Singh v Minister for Immigration
[2016] FCCA 114
•1 February 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 114 |
| Catchwords: MIGRATION – Migration Review Tribunal – Partner (Temporary) (Class UK) visa – whether the tribunal was biased – whether the tribunal misunderstood the consideration concerning the basis of any sharing of household expenses – whether the tribunal asked itself whether the applicant and sponsor had a good relationship rather than a genuine relationship. |
| Legislation: Migration Act 1958 (Cth), s.5F Migration Regulations 1994 (Cth), regs.1.15A, sch.2 cll.820.211(2), 820.221(2), 820.221(3) |
| Cases cited: Kaur v Minister for Immigration & Anor [2014] FCCA 1282 Minister for Immigration and Citizenship v MZYZA [2013] FCA 572 |
| Applicant: | MANDEEP SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File number: | MLG 123 of 2015 |
| Judgment of: | Judge Riley |
| Hearing date: | 17 November 2015 |
| Date of last submission: | 2 December 2015 |
| Delivered at: | Melbourne |
| Delivered on: | 1 February 2016 |
REPRESENTATION
| Counsel for the applicant: | The applicant appeared in person |
| Solicitors for the applicant: | The applicant was not represented |
| Counsel for the first respondent: | Nick Wood |
| Solicitors for the first respondent: | DLA Piper Australia |
| Counsel for the second respondent: | No appearance |
| Solicitors for the second respondent: | DLA Piper Australia |
ORDERS
The decision of the Migration Review Tribunal handed down on
5 January 2015 in matter number MRT 1400863 is set aside.
The matter is remitted to the Administrative Appeals Tribunal for determination according to law.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 123 of 2015
| MANDEEP SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First respondent
And
| MIGRATION REVIEW TRIBUNAL |
Second respondent
REASONS FOR JUDGMENT
Introduction
This is an application for review of a decision made by the Migration Review Tribunal (“the tribunal”). In that decision, the tribunal affirmed a decision of the delegate not to grant the applicant a Partner (Temporary) (Class UK) visa.
Background
The applicant is a 26 year old national of India. He arrived in Australia in 2008 as the holder of a student visa. His last student visa ceased on 15 March 2014.
In December 2012, the applicant met his sponsor, Rista Campanaro, on a dating website. Ms Campanaro is 37 years old and an Australian citizen of Indonesian background. She had divorced her previous husband in August 2012. The child of that relationship lived with his father. The applicant has not met that child, or other members of Ms Campanaro’s family. Her parents are deceased and her siblings live in Indonesia.
In February 2013, the applicant and his sponsor decided to marry. The sponsor moved in with the applicant in April 2013. They married on
11 May 2013 at the Tandoori Junction Restaurant in Glen Waverley. They lived together until August 2013, when the sponsor left the relationship.
The applicant told the tribunal that the sponsor had gambled a lot and that she had been violent towards him. The applicant obtained an intervention order against his former sponsor in March 2014, about seven months after the relationship had ended.
Legislation
The term ‘spouse’ is defined in s.5F of the Migration Act 1958 (“the Act”) to mean:
(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.
Regulation 1.15A of the Migration Regulations 1994 (“the regulations”) relevantly provided that:
(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:
(a) a Partner (Migrant) (Class BC) visa; or
(b) a Partner (Provisional) (Class UF) visa; or
(c)a Partner (Residence) (Class BS) visa; or
(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.
The Tribunal’s reasons
The tribunal noted that the relevant criteria for the visa were in cll.820.211(2), 820.221(3) and 820.221(2) of sch.2 to the regulations. The tribunal noted that those criteria required the applicant to be the spouse of an Australian citizen as defined in the Act and as explained in the regulations. Clause 820 contained an exception that the clause could still be satisfied if a spousal relationship had ceased in circumstances where the sponsor had perpetrated domestic violence against the applicant.
The tribunal accepted that the applicant and the sponsor were married on 11 May 2013. However, after considering the various matters set out in reg.1.15A of the regulations, the tribunal was not satisfied that:
a)the applicant and the sponsor had a mutual commitment to a shared life as husband and wife to the exclusion of all others; and
b)the relationship between them was genuine and continuing.
The tribunal was not satisfied that the applicant was ever the spouse, as defined, of the sponsor. In these circumstances, the tribunal found it unnecessary to consider the evidence concerning domestic violence.
Ground 1
The first ground of review in the application filed on 23 January 2015 is:
The member did not consider my circumstances fully and it appeared as if she had already made her decision.
This ground has two aspects, failure to consider the case as put and bias.
The applicant has not pointed to any particular aspect of the case that the tribunal did not consider. Except as discussed elsewhere in these reasons, it seems to me that the tribunal did consider everything that it was required to consider.
In relation to the bias point, there is no transcript of the tribunal hearing before the court. However, a CD of the audio recording of the tribunal hearing was provided after the hearing in this court. I have not been able to detect anything in the recording that would justify a finding of actual bias, in the sense of the tribunal having made up its mind so firmly that it was incapable of changing it prior to the end of the tribunal hearing, or a finding of a reasonable apprehension of bias, in the sense that a fully informed lay observer may have reasonably apprehended that the tribunal may have made up its mind so firmly that it was incapable of changing it prior to the end of the tribunal hearing.
Ground 2
The second ground of review in the application filed on
23 January 2015 is:
The member was dismissive of everything that I was saying including that “anyone can get intervention order”.
The CD of the tribunal hearing (at 33 minutes and 16 seconds) indicates that what the tribunal actually said in this regard was:
It’s not hard to get an intervention order.
That is probably factually correct, in relation to interim intervention orders made ex parte. However, the order in this case (CB151) was a final intervention order made when Ms Campanaro was in court. On the other hand, it was not made following a contested hearing. It was made by consent and without admissions. As is well known, respondents to intervention order applications will sometimes consent to an intervention order being made without admissions because they do not want to have any further contact with the alleged victim anyway and they do not have the money to engage a lawyer to fully defend the case.
In any event, after the statement set out above, the following exchange occurred:
Applicant: But I proof all things, she came with a lawyer there.
Tribunal: Yeah, well OK, well I, OK.
That seems to mean that the tribunal had changed its mind, from thinking that “it’s not hard to get an intervention order” to thinking, “this might have been a genuine case”. To the extent that the applicant was suggesting a bias point with this ground, the tribunal’s evident acceptance of what the applicant said, and the tribunal’s apparent change of mind, demonstrates that it was not actually biased and that there could be no reasonable apprehension of bias on this ground. Certainly, the tribunal did not rely in its reasons for decision on intervention orders being easy to obtain.
For completeness, I note that the first respondent submitted that the impugned statement was immaterial because the intervention order was only relevant to the domestic violence question, and the tribunal did not need to deal with that question because it determined that the relationship between the applicant and the sponsor was not genuine.
That is not entirely correct. The tribunal is required by reg.1.15A(2) of the regulations to consider all of the circumstances of the relationship. The circumstances of the relationship include an application for an intervention order and the granting of an intervention order. Such circumstances clearly support the existence of some sort of relationship between the parties, albeit one that ended badly.
In any event, this ground is not made out, because the recording of the hearing does not substantiate the claim that the tribunal was dismissive of the applicant’s claims in the way alleged.
Ground 3
The third ground of review in the application filed on 23 January 2015 is:
When I was taking care of all the expenses as my wife was not earning much, she [i.e., the tribunal] took the position that we were not sharing our finances together. This was totally an incorrect assumption.
In its consideration of the financial aspects of the applicant’s relationship with the sponsor, and the nature of their household, the tribunal said the following:
Financial aspects of the relationship
33. As noted above the applicant told the Tribunal that both he and the sponsor were working during the course of their marriage, and that he earned variable amounts working shifts at McDonalds, and the sponsor also worked casual hours but he does not know how much she earned. The applicant told the Tribunal that he had a joint bank account with the sponsor. He has provided evidence of that account for the period April to May 2013 (Departmental file, ff.110 -111) and of an individual bank account of the sponsor for the period March to May 2013 (ff. 102-106). The applicant told the Tribunal that he paid all of couple’s bills, and that the sponsor took money from him without his knowledge for the purposes of gambling, and he has provided telephone records of her requests for large sums of money from him, and including threats that she will withdraw her sponsorship of him if he does not pay her credit card bills or transfer money to her (Tribunal file ff.72-125).
34. The Tribunal has considered all the evidence before it in relation to the financial aspects of the relationship. Based on the very limited evidence of any pooling of the parties’ finances, the fact that the applicant did not know what the sponsor earned during their relationship, and the lack of any sharing of household expenses, the Tribunal is not satisfied that the financial aspects of the relationship support a finding that the relationship between the applicant and sponsor was genuine.
The nature of the household
35. The applicant told the Tribunal that he and the sponsor began living together in April 2013, and he has provided a copy of a Residential Tenancy Agreement dated 20 April 2013 naming both the applicant and sponsor as tenants of a property in Springvale. (Departmental file, f.98). The Tribunal accepts that the parties lived in the same household from April 2013 until August 2013. While the Tribunal has concerns about the limited amount of evidence in relation to whether the applicant and sponsor lived together at the address, the Tribunal is satisfied the sponsor spent some time at the address in question.
36. The applicant told the Tribunal that he paid all of the household bills, and the sponsor did not contribute to their utility bills or living costs.
37. The Tribunal notes that the applicant provided a transcript of telephone exchanges between himself and the sponsor commencing in June 2013 and indicating that by early July the sponsor clearly wanted to end her relationship with the applicant (Tribunal file, f.121) and was unhappy and depressed (f.111), was struggling with separation from her child and with her gambling addiction. She and the applicant were not always sharing a household as the sponsor went out late and stayed with friends (f.101). The applicant told the Tribunal that he had discovered the sponsor’s ‘other side’ once they were married and she would frequently go out late and stay away overnight.
38. 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. (emphases added)
The tribunal appears to have accepted that the applicant paid all of the couple’s bills and living costs. However, in paragraph 34 of its reasons for decision, the tribunal relied on “the lack of any sharing of household expenses” as a reason for not accepting that the relationship was genuine. In my view, this statement belies a misapprehension about what the regulations required.
As we know, in previous generations, husbands typically worked and paid all the household bills and accommodation costs and wives typically did not work at all. In such relationships, there was not “a sharing of household expenses” because the wife had no income to contribute. However, such relationships were nevertheless genuine and continuing.
The present case is similar, in that the applicant paid all of the household bills and accommodation costs for both himself and the sponsor. However, in the present case, the wife did work. She presumably spent her income on clothes, outings, and, as the applicant suggests, gambling. But the fact that the sponsor did not contribute her earnings to the joint living costs of herself and the applicant does not, of itself, indicate that the relationship was not genuine and continuing.
The tribunal appears to have understood the regulations to mean that the applicant and the sponsor were each required to have in some way shared financially in the household expenses. That is patently incorrect. The regulations relevantly required that the tribunal consider:
the basis of any sharing of day-to-day household expenses.
The regulations do not require that there be a sharing of household expenses to establish a genuine relationship. The regulations refer to “any” sharing of household expenses. Furthermore, the regulations only require that the tribunal consider the basis of any sharing of household expenses.
There are a number of bases on which genuine couples can deal with their household expenses. For example:
a)they can each contribute equally or at least substantially;
b)one can pay for utilities and food while the other pays the mortgage; and
c)one can pay for all household expenses while the other keeps any earnings for personal use.
The tribunal seems to have approached the case on the basis that only option (a) was consistent with a genuine relationship. In doing so, the tribunal misdirected itself and misapplied the law. As such, it made a jurisdictional error.
The first respondent argued that the tribunal relied on a number of additional matters to decide that the relationship between the applicant and the sponsor was not genuine and continuing. However, the tribunal’s misunderstanding that the regulations required that household expenses be shared was clearly a significant factor in its decision. The tribunal expressly relied on that point in paragraph 34 of its reasons for decision. I am not satisfied that the tribunal would have come to the same decision if it had not made that error.
Ground 4
The fourth ground of review in the application filed on
23 January 2015 is:
My wife used to like to go out with friends whereas I like relaxing at home. This was a topic for our fights a number of times. However, the member considered it as proof that our relationship was not genuine.
In reaching its decision, the tribunal noted that the applicant said that Ms Campanaro liked to go out with friends. However, the tribunal did not refer specifically to the different ways that the applicant and Ms Campanaro liked to spend their spare time. That is, the tribunal did not rely on that circumstance as proof that the relationship was not genuine. This ground is without substance.
Ground 5
The fifth ground of review in the application filed on 23 January 2015 is:
My wife wanted baby straightaway, whereas, I wanted to be bit more financially stable. The member again did not consider this to be normal in a large number of families.
In relation to this topic, the tribunal said at paragraph 45 of its reasons for decision:
45. The applicant told the Tribunal that he and the sponsor planned to start a family together but that the sponsor was desperate to [do] so straight away, whereas he wanted to wait until they had spent more time in the relationship and were in a better financial position. This was a source of disagreement between them. The Tribunal accepts the applicant’s evidence that the sponsor wished to have a baby as soon as possible, and that the applicant was willing to consider having a child with her, but not until a later time. However given the Tribunal’s concerns about other aspects of the parties’ relationship the Tribunal affords this matter little weight.
As can be seen, the tribunal gave little weight to the issue of the couple having a baby together. Normally, a decision by a couple to have a child would be seen as a very significant hallmark of a genuine relationship. However, I am unable to detect any jurisdictional error in the tribunal’s handling of this issue. Generally speaking, it is open to the tribunal to give such weight to each item of evidence as it sees fit. It is not for this court to determine the merits of the matter. The court is not permitted to set aside a tribunal decision based on the weighting the tribunal has given to any particular circumstance.
Ground 6
The sixth ground of review in the application filed on 23 January 2015 is:
The member did not consider the reports from two experts that I am going through depression due to the breakdown of my relationship.
There were two statutory declarations before the tribunal, one from a general practitioner and one from a psychologist. There was also a further one page report from the psychologist.
The GP said that a psychiatrist had diagnosed the applicant with depression and the applicant reported to the GP problems with his wife who had been abusive to him. The psychologist said in her report that:
[she had] assessed Mr Singh as having an adjustment disorder with depression due to the breakdown of his marriage to Ms Campanaro which he stated was marred by family violence directed towards him and problem gambling by his wife. Mr Singh stated that he was physically and emotionally and financially abused in this relationship and has had to endure ongoing threats over the phone and text message after the marriage ended. Mr Singh was definitely depressed because of the abuse he stated he endured.
The psychologist said in her report that her views were based on her clinical assessment and clinical observation. The letter from the psychologist said similar things.
The tribunal, in its summary of the hearing, at paragraph 15 of its reasons for decision, noted that the applicant referred to the two reports during the tribunal hearing.
The tribunal noted in its reasons for decision that the applicant had not raised the family violence claims until the day before the tribunal hearing, although the statements from the general practitioner and psychologist were dated some months earlier.
However, the tribunal did not refer to the reports again in its reasons for decision. The first respondent submitted that the tribunal did not need to consider them, because they were only relevant to the claim of family violence. The first respondent relied on Kaur v Minister for Immigration and Border Protection [2014] FCCA 1282 at [40] to [45].
However, it seems to me that the first respondent’s submission misunderstands the legal position. Regulation 1.15A(2) of the regulations specifically requires the tribunal to consider all of the circumstances of the relationship when determining whether it was genuine. The statutory declarations about family violence go to the circumstances of the relationship. They tend to support the claim that there was a relationship between the parties, albeit one that ended badly.
Having said that, it is well established that the tribunal is not obliged to consider every item of evidence. See, for example, Minister for Immigration and Citizenship v MZYZA [2013] FCA 572 at [30] and [53] to [63]. In other words, the tribunal is obliged to consider all of the circumstances of the relationship, but not necessarily every item of evidence that goes to each of those circumstances.
Clearly, the tribunal is not obliged to determine whether the domestic violence provisions are satisfied if the tribunal considers that there was no spousal relationship in the first place. However, in determining whether there was a spousal relationship, evidence about domestic violence would be relevant as part of the totality of the circumstances of the relationship. Nevertheless, the tribunal is not obliged to expressly grapple with every item of evidence, provided that it considers all of the mandatory considerations set out in the regulations.
In the present case, it does not seem to me that the tribunal’s failure to expressly grapple with the expert reports resulted in jurisdictional error. The tribunal formed a view about the nature of the relationship between the applicant and the sponsor, which expressed at paragraph 49 of its reasons for decision, as follows:
… the relationship was characterised for its duration by conflicting expectations, demands and mutual distress.
It is difficult to see how the evidence in the expert reports relating to family violence could have added significantly to that characterisation.
Ground 7
The seventh ground of review in the application filed on
23 January 2015 is:
In her decision, the member stated that the only form of financial evidence provided was the lease agreements, however, I had provided a number of other documents such as bills for utilities, phone records, etc.
It is not the case that the tribunal stated in its reasons for decision that the only form of financial evidence provided by the applicant was the lease agreements. The tribunal’s reasons regarding the financial aspects of the relationship included paragraphs 33 to 38 of its reasons for decision, which are set out above. Clearly, the tribunal noted a good deal of financial evidence in addition to the lease agreements. This ground is without merit.
Ground 8
The eighth ground of review in the application filed on
23 January 2015 is:
It appeared that the member had no consideration that all relationships are different, same as all humans are different and was taking all arguments and evidence in a negative way.
The tribunal said at paragraph 49 of its reasons for decision:
Both his oral evidence and the telephone transcript he has provided to the Tribunal indicate that the relationship was characterised for its duration by conflicting expectations, demands and mutual distress. The Tribunal does not accept that these are the characteristics of a relationship between parties who share a mutual commitment to a shared life as husband and wife to the exclusion of all others.
The tribunal was clearly of the view that a fundamentally flawed relationship cannot simultaneously be a relationship in which the parties have a mutual commitment to a shared life as husband and wife to the exclusion of all others. That view is mistaken. There is clearly a significant percentage of marriages in which the parties have an appalling relationship. These marriages are nevertheless genuine and the parties to them, at least for a time, have a mutual commitment to a shared life as husband and wife to the exclusion of all others. The family law jurisdiction of this court deals with the aftermath of such marriages on a daily basis.
In forming the erroneous view mentioned above, the tribunal misdirected itself about the question it had to answer. Rather than considering whether the applicant and sponsor, at the relevant time, had a mutual commitment to a shared life as husband and wife to the exclusion of all others, the tribunal asked itself whether they had a good relationship. Consequently, the tribunal fell into jurisdictional error.
Ground 9
The ninth ground of review in the application filed on 23 January 2015 is:
I request the court to review my case and make a fresh decision in my favour.
This ground is a blatant request for merits review, which this court is not able to provide.
Conclusion
For the reasons discussed above, the tribunal fell into jurisdictional error. There was no suggestion that there were any discretionary reasons for not remitting the matter to the tribunal for determination according to law. Consequently, there will be orders setting aside the tribunal’s decision and remitting the matter to the tribunal for determination according to law.
I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Judge Riley
Associate:
Date: 1 February 2016
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