SHRESTHA v Minister for Immigration

[2016] FCCA 303

FEDERAL CIRCUIT COURT OF AUSTRALIA

SHRESTHA v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 303

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Partner (Residence) (Class BS) visa – whether the applicant was an effective spouse of the sponsoring partner – whether the Tribunal erred in finding that the applicant and the sponsor were not in a genuine spousal relationship – whether the Tribunal erred in making an adverse credit finding against the applicant – no jurisdictional error identified – application dismissed.

Legislation:

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

Migration Regulations 1994, regs.1.15A, 1.23, 1.24, 1.25(2)(a); cl.801.221(2)(c)

Applicant: AMIT SHRESTHA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2683 of 2015

Judgment of: Judge Street

Hearing date: 16 February 2016

Date of Last Submission: 16 February 2016

Delivered at: Sydney

Delivered on: 16 February 2016

REPRESENTATION

Solicitors for the Applicant: Mr M Nair
MS Nair & Co

Solicitors for the First Respondent: Ms B Rayment
Mills Oakley Lawyers

ORDERS

1. The application is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the amount of $5800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2683 of 2015

AMIT SHRESTHA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Tribunal made on 1 September 2015 affirming a decision of the delegate not to grant the applicant a Partner (Residence) (Class BS) visa. The applicant is a national of Nepal and entered Australia as the holder of a student visa. The applicant lodged an application for a partner visa on 5 October 2010, which was sponsored by his then wife, to whom he was married on 11 January 2010.

2. It was the primary criteria at the time a decision for the grant of a subclass BS visa that the applicant was a spouse of the sponsor under cl.801.221(2)(c) of the Migration Regulations 1994. A person is the spouse of another person if the two persons are in a married relationship as defined by s.5(f). In determining whether there is a married relationship, the decision-maker must take into account the matters identified in reg.1.15A.

3. Subclause 820.221(6) allows the applicant to meet the requirements of cl.801.221 if, amongst other things, he or she would have met the requirements of cl.801.221(2) except that the relationship between the applicant and the sponsoring partner has ceased because the applicant has suffered family violence committed by the sponsoring partner.  The Tribunal found at the time of hearing that it was not satisfied that the partners jointly owned any assets or had any joint liabilities.  

4. The Tribunal was not satisfied at the time of hearing that the parties maintained a joint household.  The Tribunal was not satisfied that at the time of the decision friends and acquaintances believed the relationship was genuine and ongoing.  The Tribunal was not satisfied at the time of hearing that the parties undertake joint social activities.  The Tribunal was not satisfied at the time of hearing that the parties had a commitment to each other. The Tribunal was not satisfied at the time of hearing that the applicant and sponsor had a mutual commitment to a shared life to the exclusion of others. The Tribunal was not satisfied that the relationship between the applicant and the sponsor at the time of hearing was genuine and continuing. 

5. The Tribunal was not satisfied that the parties lived together or not separately and apart on a permanent basis at the time of hearing. Given those findings, the Tribunal found it was not satisfied that at the time of the decision the parties were in a spousal relationship, and, therefore, the applicant did not meet the requirements of cl.801.221(2)(c). The Tribunal identified that in post-hearing submissions, the applicant stated that he suffered family violence and provided a statutory declaration in support of that claim.

6. The Tribunal expressed concerns in relation to the applicant’s credibility and the truthfulness of the claim, given its timing.  The Tribunal noted that there was no suggestion the applicant had sought any professional help in relation to the claimed family violence until after his attendance before the Tribunal.  It was in those circumstances the Tribunal formed the view that the claim of family violence had been made solely to enable the applicant to retain the partner visa. 

7. The grounds of the application are as follows:

   The grounds of the Application are:

   (Each of the grounds is an independent ground for judicial review.)

   The ground of application:

   The ground of application is that the second respondent failed to consider the issue of family violence as an exception to the marital relationship coming to an end even though there was evidence before the tribunal to consider that issue and in failing to do so the second respondent committed jurisdictional error.

   Particulars:

   Even though there were three (3) statutory declarations namely those of:

   (a) the review applicant;

   (b) the Psychologist who had seen and provided her findings in the form of her statutory declaration; and

   (c) Dr Thomas Springer who was the review applicant's doctor and who had also provided a statutory declaration to the effect that the applicant had suffered psychological harm, the tribunal dismissed such evidence after only a cursory observation but failed to consider and make a finding that the evidence was sufficient to satisfy the requirements of family violence as meeting the exception to the requirement that the marital relationship was continuing as at the date of the decision. The term “violence” encompasses psychological or emotional violence: Sok v Minister for Immigration and Indigenous Affairs (2005) FCAFC 56 (11 April 2005).

8. In relation to the documents provided, the Tribunal found that the declaration failed to refer to the family violence and conduct that caused the applicant to reasonably fear or to be reasonably apprehensive about his safety and wellbeing. The statutory declaration for the family violence, form 1410, nowhere identified or set out the allegations in compliance with reg.1.25(2)(a) of the Migration Regulations 1994.  It was open to the Tribunal to find that the requirements of reg.1.24 were not made out and that the applicant had not presented evidence in accordance with the requirements of reg.1.24 as identified under reg.1.23(9)(c). 

9. The Tribunal identified that it was not satisfied that the evidence presented by the applicant accords with the statutory requirements relating to family violence and found that the evidence was inadequate to enable a finding that the applicant raised claims of having suffered family violence.  Those findings were clearly open on the evidence before the Tribunal.  Mr Nair, solicitor for the applicant, endeavoured to suggest that the communications between the applicant and his wife post the cessation of their relationship could somehow be construed to support the existence of emotional harm or psychological harm. 

10. That contention is nothing more than a challenge to the findings of fact that it was open to the Tribunal to make.  It should be said in that regard that there is nothing in those communications individually or read collectively that would support the existence of any family violence or emotional harm or psychological harm to enliven the work done by reg.1.23(10).  Mr Nair contended that the Tribunal should have engaged in the cascading process of a determination of family violence in accordance with reg.1.23(10) and that the failure to do so was a jurisdictional error. 

11. In the circumstances of the present case, it was open to the Tribunal to conclude that the requirements of reg.1.23(9)(c) were not met, and, in those circumstances, there is no substance in the alleged jurisdictional error raised by the application.  I also accept the submission of the first respondent that the conduct alleged to give rise to family violence by the applicant in the present case all arose after the cessation of the relationship, and this would give rise to an intractable difficulty for the applicant in respect of any family violence contention by reason of reg.1.23(12). 

12. I reject the contention that the Tribunal failed to deal with the issue of family violence, as it is clear that the Tribunal’s reasons considered whether or not the statutory criteria had been met.  No jurisdictional error of the kind alleged in the application is made out.  The application is dismissed.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 18 February 2016