SINGH v Minister for Immigration

[2017] FCCA 2470

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2470

Catchwords:
MIGRATION – Application for BS Partner (Residence) visa – relationship with sponsoring partner ceased – applicant claimed to have suffered family violence by his father-in-law – family violence was not instigated at the request of sponsoring partner – unreasonable exercise of power to make regulations conferred by the Act – whether illogical to limit “family violence” qualification to instances where violence was committed by the sponsoring partner – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.4, 31, 65, 504

Migration Regulations 1994 (Cth), regs.1.21, 1.23, 2.01, 2.02, 2.03, sch.1, cl.801.221 of sch.2
Social Security Act 1991 (Cth), s.7

Cases cited:

Attorney-General (SA) v Corporation of the City of Adelaide (2013) 249 CLR 1; [2013] HCA 3

McCloy v New South Wales (2015) 257 CLR 178; [2015] HCA 34

Murphy v Electoral Commissioner (2016) 90 ALJR 1027; [2016] HCA 36

Slattery v Naylor (1883) 13 App Cas 446

South Australia v Tanner (1989) 166 CLR 161; [1989] HCA 3
Williams v Melbourne Corp (1933) 49 CLR 142; [1993] HCA 56
Yu v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 140 FCR 126; [2004] FCA 1477

Applicant: VIKRAM SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3096 of 2016

Judgment of: Judge Smith

Hearing date: 11 October 2017

Date of Last Submission: 11 October 2017

Delivered at: Sydney

Delivered on: 2 November 2017

REPRESENTATION

Counsel for the Applicant: Mr O Jones

Solicitors for the Applicant: Parish Patience Immigration Services

Counsel for the Respondents: Mr P Knowles

Solicitors for the Respondents: HWL Ebsworth Lawyers

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3096 of 2016

VIKRAM SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The criteria for the granting of spouse visas are found in sch.2 to the Migration Regulations 1994 (Cth) (Regulations). In the ordinary course, an applicant for a permanent spouse visa must be the spouse or de facto partner of an Australian citizen, Australian permanent resident or eligible New Zealand citizen[1] and be sponsored by that spouse or de facto partner. There are, however, exceptions to that requirement including where the applicant has suffered family violence committed by the sponsoring partner[2].

   [1] A New Zealand citizen who is a protected SCV (special category visa) holder within the meaning of s.7 of the Social Security Act 1991 (Cth).

   [2] See sub-cll.801.221(6)(b), (c) of the Regulations.

2. The applicant in these proceedings applied for a permanent spouse visa on the basis of his relationship with his spouse, an Australia citizen. After that relationship ended, he claimed that he had suffered family violence committed by his father-in-law. The applicant was refused the visa by a delegate of the Minister because he had not established that he had suffered family violence committed by his sponsoring partner. On review, the Administrative Appeals Tribunal (Tribunal) affirmed the delegate’s decision for the same reason.

3. The applicant contends that the requirement in the Regulations that the family violence must have been committed by the sponsoring partner is invalid because it is unreasonable or lacks proportionality.

4. The applicant did not contend that there was any practical difference between “unreasonableness” and lack of “proportionality” for present purposes. In McCloy v New South Wales (2015) 257 CLR 178; [2015] HCA 34 (French CJ, Kiefel, Bell and Keane JJ) (McCloy), their Honours explained at [3]:

   … The term “proportionality” in Australian law describes a class of criteria which have been developed by this Court over many years to determine whether legislative or administrative acts are within the constitutional or legislative grant of power under which they purport to be done. …

5. “Proportionality” is most often used[3] as an heuristic tool in the context of a challenge to a legislative restriction on a right or freedom. The context here is different, there being no right or freedom affected by the setting of criteria for the grant of a visa. A non-citizen has no right to enter or stay in Australia prior to the grant of a visa. For that reason, although the ultimate question of the scope of a particular power is the same, the question of proportionality here is different to those applied, for instance, in cases such as McCloy and Brown v Tasmania [2017] HCA 43 involving the implied freedom of political communication.

   [3] Not without some criticism in Australia: see McCloy at [141]-[152] (Gageler J); Murphy v Electoral Commissioner (2016) 90 ALJR 1027 at [101]; [2016] HCA 36 (Gageler J).

6. The test for unreasonableness in this context has a high threshold. Attorney-General (SA) v Corporation of the City of Adelaide (2013) 249 CLR 1; [2013] HCA 3, French CJ explained the test at [48] and [51]:

   48A high threshold test for unreasonableness invalidating delegated legislation was set by the Privy Council in Slattery v Naylor. Their Lordships spoke of a “merely fantastic and capricious bye-law, such as reasonable men could not make in good faith”. That criterion did not invite judicial merits review of delegated legislation. Nor has unreasonableness ever been so regarded in this Court. As their Lordships said, a by-law would not be treated as unreasonable “merely because it does not contain qualifications which commend themselves to the minds of judges”. In Kruse v Johnson, Lord Russell CJ accorded a particular respect to the authority conferred on public representative bodies in making delegated legislation which would not necessarily inform consideration of validity today. However, he did not exclude from review by-laws “partial and unequal in their operation” or “manifestly unjust” or involving “such oppressive or gratuitous interference with the rights of those subject to them as could find no justification in the minds of reasonable men”.

   …

   51In Brunswick Corporation v Stewart Starke J adopted the language of the Privy Council in Slattery in distinguishing between a “drastic” provision and one which was “so capricious and oppressive that no reasonable mind can justify it”. Williams J in the same case adopted the language of Lord Russell CJ in Kruse v Johnson, equating unreasonableness in a by-law with “such oppressive or gratuitous interference with the rights of those who are subject to it as could find no justification in the minds of reasonable men”.

7. In Yu v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 140 FCR 126; [2004] FCA 1477 Kiefel J (as her Honour then was) said:

   [40]In South Australia v Tanner (1989) 166 CLR 161 at 165, the majority accepted the proportionality tests of validity propounded by Deane J in Commonwealth v Tasmania (Tasmanian Dam case) (1983) 158 CLR 1 and by Dixon J in Williams v Melbourne Corp (1933) 49 CLR 142, which were respectively “whether the regulation is capable of being considered to be reasonably proportionate to the pursuit of the enabling purpose” and “in substance, whether the regulation goes beyond any restraint which could be reasonably adopted for the prescribed purpose”.

   [41]In Minister for Resources v Dover Fisheries Pty Ltd (1993) 43 FCR 565 Gummow J took the majority in South Australia v Tanner to apply the test as elaborated upon by Dixon J in Shanahan v Scott (1957) 96 CLR 245 at 250, which his Honour summarised as follows (at 577-578):

   A power … does not authorise the making of regulations which vary or depart from the positive provisions of the Act, or which go outside the field of operation which the Act marks out; such a power does not support attempts to widen the purposes of the Act, to add new and different means of carrying them into effect, or to depart from or vary the plan which the legislature has adopted to obtain its ends. These are indicia which assist in deciding the general question of whether the regulations in question are a reasonable means of attaining the ends of the legislative delegation of power.

   [42]The applicant’s argument based upon unreasonableness is that the regulation goes beyond the regulation-making power.  “Unreasonableness” in this context requires that the regulation be so oppressive and capricious that no reasonable mind could justify it.

8. Kiefel J went on to say that the starting point of any consideration of the validity of regulations is to determine the true nature and purpose of the regulation-making power[4].

   [4] Citing Williams v Melbourne Corp (1933) 49 CLR 142 at 155; [1993] HCA 56; South Australia v Tanner (1989) 166 CLR 161 at 165; [1989] HCA 3.

Statutory provisions

1. The object of the Act is to “regulate, in the national interest, the coming into, and presence in Australia of non-citizens”: s.4(1) of the Act.

2. That regulation is undertaken by a system of visas by which a non-citizen is granted permission to enter and remain in Australia. Section 65 provides that a visa must be granted if, relevantly, the Minister is satisfied that the criteria for that visa are satisfied.

3. Section 504 of the Act contains a general power to:

   … make regulations, not inconsistent with this Act, prescribing all matters which by this Act are required or permitted to be prescribed or which are necessary or convenient to be prescribed for carrying out or giving effect to this … Act.

4. Clearly, given the terms of s.65 of the Act, the prescription of criteria for the grant of visas falls within the power granted by that provision. In any event, s.31(3) specifically provides that the Regulations may prescribe criteria for a specified class of visa.

5. The boundaries of the regulation making powers then, are determined by regard to the fact that the object of the Act, as a whole, is addressed to the national interest in respect of non-citizens. To determine what is in the national interest is a broad evaluative task and not one that can readily be confined. That, together with the breadth of the specific power in ss.31(3) and 504 of the Act, suggest that scope of the regulation making power should not be viewed narrowly.

6. Next, it is necessary to consider the impugned regulation in its more immediate context.

7. Regulation 2.01 prescribes classes of visas for the purposes of s.31 of the Act and includes classes set out in sch.1 to the Regulations. Regulation 2.02 provides for subclasses. Regulation 2.03 prescribes the criteria for specified classes of visa for the purposes of s.31(3) of the Act.

8. The criteria are relevantly contained in sch.2 to the Regulations.

9. The applicant applied for two classes of visa: Partner (Temporary) (Class UK) and Partner (Residence) (Class BS). There was only one subclass of each class of visa: subclass 820 and subclass 801 respectively. As their names suggest, the first class of visa is a temporary visa and the second class is permanent. The visas work together so that an applicant will be granted the temporary (Class UK) subclass 820 visa first; and then after 2 years will be considered for the grant of the permanent (Class BS) subclass 801 visa.

10. The applicant was granted a (Class UK) subclass 820 visa on 18 July 2012 on the basis of his spousal relationship with his sponsor. That meant that the criteria in question related to the (Class BS) subclass 801 visa.

11. The criteria for the grant of that class of visa are contained in cl.801 of sch.2 to the Regulations. Relevantly, cl.801.221(1) provided that the applicant must meet one of the requirements in cll.801.221(2), (2A), (3), (4), (5), (6) or (8). Those clauses provided:

    801.22  Criteria to be satisfied at time of decision

    …

    (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 (Spouse) visa or a Subclass 820 (Partner) visa which the Minister has decided, under section 345, 351, 391, 417, 454 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).

    (3)An applicant meets the requirements of this subclause

    
    

    if the applicant is the holder of a Subclass 820 visa granted on the basis that the applicant met the requirements of subclause 820.221 (2).

    (4)An applicant meets the requirements of this subclause

    
    

    if the applicant is the holder of a Subclass 820 visa granted on the basis that the applicant met the requirements of subclause 820.221 (3).

    (5)An applicant meets the requirements of this subclause if the applicant:

    (a)is the holder of a Subclass 820 visa; and

    (b)would meet the requirements of subclause (2) or (2A) except that the sponsoring partner has died; and

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

    (d)has developed close business, cultural or personal ties in Australia.

    (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;

    (ii)     the applicant:

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

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

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

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

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

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

    …

    (8)     The applicant meets the requirements of this subclause:

    (a)if the applicant held a Subclass 820 (Partner) visa that ceased on notification of a decision of the Minister to refuse a Subclass 801 visa; and

    (b)if the Tribunal:

    (i)     has remitted that decision for reconsideration and, as a result, the Minister decides that the applicant satisfies the criteria for the grant of a Subclass 801 visa apart from the criterion that the applicant hold a Subclass 820 visa; or

    (ii)     has determined that the applicant satisfies the criteria for the grant of a Subclass 801 visa apart from the criterion that the applicant hold a Subclass 820 visa.

    (Emphasis in original)

12. The criteria in cll.801.221(5) and (6) deal with an applicant who is no longer in a relationship with his or her sponsor. The first of these criteria concerns the circumstances where the sponsor has died. The second, cl.801.221(6) concerns a relationship that has ceased but one of two circumstances apply: there has been family violence committed by the sponsoring partner, and the applicant has some specified type of contact with, or responsibility for, a child of the sponsoring partner.

13. The only complaint made by the applicant is that the required circumstances of family violence are qualified by the fact that the sponsoring partner is the perpetrator.

The parties’ arguments

1. The applicant’s argument is that “it is neither legally reasonably [sic] nor proportionate to exclude from eligibility a person who has suffered violence at the hands of a member of the sponsoring partner’s immediate family”. At [22] of his submissions, he argues that:

   If fear flowing from violence at the hands of the sponsoring partner is enough to ensure visa eligibility, even though the relationship with the sponsoring partner has ceased, then the same should arise where the violence is at the hands of a member of the immediate family of the sponsoring partner.

   He continues by saying that the “fear is comparable in either case”.

2. The applicant supports his argument by reference to the history and purpose of the criteria in cl.801.221 of the Regulations. In its first emanation, the relevant clauses were restricted to conduct by the “nominating spouse” and required a prior judicial finding in respect of that conduct. Only the second of these features has changed[5]. The applicant placed emphasis on an amendment made in 2007 which replaced the term “domestic violence” with “family violence”[6]. The purpose of this, it was said, was to make the Regulations consistent with the Family Law Act1975 (Cth) (FLA) which used the term “family violence” rather than “domestic violence”.

   [5] By operation of Migration Regulations (Amendment) 1995 (Cth), No 117 of 1995, commencement 3 July 1995.

   [6] Migration Amendment Regulations 2007 (Cth), No 13 of 2007, commencement 15 October 2007.

3. “Family violence” was, at the time of that amendment, defined in the FLA to mean:

   … conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person’s family that causes that or any other member of the person’s family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety.

4. The applicant notes, as is clearly the case, that the definition in the FLA is not confined to violence committed by a spouse or partner.

5. The applicant argued that cl.801.221(6) of the Regulations could be saved from invalidity by excising from it the words “committed by the sponsoring partner.” The Minister argued that this would not affect the qualification to the family violence provisions in the Regulations because that qualification is also built into regs.1.21 and 1.23. I would only need to determine that issue if I were satisfied that the qualification in cl.801.221(6) were invalid.

6. The Minister argued that the requirement that the family violence be committed by the sponsoring partner, was consistent with the purpose of the family violence exception to the general requirement, that the relationship with the sponsor be current. That purpose was to ensure that a visa applicant did not have to stay in a relationship involving family violence in order to obtain a visa.

Consideration

1. The class of visa for which the applicant applied was a Partner visa. The name of the class alone suggests that the purpose of the visa is to enable an Australian citizen, permanent resident or eligible New Zealand citizen to live in Australia with his or her partner (that is, spouse or de facto spouse). The applicant did not, and could not, suggest that the creation of that class of visa was not within the scope of the regulation making powers in the Act.

2. Nor did, or could, the applicant suggest that it was beyond power to stipulate as criteria for the grant of this class of visa, that the applicant:

   a)continue to be sponsored for the visa by his or her spouse or partner: sub-cl.801.221(2)(b)(i); and

   b)be the spouse or de facto partner of the sponsoring partner.

1. Both of those criteria have a close and obvious connection to the purpose of the class of visa as a whole, and the national interest that it seeks to advance.

2. Further, the applicant does not contend that it is beyond power to create an exception to the requirement that there be a continuing sponsorship and relationship. One such qualification arises where the sponsoring partner dies after the grant of the temporary visa but before the decision whether to grant the permanent visa: cl.801.221(5). Indeed, the applicant positively contends that it would be open to regulate for a qualification that would apply to applicants who have suffered family violence in the broad sense in which that term is used in the FLA.

3. Once those propositions are accepted, as they must be, it is difficult to understand how it is beyond the scope of the regulation making power to make a limited qualification. In other words, to create a qualification that is a subset of the qualification that is accepted to be reasonable.

4. The applicant’s argument is, simply, that there is no logical reason to limit the family violence qualification to instances where the violence was committed by the spouse. I do not accept that argument.

5. First, the limitation is directly connected to the central elements in the class of visa: the partner relationship and sponsorship by the spouse. It goes without saying that violence committed by a sponsoring partner is relevant to those elements. The visa applicant is vulnerable because of the importance of those two elements. If a visa applicant is unable to obtain a permanent visa, and so faces deportation if his or her relationship breaks down, then he or she is forced to stay in a violent relationship in order to stay in Australia. The national interest in avoiding that is clear.

6. Secondly, the applicant’s argument ultimately comes down to the submission that visa applicants should also have protection where people other than their partners commit the violence. In the words of the Privy Council in Slattery v Naylor (1883) 13 App Cas 446, this is an argument that the regulation is invalid “merely because it does not contain qualifications which commend themselves to the minds of judges” (at 453).

7. Thirdly, there is a reasonable justification for limiting the family violence exception to instances where the violence is committed by the sponsoring partner. First, as I have observed, the sponsoring partner is the central element of the class of visa; secondly, the limitation appears to be the attempted resolution of the tension between the national interest of limiting the class of people who are eligible for permanent visas, and that of ensuring that the integrity of the visa system is not abused by violent partners. The fact that the resolution does not give eligibility to permanent residence to a greater class of people, is the product of an evaluation of what is in the national interest rather than an attempt to broaden the scope of the Act.

8. The limitation in cl.801.221(6) that family violence be committed by the sponsoring spouse does not render that criterion invalid.

9. In light of that conclusion, it is unnecessary to consider the Minister’s argument concerning the effects of regs.1.21 and 1.23.

Conclusion

1. There is no jurisdictional error in the Tribunal’s decision. The application must be dismissed.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Smith

Date:         2 November 2017