
50. …It was clearly open to the MRT, on the other facts found by it, to conclude that it was bogus. It was a counterfeit. It was not the real thing. The fact that a formal declaration to that effect was not made in the present case does not alter the character of the document, or the information it contained. It was also open to the MRT to find, as it did, that the information thereby given by the first appellant was false or misleading in a material particular. It was not necessary to prove that the first appellant knew the contents of the document were false or misleading when she proffered it.
52. … it was not necessary for the MRT to find that the first appellant knowingly provided false information, or to determine whether she knew or did not know that the information was false when she gave it.
53. …the FCCA was correct to conclude that no mental element on the part of a visa applicant is required to engage PIC 4020. The information provided by the first appellant to the Minister’s Department was misleading and false…
b)further, the Full Court of the Federal Court in Arora & Anor v Minister for Immigration & Border Protection & Anor [2016] FCAFC 35, (2016) 238 FCR 153 (“Arora”) at [15] and [17] per Buchanan, Perram and Rangiah JJ, stated:
15. Properly construed there is no requirement in PIC 4020(1) that the falsity of a bogus document should be relevant to the criteria that the Minister is considering. PIC 4020(1) and the definition in s 5 address separately the falsity, respectively, of information (in PIC 4020(5)) and bogus documents (in s 5). Each has its own particular regime. The definition of “bogus document” in s 5 is not concerned with the truth or otherwise of statements but with the reliability of documentation. It would be a most unworkable outcome if the Minister could not rely on the fact that a document was counterfeit but had to consider, in turn, whether the statements contained in it were, in any event, correct and otherwise relevant to the matters he had to consider. As a matter of formality, it is the definition of “bogus document” in s 5 which will apply unless “the contrary intention appears”. For the reasons just given, the contrary intention does not appear and the concept of a “bogus document” is not subject to the gloss suggested by Mr Arora.
17. In those circumstances, it is not correct that the falsity of a bogus document needs to be relevant to the criteria to be considered by the Minister on the visa application.
In the Tribunal Decision the Tribunal noted that:
a)that one of the issues for review was cl.801.226 of the Migration Regulations and whether Ms Sheyanova met PIC 4020: CB 804 at [11];
b)that broadly, PIC 4020 requires that: CB 804 at [12]:
i)there is no evidence that the applicant has given a bogus document or information that is false or misleading in support of an application for a visa: PIC 4020(1);
ii)the applicant and each member of the family unit have not been refused a visa because of a failure to satisfy PIC 4020(1) or (2A) during the period starting 3 years before the application was made and ending when the visa is granted or refused, unless the applicant was under 18 at the time the application for the refused visa was made: PIC 4020(2), (2A), (2AA) and (2BA);
iii)the Minister has been satisfied as to the identity of the applicant: PIC 4020(2A);
c)that in relation to PIC 4020(1) and (2) if compelling or compassionate reasons were provided as justification for granting the visa it can be waived: CB 804 at [13];
d)whether according to the definitions contained in PIC 4020(5) or s.5(1) of the Migration Act, information was false or misleading in a material particular or a document was obtained because of a false or misleading statement has no requirement that it be relevant to the criterion for the grant of the visa: Batra v Minister for Immigration & Citizenship [2013] FCA 274; (2013) 212 FCR 84; (2013) 138 ALD 266: CB 804-805 at [14];
e)the requirement not to provide a bogus document applies even in circumstances where it was the applicant who provided the information, knowingly or unwittingly: CB 805 at [15], and according to Trivedi it was not necessary that the applicant was aware that the information was purposely untrue, however, an element of fraud or deception by someone is necessary to engage PIC 4020: CB 805 at [16];
f)the document in issue was the Hospital Medical Extract Letter, which stated that Patient Perezhogina (Ms Sheyanova’s mother) was under inpatient treatment from 15 to 28 January 2013 with a diagnosis of cerebral blood flow disruption: CB 805 at [17];
g)the evidence provided by Ms Sheyanova in support of her reason for travelling to Russia to take care of her ill mother and that the Hospital was confused as to her mother’s treatment: CB 805-806 at [18]-[27], included statutory declarations from:
i)Ms Sheyanova dated 16 July 2015: CB 714-716 and 805 at [19]-[20];
ii)Tatiana Perezhogina dated 14 July 2015: CB 710-711 and 805 at [21];
iii)Ryadinskaya Olga Anatolyevna dated 14 July 2015: CB 712-713 and 805 at [22];
iv)Kabeleva Lyudmila Nikolayevna dated 28 July 2015: CB 720-721 and 805-806 at [23];
v)Marina Soubbotkina dated 30 March 2015: CB 489-490, 777-778 and 806 at [24];
vi)Anton Sheyanova dated 30 March 2015: CB 484-487 and 806 at [25]; and
vii)Natalie Ahmuda dated 31 March 2015: CB 492-493 and 806 at [26];
h)the written submissions provided by Mr Kristopher dated 4 September 2015 submitting that the Hospital DFAT Letter does not state that the Hospital Medical Extract Letter is not genuine, but rather the Hospital Medical Extract Letter simply records the information in the Hospital automatic registry system, and the Hospital’s “confusion” could be the result of the mother receiving a combination of treatment, translation errors and time passed since January 2013, and accordingly little weight should be given to the Hospital DFAT Letter: CB 793-798 and 806-807 at [30].
In the Tribunal Decision the Tribunal found:
a)none of the statutory declarations adequately addressed the fact that the Hospital Medical Extract Letter provided by Ms Sheyanova, specifically stated that her mother was an inpatient at the Hospital from 15 to 28 January 2013, but simply that Ms Sheyanova’s mother was unwell: CB 806 at [28];
b)the evidence that Ms Sheyanova’s mother had a mixture of treatment as both an inpatient and outpatient does not address the Hospital Medical Extract Letter provided by Ms Sheyanova stating that from 15 to 28 January 2013 her mother was an inpatient: CB 806 at [29];
c)it did not accept that the Hospital would not keep accurate records, and there was no independent evidence to show that the registry system would not show the treatment of a patient by the Hospital, which clearly indicates that the Hospital Medical Extract Letter provided by Ms Sheyanova was not a genuine hospital document: CB 807 at [31];
d)no evidence or accredited translation was provided to support the claim that the Hospital Medical Extract Letter provided by Ms Sheyanova contained translation errors, none of which were claimed to be of any substance in any event, particularly regarding the dates, therefore the original translation is considered to be reliable: CB 807 at [32];
e)the Hospital Medical Extract Letter provided by Ms Sheyanova is not genuine and it is not persuaded by the evidence in view of the clear written advice from the Hospital that Ms Sheyanova’s mother was not an inpatient at the Hospital at the times claimed. The evidence obtained from the Hospital (that is, the Hospital DFAT Letter) is reliable and there is no reason for the Hospital, as an independent body to give false evidence. Therefore, the Hospital Medical Extract Letter provided by Ms Sheyanova was obtained by the fraud or deception of Ms Sheyanova: CB 807 at [33];
f)it reasonably suspects that the Hospital Medical Extract Letter provided by Ms Sheyanova is a counterfeit or has been altered by a person who does not have authority to do so, and due to there being evidence before the Tribunal that Ms Sheyanova has given to the Tribunal a bogus document as defined under s.5(1) of the Migration Act, Ms Sheyanova does not meet PIC 4020(1): CB 807 at [34]-[35]; and
g)it was not satisfied that PIC 4020(1) and (2) should be waived, and that Ms Sheyanova did not make any claims in that regard: CB 807-808 at [37]-[38].
The Court’s view is that:
a)it was not necessary for the Tribunal to find that Ms Sheyanova knew that the information contained in the Hospital Medical Extract Letter that she provided to the Tribunal was false in a material particular, or to make a finding that Ms Sheyanova knew at the time the Hospital Medical Extract Letter was provided to the Tribunal that the information therein was false: Trivedi at [49], [52]-[54] per Buchanan J.;
b)the Tribunal made a finding that the Hospital Medical Extract Letter had been obtained by fraud or deception by Ms Sheyanova at CB 807 at [33], after considering the various statements provided as evidence of Ms Sheyanova’s mother’s illness as being the reason why Ms Sheyanova returned to Russia during the period from 15 to 28 January 2013, Ms Sheyanova’s claim that her mother was both an inpatient and outpatient, and the advice received from the DFAT Moscow Post, and that no adequate explanation had been provided by Ms Sheyanova as to why the Hospital Medical Extract Letter stated that her mother was an inpatient on the dates claimed: CB 806 at [28]-[29];
c)the Tribunal made its finding that the Hospital Medical Extract Letter provided by Ms Sheyanova was a bogus document after considering all the evidence and claims put before it by Ms Sheyanova, including the Hospital DFAT Letter: CB 805-807[17]-[32]; Minister for Immigration & Citizenship v SZJSS & Ors [2010] HCA 48; (2010) 243 CLR 164; (2010) 85 ALJR 306; (2010) 273 ALR 122; (2010) 119 ALD 446 at [26] and [30] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ, and chose to place greater weight on the Hospital DFAT Letter, which the Tribunal was entitled to do: CB 807 at [33]; NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11] per Gray, Tamberlin and Lander JJ; and
d)in order for the Court to make a “no evidence” finding requires that there clearly be no evidence to support the finding concerned, as where there is some evidence, “even just a skerrick”, before the Tribunal, the Court cannot make a “no evidence” finding: MZZUG v Minister for Immigration & Border Protection [2015] FCA 1151 at [59] per Murphy J; MZZYE v Minister for Immigration & Border Protection [2015] FCA 1378 at [54] per Murphy J. The finding of the Tribunal that the Hospital Medical Extract Letter provided by Ms Sheyanova was a bogus document, was not an unreasonable finding to make on the evidence, and there was evidence to support it, including the Hospital DFAT Letter which states that Ms Sheyanova’s mother was not an inpatient from 15 to 28 January 2013: Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 32; (2004) 78 ALJR 992; (2004) 207 ALR 12; (2004) 78 ALD 224, at [41] per Gummow and Hayne JJ.
The Court is also of the view that the Tribunal’s consideration of the Hospital Medical Extract Letter provided by Ms Sheyanova was not an irrelevant consideration. Ms Sheyanova gave evidence at the First Tribunal Hearing that she went to Russia shortly after her marriage to the Sponsor to take care of her mother because her mother was unwell and that her mother was admitted to hospital from 15 to 28 January 2013. The Tribunal then invited Ms Sheyanova to provide evidence of her mother’s hospitalisation: CB 803 at [6]. Ms Sheyanova subsequently provided the Tribunal with the Hospital Medical Extract Letter: CB 803 at [7]. As a consequence of advice then received by the Tribunal from the DFAT Moscow Post that the Hospital had been contacted and had confirmed, in the Hospital DFAT Letter, that Ms Sheyanova’s mother had not been an inpatient during those dates, the Tribunal notified Ms Sheyanova of that information and invited her to a Second Tribunal Hearing: CB 803 at [8]-[9]. The advice from the DFAT Moscow Post Hospital DFAT Letter obviously gave rise to the issue as to whether the Hospital Medical Extract Letter was a bogus document as defined s.5 of the Migration Act, and it was therefore relevant to the question of whether the requirement s of PIC 4020 had been met.
The Court notes:
a)the High Court in Minister for Aboriginal Affairs & Anor v Peko-Wallsend Ltd & Ors (1986) 162 CLR 24; (1986) 60 ALJR 560; (1986) 66 ALR 299 CLR at pp.40-41 per Mason J articulated the nexus between the exercise of discretion and relevant matters:
In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject-matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard ...
It follows that, in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power ...
b)this Court re-emphasised this principle in SZTBJ v Minister for Immigration & Anor [2015] FCCA 580 at [94] and [95] per Judge Lloyd-Jones:
94. In Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 351 per McHugh, Gummow and Hayne JJ held that a Tribunal would fall into jurisdiction[al] error by “ignoring relevant material or relying on irrelevant material in a way that affects the exercise of the power…”. This was a restatement of the principle expounded by Mason J in Peko-Wallsend Ltd (supra) at 40 that:
Not every consideration that a decision-maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according to law. A factor might be so insignificant that the failure to take it into account could not have materially affected the decision… A similar principle has been enunciated in cases where regard has been had to irrelevant considerations in the making of an administrative decision…
95. For a consideration to be irrelevant, it needs to be established that the decision-maker is forbidden or prohibited by the subject matter, scope or purpose of the relevant legislation from taking the consideration into account in the exercise of a discretionary power. The concept is, in effect, the inverse of the concept of failing to take into account a relevant consideration. The former is prohibited while the latter is mandated: Minister Administering The Crown Lands Act v Illawarra Local Aboriginal Land Council (2009) 168 LGERA 71 per Hodgson JA at [80]. In Ballantyne (supra), Basten JA observed at [113]:
113. In the language of judicial review, “relevant considerations” are mandatory considerations in the sense that any failure to take them into account, in circumstances where they are engaged, will be an error in point of law. A similar principle is reflected in the concept of “irrelevant considerations”. These are factors which are extraneous to the proper exercise of the power, so that to take them into account will also reveal legal error. These two categories do not, however, constitute an exclusive description of matters which may be considered. There will, in very many cases, be a category of legitimate factors, consideration of which is neither mandated or precluded...
The Tribunal was required to determine whether or not Ms Sheyanova was the spouse of the Sponsor at the time of decision pursuant to s.5F of the Migration Act which states:
(1) For the purposes of this Act, a person is the spouse of another person (whether of the same sex or a different sex) 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 a married couple 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.
…
The Hospital Medical Extract Letter was provided to the Tribunal by Ms Sheyanova in support of her claim that she was in a genuine and continuing relationship with the Sponsor, a claim which the Tribunal evidently doubted because of Ms Sheyanova’s departure from Australia after her marriage to the Sponsor: CB 803 at [6], and which was a factual circumstance which plainly may have been relevant to the existence of a genuine and continuing relationship. It was therefore relevant to the Tribunal’s consideration as to whether Ms Sheyanova and her Sponsor fell within the statutory definition of being in a spousal relationship. There was no statutorily implied limitation upon the Tribunal as to what factors it could and could not consider in considering whether Ms Sheyanova was the spouse of the Sponsor which would have precluded the Tribunal from considering the Hospital Medical Extract Letter.
The assertion by the Sheyanovas that because the Sponsor emailed the Delegate in August 2013 confirming that Ms Sheyanova and the Sponsor were in a continual relationship renders irrelevant Ms Sheyanova’s visit to Russia in December 2012 to attend to her mother misses the point. For reasons otherwise set out above, Ms Sheyanova’s return to Russia so soon after the marriage was relevant to the question of whether or not there was a genuine and continuing relationship between Ms Sheyanova and the Sponsor, and once Ms Sheyanova submitted the Hospital Medical Extract Letter in support of the reason she that she went to Russia and in support of the Partner Visa application, the Tribunal was entitled to test the veracity of that document, and having done so, the issue then became whether the document was bogus, which provided a separate and distinct basis for the Sheyanovas not meeting the requirements for the grant of the Partner Visa once the Tribunal determined that the Hospital Medical Extract Letter was bogus.
It follows from the above conclusions that grounds 2, 4 and 6 have not been made out, and that they do not establish jurisdictional error in the Tribunal Decision.
Denial of procedural fairness
Ground of review
Ground 3 of the Judicial Review Application is as follows:
Ground three
The rules of natural justice were violated in connection with the making of the decision by the Second Respondent.
Particulars
(1) The Second Respondent in his decision refers to the letter from the Nahodkinskaya City Hospital as a justification for the conclusion that the Applicant has submitted a bogus document. However, the said letter was provided to the Applicant's migration agent only after the hearing. Before and during the hearing neither Applicant nor her migration agent were aware of the existence of this letter as previously the Tribunal provided the Applicant's migration agent with a written advice (enclosed) that there was no evidence in relation to allegedly bogus document. Consequently, the Applicant did not have enough time and opportunity to provide evidence in response the information in the said letter. If the information on which decision proposed to be based was disclosed timely to the Applicant other evidence could be obtained from Russia in response the allegations.
(2) At the hearing on 20 August 2015, the Second Respondent did not allow the Applicant to consult her migration agent and lawyer when she requested to seek advice.
(3) The Applicant's Migration agent was not given an opportunity to make substantive oral submissions for the Applicant during the hearing despite of the fact that the evidence in regards to the Applicant's mental condition after her being suffered from family violence was provided to the Second respondent.
Sheyanovas’ submissions
In relation to ground 3 the Sheyanovas submitted that:
a)the rules of natural justice were violated in connection with the making of the decision by the Tribunal;
b)they were denied procedural fairness because they were not allowed enough time to present their evidence and be heard in respect of their matter citing WZAPM v Minister for Immigration & Anor [2013] FCCA 266 (“WZAPM”) at [26] per Judge Lucev:
... the applicant was thereby denied the opportunity to put his evidence before the IMR, and to be heard in respect of the case the applicant actually wished to put before the IMR, thereby denying the applicant procedural fairness.
c)the Tribunal Decision refers to the Hospital DFAT Letter as a justification for the conclusion that Ms Sheyanova has submitted a bogus document: CB at 806 at [28];
d)adverse findings of the Tribunal against Ms Sheyanova were based on the Hospital DFAT Letter. However, the Hospital DFAT Letter was provided to Ms Sheyanova's migration agent/solicitor only after the Second Tribunal Hearing;
e)before and during the Second Tribunal Hearing the Sheyanovas’ and their migration agent/solicitor were not aware of the existence of the Hospital DFAT Letter. The Tribunal provided Ms Sheyanova’s migration agent/solicitor with a written advice: CB 690, that there was no evidence in relation to an allegedly bogus document:
The written materials you requested are
Any transcript, record, File Note or an event detail of the telephone conversation between the DIBP Moscow POST and the City Hospital of Nakhodka in relation to Ms Perezhogina's medical treatment
A thorough investigation has been conducted of all written material available to us. The document noted above, which are related to your application for review, have not been provided to us and therefore fall outside the scope of your request to access.
f)the Second Tribunal Hearing was conducted on 20 August 2015: CB 803 at [3]; and on 21 August 2015 the Sheyanovas' migration agent/solicitor submitted a written request to the Tribunal to provide the Hospital DFAT Letter: CB 785. The Hospital DFAT Letter was provided to the Sheyanova’s migration agent/solicitor on 27 August 2015: CB 789;
g)Ms Sheyanova's migration agent/solicitor provided submissions in regard to the alleged bogus document on 4 September 2015: CB 793-798, and the Tribunal Decision was delivered to them on 14 September 2015;
h)consequently, Ms Sheyanova did not have enough time and opportunity to provide evidence in response to substantiate that the information in the Hospital DFAT Letter does not lead to the conclusion that any misleading information or bogus document was provided. If the information on which the Tribunal Decision was proposed to be based was disclosed in a more timely way to Ms Sheyanova other evidence could have been obtained from Russia in response to the allegations;
at the Second Tribunal Hearing, the Tribunal did not allow Ms Sheyanova to consult her migration agent/ solicitor when she requested to seek advice;
j)during the Second Tribunal Hearing, Ms Sheyanova requested to consult her migration agent/solicitor, Mr Kristopher. The Tribunal refused permission and told Ms Sheyanova: “You had four lawyers. I have spent so much time on your matter” (to the best of Ms Sheyanova's recollection): Ms Sheyanova's Affidavit at [13];
k)Ms Sheyanova’s migration agent/solicitor was not given an opportunity to make substantive oral submissions during the Second Tribunal Hearing: Ms Sheyanova's Affidavit at [14]; and
l)the Tribunal failed to take into account Ms Sheyanova's mental condition, namely “poor attention and concentration span”, and being “deeply traumatised triggering development of depression, anxiety and insomnia”: Mental Health Nurse Report at CB 762.
Minister’s submissions
The Minister submitted that Division 5 of Part 5 of the Migration Act is an exhaustive statement of the natural justice hearing rule: Migration Act, s.357A. There is no evidence before the Court, nor is it apparent from the Tribunal Decision, that the Tribunal did not comply with its obligations under Division 5 of Part 5 of the Migration Act.
With respect to the provision of the Hospital DFAT Letter the Minister submitted that:
a)Ms Sheyanova’s claim that she was denied procedural fairness on the basis that the Hospital DFAT Letter was only provided after the Second Tribunal Hearing cannot be viewed in isolation;
b)specifically, the Minister notes that:
i)on 3 July 2015 Ms Sheyanova was invited to comment on or respond to information in a notice sent pursuant to s.359A of the Migration Act: CB 672-674, which advised her of the content of the relevant information, namely, that the DFAT Moscow Post had “received official advice from the hospital that the medical certificate is non-genuine and that Ms Perezhogina was not a patient at the hospital on the mentioned dates.” The Tribunal explained the relevance of this information to be that it suggests Ms Sheyanova provided a bogus document (the Hospital Medical Extract Letter) to the Tribunal, and therefore did not meet PIC 4020;
ii)on 13 July 2015 Ms Sheyanova requested access to written material in relation to “the telephone conversation” between the DFAT Moscow Post and the Hospital:CB 682, which therefore did not include the Hospital DFAT Letter. In a response sent on 22 July 2015, the Tribunal indicated that it did not have any document which fell within the scope of the request made on 13 July 2015: CB 690;
iii)on 21 July 2015 Ms Sheyanova was invited to attend the Second Tribunal Hearing on 20 August 2015, to take further evidence “particularly in relation to Public Interest Criteria PIC 4020 and the waiver of PIC 4020”, and Ms Sheyanova attended the Second Tribunal Hearing: CB 685-687 and 779;
iv)in the 21 July 2015 letter the Tribunal invited Ms Sheyanova to submit any further documents that she wished to rely on by 13 August 2015: CB 687, and Ms Sheyanova took up the opportunity to provide further evidence to the Tribunal prior to the Second Tribunal Hearing: CB 698-778;
v)on 21 August 2015 Ms Sheyanova lodged a specific request for “the letter from the City Hospital of Nakhodka in relation to Ms Peregozhina's medical treatment”: CB 786. The relevant documents, including the Hospital DFAT Letter, were subsequently provided to Ms Sheyanova on 27 August 2015: CB 789;
vi)on 28 August 2015 the Tribunal contacted Ms Sheyanova’s migration agent/solicitor and provided a further 7 days for the Sheyanovas to provide further submissions: Kyranis Affidavit;
vii)on 4 September 2015 Ms Sheyanova provided the Tribunal with further submissions which addressed the Hospital DFAT Letter and the Hospital Medical Extract Letter directly: CB 791-798; and
viii)Ms Sheyanova made no request for additional time; and
c)in the circumstances, Ms Sheyanova has not established that she was denied procedural fairness as a result of “not hav[ing] enough time and opportunity to provide evidence in response the information in the said letter”: Applicant’s Outline of Submissions at [53].
In relation to consultation with Ms Sheyanova and her migration agent/solicitor, the Minister submitted that:
a)Ms Sheyanova contends that the Tribunal denied her the opportunity to consult her migration agent/solicitor during the course of the Second Tribunal Hearing;
b)the Tribunal’s denial of Ms Sheyanova’s request however reveals no jurisdictional error;
c)at CB 804 at [9] the Tribunal Decision outlines the reasons why Ms Sheyanova’s request was denied, namely:
i)Ms Sheyanova gave no reasons as to why she required more time to consult with her migration agent/solicitor;
ii)Ms Sheyanova had a considerable amount of time, prior to the Second Tribunal Hearing, to consult with her migration agent/solicitor; and
iii)the Tribunal had already allowed for one break during the Second Tribunal Hearing to facilitate Ms Sheyanova consulting with her migration agent/solicitor; and
d)in circumstances where the Tribunal demonstrated an actual engagement with Ms Sheyanova’s request and provided reasons as to why the request was denied it has not been established that the Tribunal denied Ms Sheyanova procedural fairness.
In relation to the opportunity given to the migration agent/solicitor to make submissions, the Minister submitted that:
a)Ms Sheyanova contends that her migration agent/solicitor was not given an opportunity to make substantive oral submissions during the Second Tribunal Hearing: Applicant's Outline of Submissions at [56];
b)there is no evidence before the Court to substantiate this claim:
i)there is no reference in the Tribunal Decision to the migration agent/solicitor requesting to put submissions for Ms Sheyanova or the Tribunal’s refusal of same; and
ii)the Tribunal noted that Ms Sheyanova was provided with additional time to comment on the Hospital DFAT Letter: CB 804 at [9]. The migration agent/solicitor provided the Tribunal with written submissions (after the Second Tribunal Hearing) on 4 September 2015: CB 793-798, which the Tribunal referred to and considered: CB 806 at [30];
c)a transcript of the Second Tribunal Hearing confirms that the migration agent/solicitor attended the Second Tribunal Hearing and made oral submissions; and
d)insofar as Ms Sheyanova contends that the Tribunal denied her procedural fairness due to her mental condition (namely, “poor attention and concentration span” and being “deeply traumatised triggering development of depression, anxiety and insomnia”)
: Applicant’s Outline of Submissions at [56], the medical evidence suggested that Ms Sheyanova:
,
i)in September 2014, suffered from psychological impairment with a combination of depression and anxiety and experienced a loss of interest in hobbies and social activities: CB 250-255;
ii)fractured her ribs in January 2014: CB 331;
iii)in July 2014 her thinking was disturbed although her perception and memory were normal: CB 336-338;
iv)in August 2014, Ms Sheyanova suffered from depression, anxiety and insomnia: CB 762; and
v)in July 2014, Ms Sheyanova suffered from depression: CB 774;
e)the medical evidence submitted by Ms Sheyanova did not suggest that she was unable to attend or appropriately participate in a hearing before the Tribunal, and accordingly no breach of s.360 of the Migration Act is revealed: NAXK v Minister for Immigration & Multicultural and Indigenous Affairs (“NAKX”) [2003] FCA 1559 at [6] per Lindgren J; Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75 (“Luck”) at [48]-[49] per Collier, Griffith and Mortimer JJ.
The Minister submitted that ground 3 revealed no jurisdictional error in the Tribunal Decision.
Consideration – procedural fairness
Ms Sheyanova’s contention is that she was denied procedural fairness in relation to the Second Tribunal Hearing because she was not provided with the Hospital DFAT Letter prior to the Second Tribunal Hearing, she was not allowed to consult her migration agent Mr Kristopher during the Second Tribunal Hearing, and Mr Kristopher was not allowed to make oral submissions during the Second Tribunal Hearing.
The Court notes there are generally two sources of the duty to comply with the rules of procedural fairness:
a)at common law, procedural fairness is concerned with the avoidance of any practical injustice: Minister for Immigration Multicultural Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 (2003) 77 ALJR 699; (2003) 195 ALR 502; (2003) 72 ALD 613 at [37] per Gleeson J, and requires that, the decision-maker “bring to a person's attention the critical issue or factor on which the administrative decision is likely to turn”: Kioa v West (1985) 159 CLR 550; (1985) 60 ALJR 113; (1985) 62 ALR 321 (“Kioa”) CLR at 587 per Mason J, and that a “… person whose interests are likely to be affected by an exercise of power must be given an opportunity to deal with relevant matters adverse to his interests”: Kioa CLR at 628 per Brennan J; and
b)the statutory provision which sets out the concept of procedural fairness, otherwise known as the “natural justice hearing rule”, in Division 5 of Part 5 of the Migration Act which contains an exhaustive statement of the natural justice hearing rule in s.357A of the Migration Act which states:
(1) This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.
(2) Sections 375, 375A and 376 and Division 8A, in so far as they relate to this Division, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with.
(3) In applying this Division, the Tribunal must act in a way that is fair and just.
In the context of this case where the issue relates to the adverse information contained in the Hospital DFAT Letter, s.359A of the Migration Act places further obligations on the Tribunal, and relevantly provides as follows:
(1) Subject to subsections (2) and (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
(2) The information and invitation must be given to the applicant:
(a) except where paragraph (b) applies—by one of the methods specified in section 379A; or
(b) if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.
A failure to comply with s.359A of the Migration Act will generally result in jurisdictional error: SAAP & Anor v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2005] HCA 24; (2005) 228 CLR 294; (2005) 79 ALJR 1009; (2005) 215 ALR 162; (2005) 83 ALD 545, at [77] per McHugh J.
The Court notes:
a)the Tribunal sent a letter to the Sheyanovas’ on 3 July 2015 inviting them to comment on or respond to information (“Tribunal July 2015 Letter”): CB 673-674. The Tribunal July 2015 Letter set out the information received from the DFAT Moscow Post, namely, that they had contacted the Hospital and received official advice that the Hospital Medical Extract Letter was non-genuine and Ms Sheyanova’s mother was not in the Hospital on the dates set out in the Hospital Medical Extract Letter. The Tribunal July 2015 Letter explained the relevance of the information received from the DFAT Moscow Post and indicated that it suggested that Ms Sheyanova has provided false information and that it did not support the claim that Ms Sheyanova had returned to Russia after her wedding because her mother was ill and hospitalised. The Tribunal July 2015 Letter further stated that this information would, subject to any comments made by the Sheyanovas, lead the Tribunal to consider Ms Sheyanova’s evidence as not credible and that the evidence that there was a genuine spouse relationship with the Sponsor was not truthful, and further that Ms Sheyanova had supplied a “bogus document” to the Tribunal and therefore did not meet PIC 4020. The Tribunal further said that the consequence of the Tribunal relying on Hospital DFAT Letter would be that it would affirm the Delegate’s Decision to refuse the Partner Visas. The final section of the Tribunal Letter referred to the Sheyanovas’ providing comments by way of writing and gave a date for this to be completed, with the option of also seeking an extension of time if required;
b)on 13 July 2015 Mr Kristopher sent the Tribunal a Registered Migration Agent Notice and Request for Access to written material: CB 680-683, and in particular:
d)however, Ms Sheyanova sought to establish “non-judiciary” determined claim of family violence which affected the relationship and due to which her relationship with the Sponsor ceased, as she was a victim of family violence committed by the Sponsor continuously from April 2013 till January 2014: CB 732 at [28]. The family violence included frequent rape, physical assaults, including causing bilateral rib fracture, blackmailing, emotional and financial abuse: CB 278-280;
e)the Delegate refused to assess Ms Sheyanova’s family violence claim observing at CB 204 as follows:
I note that you claim to have been the victim of family violence. However, I have not assessed your family violence claims as I am required to first consider if you were the spouse or de facto partner of the sponsor (as defined under sections 5F and 5CB of the Act, respectively) prior to the relationship ceasing.
f)this conclusion is in direct contradiction with the requirements of reg.1.23(10) of the Migration Regulations:
(10) If an application for a visa includes a non-judicially determined claim of family violence:
(a) the Minister must consider whether the alleged victim has suffered relevant family violence; and
(b) if the Minister is satisfied that the alleged victim has suffered the relevant family violence, the Minister must consider the application on that basis; and
(c) if the Minister is not satisfied that the alleged victim has suffered the relevant family violence:
(i) the Minister must seek the opinion of an independent expert about whether the alleged victim has suffered the relevant family violence; and
(ii) the Minister must take an independent expert's opinion on the matter to be correct for the purposes of deciding whether the alleged victim satisfies a prescribed criterion for a visa that requires the applicant for the visa, or another person mentioned in the criterion, to have suffered family violence.
g)Australian family violence provisions in immigration law were introduced to ensure compliance with human rights law and International Conventions: 1 ALRC 69, Equality Before The Law: Justice For Women paragraph 10.14. Regulation 1.23 of Migration Regulations corresponds to Australian international obligations to prevent violence against women;
h)the Tribunal’s failure to assess Ms Sheyanova's family violence claim constitutes abuse of power as it constitutes not only failure to comply with requirements of the Migration Regulations but a negation of fundamental human rights;
in Plaintiff S157/2002 v The Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 CLR at [30] per Gleeson CJ, it was that:
Secondly, courts do not impute to the legislature an intention to abrogate or curtail fundamental rights or freedoms unless such an intention is clearly manifested by unmistakable and unambiguous language.
j)specifically, by denying Ms Sheyanova assessment of her family violence claim, the Tribunal breached Ms Sheyanova’s rights in the following way:
i)by making the decision to refuse the Partner Visa without assessing the family violence claim the Tribunal failed to recognise the requirements of Article 4 of the United Nations Declaration on the Elimination of Violence against Women, namely to condemn violence against women and to exercise due diligence to prevent and investigate the acts of violence. Ms Sheyanova was denied access to mechanisms of justice and her physical and psychological rehabilitation was not promoted as required by Article 4 of that Declaration;
ii)Ms Sheyanova was deprived of basic human rights, provided by Articles 7 and 8 of the International Covenant on Civil and Political Rights (“ICCPR”). Ms Sheyanova was put in a position of being forced to tolerate severe family violence for many months. The frequency, character and continuousness of the family violence suffered by Ms Sheyanova is such that it equates to torture and sexual slavery; and
iii)the Tribunal failed to comply with the part 4 of Article 24 of the ICCPR because the Sponsor was able to use the immigration legislation and system to practice violence on Ms Sheyanova and his behaviour was encouraged by the Tribunal’s Decision. This indicates a failure to “ensure equality of rights and responsibilities of spouses to marriage”.
In relation to ground 5, the Sheyanovas submitted that:
a)the Tribunal Decision was not authorised by the enactment in pursuance of which it was purported to be made;
b)the Tribunal made a jurisdictional error by refusing to assess Ms Sheyanova' s family violence claim. In Sok v Minister for Immigration & Citizenship & Anor [2008] HCA 50; (2008) 238 CLR 251; (2008) 83 ALJR 25; (2008) 249 ALR 651; (2008) 104 ALD 464 the Court concluded that a failure by the Tribunal to conduct the review which the appellant had sought in accordance with the requirements of the Migration Act constituted jurisdictional error. Thus, the assessment of a family violence claim is compulsory under reg.1.23(10) of the Migration Regulations;
c)Ms Sheyanova made her claim of family violence on 25 October 2014: CB 232-355, and provided full and substantial evidence as per the requirements of reg.1.24 of the Migration Regulations which says as follows:
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.
d)Ms Sheyanova provided all evidence required by the Schedule 1 of the Specification of Evidentiary Requirements, Legislative Instrument IMMI 12/116, namely, the following evidence:
i)the Statutory Declaration for Family Violence Claim (Form 1410): CB 277-283;
ii)incident report by Western Australia Police: CB 284-290;
iii)letter from Emergency Department of Royal Perth Hospital dated 20 January 2014: CB 772;
iv)letter from Emergency Department of Royal Perth Hospital dated 22 January 2014: CB 773;
v)GP Mental health care plan dated 4 July 2014: CB 336-339;
vi)letter from Zonta House Women's Refugee dated 19 August 2014: CB 327;
vii)letter from the Domestic Violence Advocate dated 8 April 2014: CB 329;
viii)Mental Health Nurse Report attached to the Statutory Declaration dated 7 August 2014: CB 759-762;
ix)psychological Report on Yulia Sheyanova dated 18 September 2014: CB 250-255; and
x)Letter from the Mental Health Nurse dated 11 July: CB 774;
e)the Tribunal refused the Partner Visa application without assessing Ms Sheyanova’s claim of family violence at all;
f)the Tribunal noted Ms Sheyanova’s claim that she was a victim of family violence: CB 804 at [10]. However, the Tribunal decided to determine the matter solely on the basis of PIC 4020: CB 804 at [10]; and
g)the Tribunal made a jurisdictional error in the way it decided Ms Sheyanova’s matter as it violated the provisions of reg1.23(10) of the Migration Regulations, namely that “the Minister must consider whether the alleged victim has suffered relevant family violence”. The wording of reg.1.23 is imperative (“must consider”) and the law does not allow any exemptions not to consider a family violence claim by a Partner Visa applicant.
In relation to ground 7, the Sheyanovas submitted that:
a)the making of the decision by the Delegate and the Tribunal was an improper exercise of the power, namely failing to take a relevant consideration into account;
b)the Tribunal is obliged under s.414 of the Migration Act to consider all the claims of an applicant, otherwise it fails to complete the exercise of the jurisdiction embarked on: Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136; (2001) 194 ALR 244;
c)in Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088; (2003) 197 ALR 389; (2003) 73 ALD 321 at [95] per Hayne J it was said that a failure to address a substantial part of the matters put forward by the appellant in support of his contention was said to amount to a failure to accord procedural fairness;
d)the Tribunal failed to consider substantial evidence and submissions provided in support of Ms Sheyanova's claim that she had a genuine and continuous marital relationship with the Sponsor; and
e)the Tribunal failed to consider Ms Sheyanova’s claim that she was subject to severe family violence from April 2013 till January 2014 and the evidence in support of that claim including evidence of the Sponsor’s criminal charges in the Magistrates Court of Western Australia.
Minister’s submissions
The Minister submitted that:
a)the Sheyanovas contend that the Tribunal erred in failing to assess Ms Sheyanova’s claims to have suffered family violence;
b)contrary to the submissions of Ms Sheyanova, the Tribunal was not required to consider whether Ms Sheyanova met the requirements of cl.801.221 of Schedule 2, or reg.1.23 of the Migration Regulations. Regulation 1.23 of the Migration Regulations provides for when a person is taken to have suffered family violence for the purpose of the Migration Regulations: see reg.1.22(1) Migration Regulations) and thereby whether a person has suffered the claimed family violence;
c)the Tribunal affirmed the Delegate’s Decision on the basis that Ms Sheyanova did not satisfy PIC 4020 for the purpose of cl.801.226 of the Migration Regulations: CB 808 at [39]. The Tribunal’s finding that Ms Sheyanova did not satisfy that criterion necessarily meant that the Partner Visa application could not succeed, and in those circumstances, the Tribunal was not required to go on and consider whether the additional criteria (namely cl.801.221 of Schedule 2 to the Migration Regulations) for the grant of the Partner Visa had been satisfied: Woo v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1596 at [32] per Sackville J; and
d)furthermore, insofar as Ms Sheyanova contends in ground 1 that the Tribunal breached Australia's international obligations to prevent violence against women the Tribunal was not required to assess Ms Sheyanova’s claims to have suffered family violence, which international obligations Ms Sheyanova did not claim at any point should have been considered on review by the Tribunal.
Consideration – family violence
The primary criteria for the grant of a Partner Visa is set out in cl.801.22 of Sch.2 to the Migration Regulations and in relation to a claim of family violence, cl.801.221 relevantly provides that at the time of decision the criteria to be satisfied is that:
(1) The applicant meets the requirements of subclause (2), (2A), (3), (4), (5), (6) or (8).
…
(6) 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;
Clause 801.22(6) of the Sch.2 to the Migration Regulations refers back to sub-cl.(2) and (2A) of that clause which relevantly provide that:
(2) An applicant meets the requirements of this subclause if:
(a) the applicant is the holder of a Subclass 820 visa; and
(b) the applicant continues to be sponsored for the grant of the Subclass 820 (Partner) visa by:
(i) the sponsoring partner; or
(ii) the Australian citizen, Australian permanent resident or eligible New Zealand citizen who sponsored the applicant for that visa; and
(c) the applicant is the spouse or de facto partner of the sponsoring partner; and
(d) subject to subclauses (6A) and (7), at least 2 years have passed since the application was made.
(2A) An applicant meets the requirements of this subclause if:
(a) the applicant is the holder of a Subclass 820 (Partner) 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 (6A) and (7), at least 2 years have passed since the Minister made the decision mentioned in paragraph (a).
In the Tribunal Decision the Tribunal:
a)set out the basis for the refusal not to grant the Partner Visas by the Delegate being that Ms Sheyanova did not satisfy the requirements of cl.801.221 of the Migration Regulations because the Delegate was not satisfied that Ms Sheyanova was the spouse of the Sponsor: CB 803 at [2];
b)stated that the First Tribunal Hearing was concerned with the basis of the Delegate’s refusal and referred to the receipt of evidence from Ms Sheyanova as to whether she was the spouse of the Sponsor: CB 803 at [6];
c)noted concerns with regard to the evidence given by Ms Sheyanova that she had returned to Russia shortly after the marriage to the Sponsor, and her claim that she was a victim of family violence contrary to the Sponsor’s claim: CB 804 at [10];
d)identified two issues:
i)first, whether Ms Sheyanova was the spouse of the Sponsor and met the criteria for the Partner Visa: CB 804 at [10]; and
ii)second, whether Ms Sheyanova met PIC 4020 as required by cl.801.226 of the Migration Regulations for the grant of the Partner Visa: CB 804 at [11];
e)found that Ms Sheyanova did not satisfy PIC 4020 for the purposes of cl.801.226 of the Migration Regulations and therefore affirmed the Delegate’s Decision not to grant the Partner Visa: CB 808 at [39]-[40].
The Sheyanovas were on notice from the Delegate’s Decision that the issue before the delegate was that Ms Sheyanova was not considered to be the spouse of the Sponsor prior to 13 January 2013, which was the date Ms Sheyanova claimed the relationship ended due to family violence by the Sponsor.
The First Tribunal Hearing was concerned with the issue raised by the Delegate that Ms Sheyanova was not the spouse of the Sponsor and accordingly the Tribunal received evidence from Ms Sheyanova in that regard: CB 803 at [6], and it was during this First Tribunal Hearing that Ms Sheyanova provided evidence that she returned to Russia because her mother was unwell and has been hospitalised, and as a consequence the Tribunal invited Ms Sheyanova to provide evidence showing that her mother was hospitalised. The Tribunal received the Hospital Medical Extract Letter indicating that Ms Sheyanova’s mother was an inpatient at the Hospital from 15 January 2013 to 28 January 2013: CB 585. Subsequently, the Tribunal received advice from the DFAT Moscow Post that they had contacted the Hospital and were advised that Ms Sheyanova’s mother was not an inpatient at the Hospital from 15 to 28 January 2013: CB 669. As a result of this advice the Tribunal advised Ms Sheyanova of the information it had received and invited Ms Sheyanova to the Second Tribunal Hearing for the purpose of taking evidence in relation to PIC 4020 of the Migration Regulations: CB803-804 at [8]-[9].
The issue identified before the Tribunal at the Second Tribunal Hearing was in relation to cl.801.226 of the Migration Regulations which states that:
The applicant satisfies public interest criteria 4020 and 4021.
Further, PIC 4020(1) of the Migration Regulations provides that:
(1) There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal during the review of a Part 5- reviewable decision, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:
(a) the application for the visa; or
(b) a visa that the applicant held in the period of 12 months before the application was made.
It is the Court’s view that the Tribunal correctly applied cl.801.226 of the Migration Regulations as a primary criteria to be satisfied at the time of the decision based on the findings it made in relation to the Hospital Letter. The Tribunal’s finding that Ms Sheyanova did not satisfy PIC 4020 for the purposes of satisfying cl.801.226 of the Migration Regulations at the time of the decision was sufficient to affirm the decision not to grant the Sheyanovas Partner Visas. The Tribunal was not required to make other findings in relation to the other primary criteria relevant to a grant of a Subclass 801 partner visa, including the criteria in cl.801.221(6) relevant to a claim of family violence.
The Court notes that, as submitted by the Minister, the Federal Court addressed the obligation of the Tribunal in relation to visa applicants satisfying multiple criteria in Woo v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1596 at [32] per Sackville J:
32. The first submission assumed that the MRT is under an obligation to make findings in relation to all criteria that an applicant must satisfy in order to be granted an EE visa. This assumption is incorrect. The MRT found that the applicant failed to satisfy two essential criteria, namely those specified in Migration Regulations, Sched 2, cll 820.211(2)(a) and 820.221(1)(a). Having reached that conclusion, it was not required to consider whether or not the applicant satisfied other criteria that also had to be met if he was to be granted an EE visa.
The Tribunal’s obligations with regard to family violence claims were specifically addressed by the Federal Court in Kaur v Minister for Immigration & Border Protection [2014] FCA 1251 at [43]-[44] per Murphy J stated:
43. 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 consider that the Tribunal was not obliged to consider the issue of family violence: see Alsalem at [17]; Yang v Minister for Immigration and Border Protection and Another [2014] FCCA 20 at [28]–[36]; Guven v Minister for Immigration and Multicultural and Indigenous Affairs and Another [2006] FMCA 311 at [24]–[25]; Collins v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FMCA 571 at [42].
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.
This Court in Kaur v Minister for Immigration & Anor [2014] FCCA 1282 at [33]-[35] and [37] per Judge Lucev observed that:
33. Although not expressly put in this way by the applicant, ground 3 appears to assert that there may have been a jurisdictional error by the Tribunal because it failed to consider whether the applicant had suffered family violence. In Alsalem v Minister for Immigration & Anor [2013] FCCA 1407 (“Alsalem”) this Court had to consider the same issue family violence) in circumstances where a husband was alleging that his marital relationship with his ex-wife was genuine. In Alsalem the Court said as follows:
16. In his (further) amended application the applicant alleged:
1. My relationship with my ex-wife was genuine, the MRT failed to accept the family violence .
2. The MRT failed to consider the issue of domestic violence, failed to refer my case to independent expert.
3. The MRT acted contrary to domestic violence provisions.
17. A large part of the application and the applicant’s submissions at the hearing of this matter turned on the absence from the Tribunal’s reasons of any reference to the applicant’s allegation that he had been a victim of domestic violence at the hands of his former wife, the sponsor. However, in the circumstances, the Tribunal was not required to consider that issue. The issue of domestic violence, or family violence as it is termed in the Regulations, will only arise for consideration if the Tribunal considers that the parties to a spousal relationship were in a genuine relationship at the time one of them made an application for a spouse visa. This is apparent from the terms of cl.820.221(3) of sch.2 to the Regulations ...
It will be noted that that provision refers to cl.820.211 which is a criterion that must be satisfied at the time a visa application is lodged, ...
18. The Tribunal concluded that the applicant and his then-wife had had no mutual commitment to each other to the exclusion of all others and, implicitly, that this had been so from the outset of the marriage. The Tribunal made that conclusion more explicit by finding that the applicant did not meet the requirements of cl.820.211(2)(a). As the Tribunal found that the applicant was not, at the time of the application, the spouse of an Australian citizen in a manner recognised by the Act, there was no need for it to consider whether cl.820.221(3) applied to his circumstances.
19. The remaining question therefore is whether the Tribunal erred in concluding that the applicant’s marriage did not satisfy the requirements of the Regulations.
20. The applicant’s allegation “my relationship with my ex-wife was genuine” reflects the concern stressed in his address to the Court that he had been serious about the marriage and that, had it been up to him, it would have continued. However, that is not the test. Under the Act, to be spouses, the two persons in question must have a mutual commitment to a shared life as husband and wife to the exclusion of all others. The Tribunal found, as was open on the evidence, that the applicant’s former wife lacked such a commitment and that the relationship was neither genuine nor continuing, noting that, even on the applicant’s version of events, the relationship had broken down before the visa application was lodged. Regardless of the applicant’s attitude to the marriage, if his then wife had not been committed to it, the mutual commitment required by the Act was not present.
Alsalem at paras.16-20 per Judge Cameron. The Court notes that cl.820.221(3) of Schedule 2 to the Migration Regulations as set out in paragraph 29 above is relevantly in the same terms as it was in Alsalem.
34. The passages cited in Alsalem not only make the point that the Tribunal is only obliged to consider the issue of family violence if it is has found that the parties were in a genuine spousal relationship, but also the point that it is for the Tribunal on the evidence to determine whether or not there was the mutual commitment required for the relevant spousal relationship under the Migration Act.
35. In this case the Tribunal was not satisfied, principally it appears because of lack of evidence, that the applicant and sponsor were in a genuine spousal relationship at the time of the Temporary Partner Visa application. In the circumstances, the Tribunal was not, therefore, obliged to consider the issue of family violence. The Court, and its predecessor the Federal Magistrates Court, have, in respect of other types of partner and spouse visas determined that it is unnecessary to consider the issue of family or domestic violence where the Tribunal has already determined that the parties do not in fact live in a genuine spousal relationship: see, for example, Yang & Anor v Minister for Immigration & Anor [2014] FCCA 20 at paras.28-36 per Judge Lucev ; Collins v Minister for Immigration [2003] FMCA 571 at para.42 per McInnes FM; Guven v Minister for Immigration & Anor [2006] FMCA 311 at para.22 per Hartnett FM.
37. By applying the definition of ‘spouse’ in s.5F of the Migration Act, and, in particular, by having regard to the conditions in s.5F(2) and (3) of the Migration Act for the determination of whether or not persons are in a spousal relationship and the matters set out in reg.1.15A(3) of the Migration Regulations in order to determine if the applicant met the definition of a ‘spouse’ for the purposes of meeting the requirements for a Temporary Partner Visa under cl.820.211 of Schedule 2 to the Migration Regulations, the Tribunal had regard to the correct legal test and relevant considerations in order to assist it to determine the determinative factual issues in this case. By not having regard to the family violence issues raised by the applicant the Tribunal did not fail to have regard for a relevant consideration, but rather it properly disregarded an irrelevant consideration. In these circumstances, and for the reasons explained in relation to the individual grounds above, no jurisdictional error was made out by the applicant.
The Court notes that the above decisions are binding on this Court: Suh & Ors v Minister for Immigration & Citizenship & Anor [2009] FCAFC 42; (2009) 175 FCR 515; (2009) 108 ALD 470 at [29] per Spender, Buchanan and Perram JJ.
The requirements of reg.1.23 of the Migration Regulations are therefore irrelevant as the Tribunal was not required to address the claim of family violence as it found that cl.801.226 had not been met by Ms Sheyanova. For the same reasons the question of Australia’s international obligations does not arise: Minister for Immigration & Citizenship v MZYYL [2012] FCAFC 147.
Grounds 1, 5 and 7 have not been made out, and do not establish jurisdiction error in the Tribunal Decision.
Conclusion and orders
The Court has concluded that none of the grounds of the Judicial Review Application have been made out. It follows that Judicial Review Application must be dismissed. There will be an order accordingly.
There will also be an order that the name of the Minister be amended to read “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
The Court will hear the parties as to costs.
I certify that the preceding seventy-four (74) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Date: 13 September 2019
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