Singh v Minister for Immigration
[2016] FCCA 1845
•1 August 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 1845 |
| Catchwords: MIGRATION – Migration Review Tribunal – Partner (Temporary) (Class UK) visa subclass 820 – whether the Tribunal gave a fair hearing – whether the Tribunal misapplied the law. |
| Legislation: Migration Act 1958, s.5F Migration Regulations 1994, rr.1.15A, 1.23 |
| Applicant: | JAGJEET SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File number: | MLG 1497 of 2015 |
| Judgment of: | Judge Riley |
| Hearing date: | 6 June and 7 July 2016 |
| Date of last submission: | 7 July 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 1 August 2016 |
REPRESENTATION
| Advocate for the applicant: | In person |
| Solicitors for the applicant: | None |
| Advocate for the first respondent: | Bromley Hornsby |
| Solicitors for the first respondent: | Sparke Helmore |
| Advocate for the second respondent: | No appearance |
| Advocate for the second respondent: | Sparke Helmore |
ORDERS
The decision of the Migration Review Tribunal handed down on 2 June 2015 in matter number 1411838 be set aside.
The matter be remitted to the Administrative Appeals Tribunal for determination according to law.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1497 of 2015
| JAGJEET SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First respondent
And
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second respondent
REASONS FOR JUDGMENT
Introduction
This is an application for review of a decision made by the Migration Review Tribunal (“the Tribunal”), which is now part of the Administrative Appeals Tribunal. In that decision, the Tribunal affirmed a decision of the delegate not to grant the applicant a Partner (Temporary) (Class UK) visa subclass 820.
The matter was listed for a show cause hearing on 6 June 2016. On that day, the court ordered the Minister to obtain a transcript of the proceedings before the Tribunal and otherwise adjourned the hearing to 7 July 2016. At the resumed hearing, the parties agreed that the hearing should be treated as a final hearing.
Background
The applicant first arrived in Australia in 2009 as the holder of a student visa. He was sponsored by his then wife, Kulwinder Kaur. They divorced in 2010. The applicant’s student visa ceased on 17 October 2011. The applicant married Gail Lancaster on 8 May 2011. The applicant was born in 1987 and Ms Lancaster was born in 1967.
The applicant applied for a spouse visa on 12 September 2011, based on his marriage to an Australian citizen, Ms Lancaster. On 11 April 2014, the applicant advised the department that his relationship with Ms Lancaster had ended. He said that he had suffered family violence perpetrated by Ms Lancaster.
On 13 June 2014, a delegate of the minister refused the application for a spouse visa. The delegate accepted that the applicant had provided some evidence that supported his claim to be in a genuine de facto relationship with his sponsor. (In fact, they were married.) However, the delegate did not accept that the evidence in its entirety demonstrated that the applicant was in a genuine and continuing relationship with his sponsor at the time of application. The delegate declined to consider the family violence claims.
The Tribunal’s reasons
The Tribunal referred to s.5F of the MigrationAct 1958 (“the Act”). That section provided that:
(1)For the purposes of this Act, a person is the spouse of another person 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 husband and wife 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.
(3)The regulations may make provision in relation to the determination of whether one or more of the conditions in paragraphs (2)(a), (b), (c) and (d) exist. The regulations may make different provision in relation to the determination for different purposes whether one or more of those conditions exist.
The Tribunal accepted that the applicant and Ms Lancaster were validly married and satisfied the requirements of s.5F(2)(a) of the Act. The Tribunal then referred to r.1.15A of the Migration Regulations 1994 (“the Regulations”). That regulation relevantly provided as follows:
(1)For subsection 5F(3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5F(2)(a), (b), (c) and (d) of the Act exist.
(2)If the Minister is considering an application for:
…
(d)a Partner (Temporary) (Class UK) visa;
the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).
(3) The matters for subregulation (2) are:
(a)the financial aspects of the relationship, including:
(i) any joint ownership of real estate or other major assets; and
(ii) any joint liabilities; and
(iii) the extent of any pooling of financial resources, especially in relation to major financial commitments; and
(iv) whether one person in the relationship owes any legal obligation in respect of the other; and
(v) the basis of any sharing of day-to-day household expenses; and
(b)the nature of the household, including:
(i) any joint responsibility for the care and support of children; and
(ii) the living arrangements of the persons; and
(iii) any sharing of the responsibility for housework; and
(c)the social aspects of the relationship, including:
(i) whether the persons represent themselves to other people as being married to each other; and
(ii) the opinion of the persons' friends and acquaintances about the nature of the relationship; and
(iii) any basis on which the persons plan and undertake joint social activities; and
(d)the nature of the persons' commitment to each other, including:
(i) the duration of the relationship; and
(ii) the length of time during which the persons have lived together; and
(iii) the degree of companionship and emotional support that the persons draw from each other; and
(iv) whether the persons see the relationship as a long-term one.
(4) … .
The Tribunal noted, and apparently accepted, that the applicant paid all of the couple’s bills. On the other hand, the Tribunal noted that the applicant said that he and Ms Lancaster did not share a bank account or pool their finances and said that the sponsor did not contribute to shared household costs and spent large sums of money on alcohol and cigarettes.
The Tribunal considered that there was minimal evidence of any pooling of finances. In the circumstances no the Tribunal said it was:
not satisfied that the financial aspects of the relationship support a finding that the relationship between the applicant and sponsor was genuine and continuing.
In relation to the nature of the household, the Tribunal was satisfied that the applicant and sponsor spent several months sharing an address in Thomastown. The Tribunal said that the applicant had said that he paid all of the household bills and the sponsor did not contribute to utility bills or living costs. The Tribunal then said:
35.Based on the limited evidence before it and the Tribunal's concerns about the other aspects of the relationship, the Tribunal is not satisfied that the evidence in relation to the nature of the household supports a finding that applicant and sponsor had a mutual commitment to a shared life as husband and wife to the exclusion of all others or that the relationship between them was genuine and continuing.
In relation to the social aspects of the relationship, the Tribunal accepted that:
the applicant and sponsor represented themselves to some people as being in a married relationship.
However, the Tribunal considered that there was “very little evidence” that the couple represented themselves to their broader family and social circles as being in a married relationship. The Tribunal then said:
39.The Tribunal would expect that a couple with a mutual commitment to a shared life as husband and wife would have some (sic) received some recognition of their relationship from their respective families.
40.The Tribunal is not satisfied that the social aspects of the relationship support a finding that the applicant and sponsor had a mutual commitment to a shared life as husband and wife to the exclusion of all others, or that the relationship between them was genuine and continuing.
In relation to the nature of the parties’ commitment to one another, the Tribunal noted that the applicant left the relationship about eight or nine months after the marriage. The Tribunal said that it had taken into account documents the applicant provided relating to the family violence he claimed to have suffered at the hands of Ms Lancaster, including an intervention order dated 29 February 2012. The Tribunal then said:
45.The Tribunal is not satisfied that the evidence in relation to the applicant's and sponsor's commitment to each other supports a finding that they had a mutual commitment to a shared life as husband and wife to the exclusion of all others, or that the relationship between them was genuine and continuing. As noted above the parties separated on very poor terms several months after they married.
46.The Tribunal does not consider that the evidence in respect of the parties’ relationship is indicative of a mutual commitment to a shared life as husband and wife to the exclusion of all others.
In conclusion, the Tribunal said:
47.After considering all the circumstances of the relationship, the Tribunal finds that while the applicant and sponsor may have shared an address, the applicant and sponsor never had a mutual commitment to a shared life as husband and wife to the exclusion of all others, nor does the Tribunal accept that the relationship between them was genuine and continuing. …
48.As it logically follows that a relationship must first have existed before it can have subsequently ceased, it is not necessary for the Tribunal to consider the claim of family violence.
Grounds of application
The grounds of review in the application filed on 1 July 2015 are: (errors in original)
1)The applicant seeks review of the decision of the Migration Review Tribunal’s decision dated 3/06/2015.
2)The applicant made an application for review to the Migration Review Tribunal to review of a decision of Department of Immigration and Border Protection on 13 June, 2014 to refuse his Application Partner (Temporary Class UK) visa under section 65 Migration Act, 1958.
3)The Applicant’s visa was refused on the grounds that the visa applicant did not satisfy Cl 820.211 of the Regulations because the applicant was not a spouse as defined in the visa application. The delegate acknowledged the applicant’s claim to have suffered family violence perpetuated by the sponsor, but the delegate was not satisfied that the applicant was in a sound relationship.
4)The Applicant made an application to the MRT on 29, December 2014 to review the Department’s decision.
5)The Applicant’s application for review heard by the MRT on 20, May 2015 and refused on 3, June 2015.
6)The Applicant was found by the Tribunal not be in a relationship, but the applicant disputes the Tribunal’s finding. He was not in a relationship because he lived with his spouse seven months before he left her due to Domestic Violence.
7)Although the Tribunal acknowledged Family violence, the Tribunal found that the applicant did not show that they never had a social life or a relationship.
This is an error, in that the applicant and his spouse lived together for seven months and socialised together for that period of time as husband and wife but the relationship became difficult because of the spouse’s demand for money to pay for her gambling expenses and drinking.
The Applicant refused to support her habits and was subjected to violence which caused him to seek help in the Magistrate’s Court. The AFO was made on 29/02/2012 at the Magistrates’ Court at Sunshine and from that date, the applicant lived separate and apart.
The Applicant considered the Tribunal’s decision to be wrong in that:
1)There was a marital relationship for a considerable period of time.
2)That relationship was social and there was a household established which the applicant worked to support.
3)The relationship ended due to family violence and the reaching of an order and of prior to that event.
4)The Applicant asks the Court to set aside the Tribunal’s decision of 3/06/2015 and find that there was:
1) A martial relationship between the applicant and his former spouse and that,
2) It ended due to family violence.
As can be seen, the grounds of review in the application essentially seek merits review, which this court is unable to provide. This court is not permitted to make a finding that there was a marital relationship between the applicant and Ms Lancaster that ended due to family violence.
However, at the hearing before this court on 6 June 2016, the applicant raised two other issues. The applicant said that:
a)in the middle of the Tribunal hearing, the Tribunal said that it was not interested in the applicant’s evidence about domestic violence; and
b)during the hearing, the Tribunal said it was not interested in the applicant’s evidence about him having paid the sponsor’s fines.
The transcript of the proceedings before the Tribunal shows that the applicant was represented by a migration agent, Mr Vlahos. The transcript shows that the applicant told the Tribunal that he was divorced from his sponsor. The Tribunal then said:
In that case, you’re not entitled to a partner visa because you don’t have a sponsor and a partner.
The applicant then mentioned arguments he had had with his sponsor over money. The Tribunal said:
That’s not relevant … if you don’t [have a sponsor] you can’t satisfy the visa requirements … Except in some limited circumstances.
The Tribunal then said that there was no evidence before it of a claim of family violence. The applicant told the Tribunal that he had taken out an intervention order against his spouse. The agent offered to provide the intervention order. The Tribunal told the agent that it was strange that the intervention order had not been mentioned previously, and told the agent that he should have provided the family violence material seven days prior to hearing. The agent then provided some statements and a doctor’s report.
The Tribunal asked the applicant why he and his sponsor got married. The applicant began to explain. The Tribunal said:
I don’t - no, no, Mr Singh, I don’t want to hear a whole history of your relationship. It just seemed like an unusual choice given the very significant age difference, Ms Lancaster been very much older than you.
The applicant replied that Ms Lancaster had impressed him and they had lived together for four or five months. The Tribunal then said:
Okay. I don’t want to hear any more about that, thank you. I’m just going to adjourn this hearing for about 15 minutes so I can look at the documents that you’ve provided.
When the Tribunal member returned, she said that she had looked at the documents that had been handed up shortly before. She then said that she needed to consider whether the applicant was in a genuine and continuing relationship with a former spouse during “the relevant period”. The Tribunal then asked the applicant numerous questions about his relationship with his former spouse, including questions about where they met, her children, the intervention order, their social activities and their financial arrangements.
The applicant told the Tribunal that the sponsor received a lot of fines for speeding and offered to show the Tribunal evidence of the fines. The Tribunal then said:
I don’t think they’re legally relevant. Thank you. I’ve made a note that you had those.
After some further questions, the Tribunal said:
Is there anything else that you wanted to say today that you feel you haven’t had the opportunity to present to the Tribunal?
The applicant said that he been under a lot of stress and mentioned his child in India. The Tribunal then said:
I’m sorry that you’re still under stress. … Once I’m - once I satisfy myself, if I’m able to - that your spouse relationship was a genuine and continuing spouse relationship then I will turn my mind to your claim of family violence.
A little later, the Tribunal said:
Okay. Do you feel you’ve had the opportunity to be fully heard today Mr Singh? I acknowledge your distress and I acknowledge that the hearing hasn’t progressed in a way that it would have if I had had some relevant material before me prior to the hearing. … Mr Vlahos, did you wish to make any submissions? I would note, again, for the record that you have been … his lawyer for a number of years. …
What followed can only be described as an argument, with the Tribunal member saying repeatedly that the agent had not provided the evidence of family violence at the appropriate time, and had not said at the appropriate time that the applicant would be attending the Tribunal hearing.
Conclusion
It is difficult to understand why the Tribunal was not aware until after the hearing had begun that the applicant had made a claim that his marriage to his sponsor had ended for reasons of domestic violence. The applicant’s agent had written to the department on 11 April 2014 stating exactly that and enclosing an intervention order and a report of a treating psychologist. Furthermore, the delegate noted at page 4 of his or her decision that the applicant had claimed to have suffered family violence perpetrated by his sponsor.
The Tribunal in its hearing invitation dated 31 March 2015 asked the applicant to provide any additional documents by 13 May 2015, seven days prior to the scheduled hearing. The applicant evidently did not provide any additional documents at that point. What was handed up during hearing was:
a)a statement from the applicant about arguments he had had with the sponsor and her assault on him;
b)an order for the divorce of the applicant and his sponsor;
c)a medical certificate saying the applicant suffered from depression and anxiety; and
d)another medical certificate saying the applicant had swelling and tenderness on one of his fingers allegedly due to his wife throwing a frying pan at him.
The documents handed up during the hearing before the Tribunal were surplus to requirements. That is because, under r.1.23 of the Regulations, the applicant was to be taken to have suffered family violence at the hands of his sponsor upon the production of the intervention order made on 29 February 2012. It was clear from the face of that order that the sponsor had been given an opportunity to be heard prior to the making of it.
Regulation 1.23 of the Regulations relevantly provided that:
(1) For these Regulations, this regulation explains when:
(a)a person (the alleged victim ) is taken to have suffered family violence; and
(b)another person (the alleged perpetrator ) is taken to have committed family violence in relation to the alleged victim.
…
Circumstances in which family violence is suffered and committed – court order
(4)The alleged victim is taken to have suffered family violence, and the alleged perpetrator is taken to have committed family violence, if:
(a)a court has made an order under a law of a State or Territory against the alleged perpetrator for the protection of the alleged victim from violence; and
(b)the order was made after the court had given the alleged perpetrator an opportunity to be heard, or otherwise to make submissions to the court, in relation to the matter.
(5)For subregulation (4), the violence, or part of the violence, that led to the granting of the order must have occurred while the married relationship or de facto relationship existed between the alleged perpetrator and the spouse or de facto partner of the alleged perpetrator.
The Tribunal hearing obviously got off to a bad start with the Tribunal member being unaware, for no good reason, that the applicant had made a claim of family violence. Prior to the break in the Tribunal’s hearing, the Tribunal made a number of statements that are suggestive of a denial of procedural fairness, including:
In that case, you’re not entitled to a partner visa because you don’t have a sponsor and a partner.
I don’t want to hear a whole history of your relationship.
I don’t want to hear any more about that, thank you.
However, the court must consider the hearing as a whole. Intemperate language or apparently concluded reasoning at one point in a hearing can be shown to have not adversely affected the fairness of the hearing if a proper opportunity to present all relevant material is provided later.
Most of the Tribunal’s conduct of the hearing after the break was adequate. However, there were two significant respects in which it was not.
The first is the Tribunal member’s statement that she did not think that the sponsor’s fines were “legally relevant”. The applicant told the court that he had paid some of the sponsor’s fines. That information was “legally relevant”, because it shows a pooling of financial resources, in the sense of one party meeting on the expenses of another.
By the Tribunal saying that the information relating to the sponsor’s fines was not “legally relevant”, the Tribunal inhibited the applicant from giving relevant information which may have altered the outcome of the hearing.
The Tribunal found that there was “minimal evidence of any pooling of the parties’ finances”. Clearly, any additional evidence, such as that the applicant had paid some of the sponsor’s fines, may have been sufficient to take the evidence out of the category of “minimal” and altered the Tribunal’s overall assessment.
It should also be noted that the Tribunal said at paragraphs 31 and 34 of its reasons for decision that the applicant had said that he and the sponsor did not pool their finances in any way but he paid all of the couple’s household bills. The transcript shows that the applicant actually told the Tribunal that there were no shared expenses, because he paid all the household bills and the sponsor refused to contribute.
That amounts to a pooling of financial resources, in the sense that the applicant was paying some of the sponsor’s living expenses. That is different to each of the applicant and sponsor paying for all of their own expenses entirely separately.
The Tribunal, it seems to me, misunderstood and misapplied the relevant regulation in relation to the pooling of financial resources.
The second respect in which the Tribunal’s conduct of the hearing after the break was inadequate was the argument that the Tribunal had with the applicant’s agent immediately after asking him if he wished to make any submissions. During that argument, the Tribunal repeatedly interrupted the agent and did not let him speak. The upshot of the argument and the interruptions was that the agent did not ultimately have an opportunity to make submissions.
In view of the Tribunal’s misapplication of the law in relation to the pooling of financial resources, it is possible that the denial of an opportunity to make submissions might also have affected the outcome of the proceedings before the Tribunal.
Taking into account all of these matters, I am satisfied that the Tribunal did not provide the applicant with a fair hearing and misapplied the law. These are jurisdictional errors. It was not suggested that there are any discretionary reasons for not remitting the matter to the Tribunal for rehearing. Consequently, there will be orders setting aside the Tribunal’s decision and remitting it for rehearing. I will hear the parties on the question of costs.
For completeness, I also note that the Tribunal was required to consider whether the applicant and sponsor were in a spousal relationship at the time of application and, unless there was relevant family violence, at the time of decision. The Tribunal’s reasons for decision show that it decided that the applicant and respondent were never in a spousal relationship. It follows that, in the Tribunal’s view, they were not in a spousal relationship at the time of application. However, the Tribunal did not specifically address the nature of the relationship at the time of application. Obviously, later events can shed light on earlier circumstances, but a key issue in matters of this type is the nature of the relationship at the time of application.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge Riley
Date: 1 August 2016
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