Singh v Minister for Immigration
[2019] FCCA 1899
•12 July 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 1899 |
| Catchwords: MIGRATION – Judicial review – decision of former Migration Review Tribunal – Indian citizen – refusal of partner visa – whether failure to take into account relevant considerations – whether irrelevant considerations taken into account – whether claim of domestic violence required to be considered – whether significant errors of facts affecting decision – whether jurisdictional error – writs issued. |
| Legislation: Migration Act 1958 (Cth), ss.5F, 65, 348, 368, 420, 422B, 476 |
| Cases cited: Collins v Minister for Immigration [2003] FMCA 571 Maroun v Minister for Immigration & Citizenship [2009] FCA 1284; (2009) 112 ALD 424 Minister for Immigration & Citizenship v SZNPG [2010] FCAFC 51; (2010) 115 ALD 303 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 NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 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 Re 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 SZDFZ v Minister for Immigration & Citizenship & Anor [2008] FCA 390; (2008) 168 FCR 1; (2008) 100 ALD 575 SZEHN v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1389 |
| Applicant: | KARANVIR SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 243 of 2015 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 14 March 2016 |
| Date of Last Submission: | 14 March 2016 |
| Delivered at: | Perth |
| Delivered on: | 12 July 2019 |
REPRESENTATION
| Counsel for the Applicant: | [Mr M Udall |
| Solicitors for the Applicant: | Martin Udall & Associates |
| Counsel for the First Respondent: | Mr P Macliver |
| For the Second Respondent: | Submitting appearance, save as to costs |
ORDERS
That a writ of certiorari issue quashing the decision of the second respondent made on 8 May 2015.
That a writ of mandamus issue requiring the second respondent to re-determine the application made to it on 2 August 2014 according to law.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 243 of 2015
| KARANVIR SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
Karanvir Singh (“Mr Singh”) seeks judicial review (“Judicial Review Application”) under s.476 of the Migration Act1958 (Cth) (“Migration Act”) of a decision of the former Migration Review Tribunal, now the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively). The Tribunal Decision affirmed a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration & Border Protection (“Minister”) to not grant Mr Singh a Class BS (Partner-Residence) Subclass 801 visa (“Permanent Partner Visa”).
Background prior to the Judicial Review Application
The background prior to the Judicial Review Application is as follows:
a)on 27 February 2006 Mr Singh, a citizen of India, first arrived in Australia on a Student (Class TU) Subclass 573 visa: CB 104;
b)on 18 April 2010 Mr Singh married Constance Emily Tozer (“Ms Tozer”), an Australian citizen, at Canning Vale, Western Australia: CB 47;
c)on 5 May 2010 Mr Singh lodged a combined application for a Class UK (Partner - Temporary) Subclass 820 partner visa (“Temporary Partner Visa”) and a Permanent Partner Visa with the then Department of Immigration and Citizenship (“Department”), on the basis of his relationship with his sponsor, Ms Tozer: CB 1-24;
d)on 18 November 2010 a delegate of the Minister granted Mr Singh the Temporary Partner Visa: CB 120;
e)on 25 June 2013 Mr Singh, by his migration agent, informed the Department that his relationship with Ms Tozer had broken down due to domestic violence: CB 176;
f)by letter dated 2 December 2013 the Department notified Mr Singh of the evidentiary requirements of a claim to have suffered family violence: CB 293-298;
g)by letter dated 14 February 2014 the Department informed Mr Singh that his claim of family violence had been referred to an independent expert (“Expert”) pursuant to reg.1.23(10)(c) of the Migration Regulations 1994 (Cth) (“Migration Regulations”): CB 342;
h)by letter dated 2 June 2014 the Department invited Mr Singh to comment within 28 days on the Expert’s opinion (“Expert’s Opinion”) that Mr Singh did not experience family violence as claimed: CB 366-369;
i)on 18 July 2014 the Delegate refused to grant Mr Singh a Permanent Partner Visa. The Delegate noted that, pursuant to reg.1.23(10)(c)(ii) of the Migration Regulations, the Minister must take the Expert’s Opinion on whether Mr Singh had suffered relevant family violence to be correct for the purpose of determining Mr Singh’s family violence claims. Accordingly, the Delegate found that Mr Singh had not suffered from family violence committed by Ms Tozer, and that Mr Singh did not satisfy cl.801.221(4) and (6) of Schedule 2 to the Migration Regulations: CB 395-399;
j)on 2 August 2014 Mr Singh sought review of the Delegate’s Decision by the Tribunal: CB 404;
k)by letter dated 23 December 2014 the Tribunal invited Mr Singh to appear at a hearing before the Tribunal on 12 March 2015 to give evidence and present arguments: CB 439-440;
l)by letter dated 25 February 2015 the Tribunal rescheduled the hearing to 30 April 2015: CB 517;
m)on 30 April 2015 Mr Singh appeared at a hearing before the Tribunal (“Tribunal Hearing”), assisted by his migration agent and a Punjabi/English interpreter: CB 533-535; and
n)on 8 May 2015 the Tribunal Decision was to affirm the Delegate’s Decision: CB 543.
Tribunal Decision
In the Tribunal Decision the Tribunal:
a)noted that, as discussed with Mr Singh at the Tribunal Hearing, it could only consider his claim to be a victim of family violence if it was satisfied that he was the spouse of Ms Tozer: CB 544 at [7];
b)referred to the definition of “spouse” and “married relationship” in s.5F of the Migration Act, and the considerations to be taken into account when forming an opinion as to those matters as set out in reg.1.15A(3) of the Migration Regulations: CB 544-545 at [9] (a copy of reg.1.15A(3) of the Migration Regulations appears as an attachment to the Tribunal Decision: CB 550);
c)accepted that Mr Singh and Ms Tozer were validly married on 18 April 2010: CB 545 at [10];
d)considered whether Mr Singh and Ms Tozer met the other requirements for a spousal relationship and found that:
i)Mr Singh was committed to his marriage but it had concerns relating to the commitment of Ms Tozer to the marriage: CB 545 at [11];
ii)Mr Singh and Ms Tozer met on 17 January 2010, moved in together on 25 February 2010, and married on 18 April 2010: CB 545 at [12];
iii)Ms Tozer told her family and friend’s she was engaged to Mr Singh however did not tell her mother and family of the marriage until March 2012: CB 545 at [12];
iv)Mr Singh returned to India to see his mother from December 2010 to February 2011, during which time Ms Tozer lived with her mother and when Mr Singh returned to Australia he and Ms Tozer moved into rental premises in Leederville where Mr Singh and Ms Tozer resided from January 2011 to January 2012: CB 545 at [14];
v)in September 2011 Ms Tozer told Mr Singh she had stolen money from an employer, and had been charged: CB 545-546 at [15], and in March 2012 Ms Tozer received a conditional suspended sentence: CB 546 at [17];
vi)from January 2012 to April 2012 Mr Singh and Ms Tozer lived apart, before moving into rental accommodation together in June 2012: CB 546 at [16];
vii)Mr Singh made 5 to 6 payments on behalf of Ms Tozer to Travelex as she did not have a job, and a joint account was opened in March 2010 and closed in May 2012, and there are utility bills in joint names in 2010: CB 546 at [18];
viii)problems arose between Mr Singh and Ms Tozer during Mr Singh’s mother’s visit from India from July to December 2012: CB 546-547 at [19]-[22];
ix)Ms Tozer wrote an apology letter to Mr Singh which indicated she did not want physical contact or to see him. The Tribunal did not accept Mr Singh’s claim that it was written in late December 2012 but rather found it was written in late 2011: CB 547 at [22]-[23];
x)Ms Tozer lived with Mr Singh part-time from December 2012: CB 547 at [24];
xi)in March 2013 Ms Tozer told Mr Singh that she had been in other relationships behind Mr Singh’s back since June 2012: CB 547-548 at [25]; and
xii)Mr Singh last saw Ms Tozer in May 2013, and last communicated with her on 19 June 2013 when she ended their relationship: CB 548 at [26];
e)found that it was not satisfied that there was a mutual commitment to a shared life to the exclusion of all others, specifically from Ms Tozer, and listed the following concerns:
i)that Ms Tozer did not tell her family about the marriage until March 2012, showing “a lack of commitment on her part from the outset of the marriage”: CB 548 at [28];
ii)found that Ms Tozer had written an “apology letter” to Mr Singh seeking a separation in late 2011, and considered this to be consistent with evidence that Mr Singh and Ms Tozer had lived separately in Australia from January 2012 to June 2012, together from June 2012 to September 2012, and together part-time from September 2012 until their separation in March 2013. The Tribunal considered the history of cohabitation to be indicative of Ms Tozer’s lack of commitment to the marriage: CB 548 at [29];
iii)accepted Mr Singh’s evidence the relationship was not exclusive from the time Ms Tozer began having relationships with other men in June 2012, although this was only disclosed to Mr Singh in March 2013: CB 548 at [30]; and
iv)noted that Mr Singh and Ms Tozer had indicated to the Department in May and June 2013 that they were in a relationship, which in the Tribunal’s view was misleading and damaging to their credibility: CB 548 at [31];
f)recorded that it had weighed its concerns against evidence indicating a degree of commitment on behalf of Ms Tozer (including joint bills, periods of cohabitation, a holiday in February 2012, and photographs of social occasions) and evidence in respect of the financial aspects of the relationship including Mr Singh’s financial support of Ms Tozer: CB 548-549 at [32], but was not satisfied, on balance, that Ms Tozer was committed to the marriage from the outset: CB 549 at [33];
g)on the basis of its findings the Tribunal “was not satisfied that at the time the visa application was made the parties were in a spousal relationship”: CB 549 at [34];
h)found that Mr Singh and Ms Tozer were not in a spousal relationship at the time of the Tribunal Decision: CB 549 at [35]; and
i)stated that it did not consider Mr Singh’s claims that he was a victim of family violence from July 2012 to 19 June 2013, as it was not satisfied that Mr Singh was Ms Tozer’s spouse within the meaning of the Migration Act: CB 549 at [36].
The Judicial Review Application
The Judicial Review Application was filed by Mr Singh prior to his obtaining legal representation, together with an affidavit affirmed on 5 June 2015 (“Mr Singh’s June 2015 Affidavit”) in which he said that the grounds were those in “Attachment No 1” annexed to Mr Singh’s June 2015 Affidavit, and further, said that the Tribunal “has not considered all aspects of my visa application”. Attachment No 1 was also annexed to the Judicial Review Application, and in it Mr Singh submitted as follows:
MRT’s decision was based on wrong dates mentioned by them in their decision record. This led them to incorrect conclusion in my case. I believe this was the jurisdictional error made by MRT in their decision making. Had they reviewed my case with correct dates and correct events their decision would have been appropriate in my case.
I bring to your notice the following facts of my case:
(a)In Paragraph 29, MRT mentioned in their decision that I went to India in December 2011 and returned to Perth in January 2012. These dates mentioned by MRT were entirely wrong. Also I wished to bring to your notice paragraph 18 MRT made the same error of mentioning date of my travel to India as December 2011. Based on these wrong dates coupled with other wrong observations (mentioned below) they concluded that I did not meet the criteria for receiving permanent visa. Please refer to paragraph 14 of their decision where in MRT mentioned the date December 2010 when I had gone to India and I returned from India to Perth in February 2011. These observations of MRT were contradictory and I believed it was jurisdiction error made by MRT.
(b)I give you the correct dates of my travel to India - I went to India in early December 2010 and returned to Perth in first week of February 2011. My ex-wife Constance and I lived in newly leased unit at West Leederville from February 2011 till January 2012 (I had provided documentary evidence). MRT missed this fact completely and I believed it was jurisdictional error. MRT mentioned that there was separation between Constance and I from December 2011 till June 2012, which was again wrong observation by MRT as no separation took place between Constance and I during that period. The fact was that we were still living together at West Leederville till January 2012 and after expiry of lease at West Leederville in January 2012, Constance and I were looking for another property of at least two bedrooms so that we would have accommodated my mother who was to visit us in June 2012 for six months. Unfortunately, we could not find appropriate property from February 2012 till 1st week of June 2012. I was temporarily living with my friend at his house in Belmont during February 2012 till April 2012 and Constance was regularly visiting me and stayed with me most of the nights during February 2012 till April 2012. My ex-wife Constance was temporarily living with her mother at her mother’s house in Swan View during the same period. In the month of May 2012 (the whole month of May 2012), I had moved to Constance’s mother’s house at Swan View as her mother insisted on me to live with them until we would find a suitable property to lease. Constance and I lived with her mother for one full month in May 2012 till we found suitable property to lease from 7/6/2012 in Bentley. MRT missed out this aspect of my case. This was very important as Constance and her mother accommodated me in their house as one of their close family members. Had there not been a genuine, continuous, ongoing, mutually committed and exclusive relationship between Constance and I, why would Constance and her mother allow me to stay in their house where Constance’s younger sister and brother were also living with them. I believed MRT did not review the dates properly and ended up in hurried decision without considering all facts of my case, which I believed, was jurisdictional error on part of MRT.
(c)I believed MRT mixed up the dates solely based on an undated letter written by my ex wife Constance referred to in paragraph 23. MRT concluded letter was written in December 2011 before I went to India in December 2011 which was entirely wrong. The fact was that Constance and l were living together happily at West Leederville in December 2011. The fact was that I went to India in early December 2010 and not in December 2011. MRT observations were based on assumptions that Constance wanted separation in December 2011 whereas fact was that we were living together and we had provided evidence to that effect. I believed it was jurisdictional error on part of MRT in their decision making.
(d)MRT concluded that I was committed in my relationship whereas my ex-wife Constance was not committed from outset of our marriage (paragraph 27 and 28) which was totally wrong conclusion of MRT in my case. Enclosed please find a handwritten letter dated 14/06/2010 by my ex-wife Constance which described our history of relationship in her own handwriting and own words. How MRT had concluded there was no commitment between us. I believed it was again a jurisdictional error by MRT where MRT failed to review the facts in correct manner according to law.
(e)The details and documents of family violence committed on me by my ex-wife Constance were submitted to DIBP and MRT did not take into consideration any one of them. DIBP had confirmed relationship was genuine and based on findings of Independent Expert (IE), DIBP refused permanent partner visa to me as IE concluded no family violence took place. One Govt. Authority DIBP confirmed the genuine relationship and other Govt. Authority MRT did not agree and I believed this kind of decision making itself was jurisdictional error. IE did not provide recording at the end of interview, neither DIBP, and DIBP provided report upon asking them (DIBP did not send me report of IE along with their letter). I believed such decision making was jurisdictional error.
(f)I am submitting this appeal application to Hon Judge, Federal Circuit Court Western Australia, Australia to seek justice and request Hon Judge, FCC to quash decision of MRT and direct them to take decision according to law.
(g)During course of appeal, I will submit further information. I request you to accept my appeal application and acknowledge it.
(Transcribed verbatim).
On 2 September 2015 a Registrar of this Court ordered (“Registrar’s Orders”), among other things, that:
a)Mr Singh file and serve on or before 26 November 2015 any amended application, and any further affidavits upon which he intends to rely at the hearing;
b)Mr Singh file and serve an outline of submissions not less than 42 days before the hearing.; and
c)the Minister file and serve an outline of submissions not less than 21 days before the hearing.
Mr Singh did not file an amended application or any further affidavits. Mr Singh did file written submissions on 24 February 2016, and submitted that the Tribunal fell into jurisdictional error because it denied him procedural fairness on the following three grounds:
Ground 1: The decision of the AAT that the applicant was not in a spouse relationship at any time was based on irrelevant considerations; and
Ground 2: That the AAT failed to consider whether the applicant was a victim of family violence; and
Ground 3: The AAT’s decision is tainted by ‘circumstantial’ factual error.
The Minister’s written submissions were filed on 22 February 2016, prior to Mr Singh’s written submissions, and therefore addressed grounds (a)-(e) as set out in Attachment No 1 as annexed to the Judicial Review Application filed 5 June 2015 and Mr Singh’s June 2015 Affidavit.
The Court will consider the grounds in the following manner:
a)ground 1 will include (c) and (d) from Attachment No 1;
b)ground 2 will include (e) from Attachment No 1;
c)ground 3 will include (a) and (b) from Attachment No 1; and
d)(f) and (g) from Attachment No 1 do not allege any jurisdictional error and will not form part of the judicial review.
Consideration
Jurisdictional error required
The Tribunal Decision may be set aside upon review if it involves jurisdictional error: 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 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. An error by the Tribunal will constitute jurisdictional error if 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 thereby affected resulting in a decision exceeding or failing to exercise the authority or powers given 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.
It is for the applicant to make out his case and establish jurisdictional error in the Tribunal Decision: VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [45] per Hill, Sundberg and Stone JJ; Maroun v Minister for Immigration & Citizenship [2009] FCA 1284; (2009) 112 ALD 424 at [15] per Jagot J.
The Court does not have jurisdiction to review the merits of the Tribunal Decision, or determine the applicant’s claim for the Permanent Partner Visa: 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 per Brennan CJ, Toohey, McHugh and Gummow JJ.
Jurisdictional error may also arise by reason of the Tribunal denying procedural fairness to which an applicant is entitled under the Migration Act: 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 at [18] per French CJ and at [48] per Hayne, Kiefel and Bell JJ; Migration Act, ss.420 and 422B. Fairness is not an abstract concept, but rather, essentially practical and the concern of the law is to prevent practical injustice: Re Minister for Immigration & Multicultural & Indigenous 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 CJ.
Ground 1 – irrelevant considerations
Applicant’s submissions
Mr Singh submitted that:
a)the Tribunal came to the conclusion that Mr Singh and Ms Tozer were never in a spousal relationship, at the time of the Partner Visa application and at the time of the Tribunal Decision: CB 549 at [34] and [35];
b)the Tribunal is duty bound to consider s.5F of the Migration Act together with reg.1.15A of the Migration Regulations;
c)the Minister must “consider all of the circumstances of the relationship” including matters set out in reg.1.15A(3) of the Migration Regulations which include financial aspects, nature of the household, social aspects of the relationship and nature of the persons’ commitment to each other;
d)cl.820.221(2)(a) of sch.2 to the Migration Regulations states that Mr Singh must be the spouse of Ms Tozer at the time of the Partner Visa application;
e)it was not open to the Tribunal to find that there was no spousal relationship at the time of application. The Tribunal failed to adequately consider the four aspects required by reg.1.15A of the Migration Regulations to meet the definition of “spouse”. Except for a brief discussion of the background of this case: CB 545 at [12], the Tribunal did not properly consider whether Mr Singh met the definition of spouse at the time of application with reference to:
i)financial aspects;
ii)nature of the household;
iii)social aspects of the relationship; and
iv)nature of the persons’ commitment to each other,
and only the last of these four aspects was briefly canvassed which, alone, is not enough because reg.1.15A(2) of the Migration Regulations requires that all four aspects be considered;
f)alternatively, as the Tribunal chose not to consider the time of application criteria as set out in cl.820.221 of sch.2 to the Migration Regulations they must be then considered to be met as evidenced by the Delegate’s Decision which granted the Temporary Partner Visa; and
g)Mr Singh was the spouse of Ms Tozer at the time of the Partner Visa application or, at the very least at some point in the relationship with Ms Tozer. The Tribunal did not make out that this was not the case with reference to reg.1.15A of the Migration Act. The Tribunal only considered the “spouse” definition issue in detail at the time of decision which is wrong because the application for the Temporary Partner Visa and the Permanent Partner Visa are made together.
Mr Singh made further oral submissions at hearing in relation to ground 1. The Court notes that those submissions potentially overlap with ground 3. Mr Singh submitted that the Tribunal’s finding that a spousal relationship did not exist was based on a number of irrelevant facts which were caused by a misinterpretation of dates:
a)at CB 546 at [18] of the Tribunal Decision the Tribunal incorrectly identified Mr Singh as being in India from December 2011 when in fact movement records show Mr Singh departed in 2010 and further at CB 548 at [29] the Tribunal again referred to Mr Singh having returned from India in December 2011 when in fact it was 2010;
b)three months of cohabitation between Mr Singh and Ms Tozer vanished and was not considered which was critical in terms of any spouse definition; and
c)at CB 547 at [23] the Tribunal placed significant weight on an apology letter from Ms Tozer to Mr Singh and came to adverse credibility findings against Mr Singh which are at odds with the chronological discrepancies in the Tribunal Decision.
Minister’s submissions (c) and (d)
The Minister submitted that:
a)in relation to Ms Tozer’s “apology letter”: CB 218-219, the Tribunal found that Mr Singh’s explanations of the chronological discrepancies identified by the Tribunal regarding the letter being written in December 2012 were not credible: CB 547 at [23];
b)the Tribunal’s finding that the apology letter was written in late 2011 was grounded upon probative material and logical grounds, and was open to the Tribunal on the material before it. It was open for the Tribunal to find, for the reasons it gave, that the apology letter was written in late 2011: CB 548 at [29]; and
c)it was open to the Tribunal to find, on the basis of the apology letter, that Ms Tozer wanted a period of separation from Mr Singh, and that this was indicative of Ms Tozer’s lack of commitment to the marriage.
The Minister further submitted that in relation to the Tribunal’s finding that Ms Tozer was not committed to the relationship from the outset: CB 548 at [27]-[28], and Mr Singh’s contention that the Tribunal failed to consider the unsworn statement made by Ms Tozer on 14 June 2010 submitted in support of the first stage of the Partner Visa application: CB 96-97:
a)the Tribunal was not obliged to refer to every piece of evidence before it: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 (“NAHI”) at [14] per Gray, Tamberlin and Lander JJ. Further, it does not follow that failure to refer to an item of evidence means that it has not been considered: Minister for Immigration & Border Protection v SZSRS [2014] FCAFC 16; (2014) 309 ALR 67 at [34] per Katzmann, Griffiths and Wigney JJ; SZEHN v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1389 (“SZEHN”) at [58] per Lindgren J (and cases there cited);
b)the Tribunal’s key concern was Ms Tozer’s lack of commitment to the relationship: CB 545 and 548 at [11] and [27]. In relation to the early period of the parties’ relationship, the Tribunal accepted that Ms Tozer did not tell her family about her marriage to Mr Singh until March 2012, almost 2 years after the marriage. The Tribunal found that this showed a lack of commitment on Ms Tozer’s part from the outset: CB 548 at [28];
c)the Tribunal weighed this concern against evidence indicating that Ms Tozer had some degree of commitment to the relationship. In evaluating the evidence, the Tribunal clearly had regard to material relating to the early period of the parties’ relationship, as is evident by its reference to 2010 utility bills and joint bank accounts: CB 548-549 at [32]; and
d)the Tribunal did not expressly refer to the 14 June 2010 statement in the Tribunal Decision. The Tribunal’s record of the history of the parties’ relationship: CB 545 at [12] is, however, consistent with the factual content of the 14 June 2010 statement. In circumstances where the Tribunal:
i)was aware of the factual matters contained in the 14 June 2010 statement;
ii)had set out its concerns regarding Ms Tozer’s commitment to the relationship during the early part of the relationship; and
iii)had weighed its concerns against evidence that indicated that Ms Tozer had a degree of commitment to the relationship,
the absence of a direct reference to the 14 June 2010 statement does not indicate error, but rather reflects the limited weight that the Tribunal placed on that document.
The Minister made further oral submissions at hearing:
a)that the apology letter was clearly written in 2011 and this was the only conclusion which was reasonably open to the Tribunal; and
b)there was no jurisdictional error by the Tribunal in considering whether Mr Singh and Ms Tozer were in a genuine relationship from the beginning.
Consideration – ground 1
Mr Singh’s contention is that the Tribunal’s finding that the applicant was not in a spousal relationship with Ms Tozer at any time was based on irrelevant considerations, namely that the Tribunal did not fulfil the obligations pursuant to reg.1.15A of the Migration Regulations or consider the time of application criteria as set out in cl.820.221 of sch.2 to the Migration Regulations. This ground was somewhat confusingly put by Mr Singh’s Counsel at hearing: Transcript pp.2-3, and it is the Court’s view that it is more apt to consider it in the context of an alleged failure by the Tribunal to take into account relevant considerations: Transcript, pp.2-3.
The Tribunal set out the relevant criteria applicable to the Permanent Partner Visa application, the primary criteria being set out in cl.801.221 of sch.2 to the Migration Regulations, as follows:
801.22 Criteria to be satisfied at time of decision
801.221 (1) The applicant meets the requirements of subclause (2), (2A), (3), (4), (5), (6) or (8).
(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
…
(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).
…
(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:
the applicant;
…
has suffered family violence committed by the sponsoring partner;
The Tribunal referred to Mr Singh having been granted a Temporary Partner Visa (under subclass 820) on 18 November 2010: CB 545 at [13] and 548 at [27].
The Tribunal noted Mr Singh’s claim of domestic violence, however, proceeded on the basis that the threshold issue for consideration was whether Mr Singh and Ms Tozer were in a spousal relationship as defined by s.5F of the Migration Act at the time of the decision pursuant to cl.801.221(2)(c) of sch.2 to the Migration Regulations: CB 544 at [7]-[8].
The statutory definition of “spouse” is in s.5F of the Migration Act, and provides as follows:
(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.
(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 sets out circumstances to be considered in relation to partner visas, and provides 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:
(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.
(4) If the Minister is considering an application for a visa of a class other than a class mentioned in subregulation (2), the Minister may consider any of the circumstances mentioned in subregulation (3).
The Tribunal referred to the circumstances of a spousal relationship as being that there must be a mutual commitment to a shared life as husband and wife to the exclusion of all others, the relationship must be genuine and continuing, and the couple must live together, or not live separately and apart on a permanent basis, and that regard must be had to all of these circumstances pursuant to s.5F(2)(a)-(d) of the Migration Act, and further that this included the circumstances set out in reg.1.15A(3) of the Migration Regulations: CB 544-545 at [9].
In the Tribunal Decision the Tribunal referred to and considered the circumstances of the relationship, as follows:
a)the financial aspects of the relationship including that:
i)whilst Ms Tozer was unemployed Mr Singh financially supported both of them, and after Ms Tozer was sentenced and ordered to repay the monies to Travelex, Mr Singh made 5 or 6 payments on her behalf as she could not pay: CB 546 at [18];
ii)Mr Singh and Ms Tozer opened a joint account in March 2010, which appeared to have been utilised on a regular basis from March 2010 to May 2010 and September 2011 to November 2011 then closed in May 2012: CB 546 at [18];
iii)utility bills were in Mr Singh’s and Ms Tozer’s joint names in 2010: CB 546 at [18];
iv)in May 2013 Mr Singh paid for a course for Ms Tozer: CB 548 at [26]; and
v)even though the Tribunal accepted the evidence of Mr Singh’s financial support of Ms Tozer in terms of the repayments on her behalf, the joint account, utility bills in joint names in 2010 and the payment of Ms Tozer’s course fees in May 2013, when weighed against other concerns the Tribunal was not satisfied that at the time of the decision the parties were in a spousal relationship and therefore did not meet cl.801.221(2)(c) of the Migration Regulations: CB 548-549 at [32] and [35];
b)the nature of the household including that:
i)Mr Singh and Ms Tozer moved into premises together in Leederville, confirmed by a letter from the landlord for the period between January 2011 to January 2012, consistent with the terms of the lease: CB 545 at [14];
ii)upon expiry of the Leederville property lease in January 2012 Mr Singh went to stay with his friend and Ms Tozer went to stay with her mother. At the end of April 2012 Mr Singh also moved to Ms Tozer’s mother’s house. On 7 June 2012 Mr Singh and Ms Tozer moved into rental accommodation in readiness for the arrival of Mr Singh’s mother from India a few days later: CB 546 at [16];
iii)from September 2012 Ms Tozer divided her time equally between the rental accommodation with Mr Singh and her mother’s house: CB 547 at [21];
iv)Mr Singh claimed that after his mother returned to India in December 2012 he wanted Ms Tozer to move back and live full time with him, but that Ms Tozer refused and chose to live with Mr Singh part-time: CB 547 at [25]; and
v)found that after considering the living arrangements, in particular the periods when Mr Singh and Ms Tozer did not live together and only lived together on a part-time basis, the Tribunal was not satisfied that Ms Tozer had a genuine commitment to the marriage: CB 549 at [33];
c)the social aspects of the relationship including that:
i)two friends of Mr Singh attended the wedding, but no other family or friends attended, and Ms Tozer did not tell any of her family or friends of the marriage, and it was not until March 2012, having been married on 18 April 2010, that Ms Tozer told her mother and family that she was married to Mr Singh: CB 545 at [12];
ii)Mr Singh and Ms Tozer went on holiday together in Melbourne in late February 2012: CB 545-546 at [15];
iii)photographs of Mr Singh and Ms Tozer together indicate that they had shared some social occasions together in the company of others: CB 548-549 at [32]; and
iv)after considering the evidence, the fact that Ms Tozer did not tell her family of the marriage to Mr Singh until almost two years after the marriage, was indicative of a lack of commitment on the part of Ms Tozer from the outset of their marriage: CB 548 at [28]; and
d)the nature of Mr Singh’s and Ms Tozer’s commitment to each other including that:
i)it had concerns relating to the commitment of Ms Tozer to the marriage: CB 545 at [11];
ii)Mr Singh met Ms Tozer on 17 January 2010 and after 6 or 7 days, and on their third date they declared their love for one another and moved in together on 25 February 2010 and were then married on 18 April 2010: CB 545 at [12];
iii)Mr Singh and Ms Tozer moved into a property in Leederville together and both resided there from January 2011 to January 2012, consistent with the terms of the lease: CB 545 at [14];
iv)in January 2012 when the lease expired Mr Singh stayed with a friend and Ms Tozer stayed with her mother until Mr Singh joined her at her mother’s in April 2012 and then they both moved to rental accommodation on 7 June 2012: CB 546 at [16];
v)in September 2012 Ms Tozer returned to live with her mother for a few days at a time, whilst still living with Mr Singh for half the time: CB 547 at [21];
vi)Mr Singh claimed that Ms Tozer handed him an apology letter in late December 2012 indicating that she did not want any physical contact with him, and did not want to see him, and that this was the first time Ms Tozer had expressed a wish to separate. It also contained reference to dates of birthdays and the new year which the Tribunal suggested to Mr Singh was indicative that the letter was written in 2011 not 2012, however Mr Singh refuted this: CB 547 at [23];
vii)in March 2013 Ms Tozer told Mr Singh that she had been in other relationships behind his back since June 2012 and currently had a boyfriend (her third during her “relationship” with Mr Singh), and that at a Hindi movie night she had been texting her first boyfriend, and that when she was out at night when Mr Singh’s mother was staying, Ms Tozer had been going out with her boyfriend: CB 547-548 at [25]; and
viii)found that after considering the evidence in relation to their commitment to each other, in particular the lack of commitment on behalf of Ms Tozer, that Ms Tozer did not have a commitment to the marriage: CB 548 at [28]-[31], the two year delay in telling her family of the marriage, the letter requesting separation from Mr Singh in late 2011, the living arrangements from January 2012 to June 2012 and September 2012 and March 2013, her relationships with other men from June 2012, and the verbal abuse and threats from July 2012 directed at Mr Singh, all weighed against any commitment by Ms Tozer to Mr Singh: CB 548-549 at [27]-[33].
The Court further notes:
a)with regard to Ms Tozer’s 14 June 2010 statement:
i)it is not necessary for, or a requirement that, the Tribunal refer to every piece of evidence before it: NAHI at [14] per Gray, Tamberlin and Lander JJ, and failure to refer to an item of evidence does not mean that that item of evidence has not been considered: SZSRS at [34] per Katzmann, Griffiths and Wigney JJ; SZEHN at [58] per Lindgren J; and
ii)the Tribunal’s reference to the history of Mr Singh’s and Ms Tozer’s relationship: CB 545 at [12], is consistent with the factual content of the 14 June 2010 statement clearly indicating that the 14 June 2010 statement was considered even though it was not referred to in the Tribunal Decision;
b)with regard to the Tribunal’s finding that it was not satisfied that at the time of the decision the parties were in a spousal relationship, and therefore did not meet cl.801.221(2)(c) of sch.2 to the Migration Regulations: CB 549 at [35]:
i)the Tribunal was correct to apply this at the time of the decision as the primary criteria to be satisfied set out in cl.801.22 of sch.2 to the Migration Regulations has no criteria to be satisfied at time of application pursuant to cl.801.21 of sch.2 to the Migration Regulations; and
ii)the Tribunal’s finding that at the time of the Partner Visa application the Tribunal was not satisfied that the parties were in a spousal relationship: CB 549 at [34] was also open to the Tribunal pursuant to cl.820.211 (2)(a)(i) of sch.2 to the Migration Regulations, as the Tribunal had raised with Mr Singh concerns in relation to Ms Tozer’s commitment to the relationship from the outset: CB 545 at [11] and 548 at [27] and found that Ms Tozer was not committed to the relationship from the outset: CB 549 at [33]; and
c)with regard to the apology letter from Ms Tozer to Mr Singh it was open for the Tribunal to make adverse findings against Mr Singh. The Tribunal put to Mr Singh that the dates contained within the apology letter referring to Mr Singh’s 29th birthday and Ms Tozer’s 21st birthday and new year in advance and suggested the apology letter was in fact written in late 2011 not 2012 as claimed by Mr Singh. Mr Singh refuted this and stated that Ms Tozer mixed up birthdays, however, the Tribunal did not accept that Ms Tozer could be mistaken about her impending 21st birthday if she had already celebrated it: CB 547 at [23].
The Tribunal is under an obligation pursuant to reg.1.15A of the Migration Regulations and “must consider all of the circumstances of the relationship, including the matters set out in subregulation (3)”: see for example, Fobizi v Minister for Immigration & Anor [2017] FCCA 1738; (2017) 323 FLR 226 at [16]-[23] per Judge Lucev. It is evident from the Tribunal Decision that the Tribunal considered all the circumstances of the relationship when forming the opinion that Mr Singh and Ms Tozer were not in a spousal relationship: see [24]-[26] above. On the basis of its consideration of all the circumstances relevant to the case, the Tribunal determined the relationship between Mr Singh and Ms Tozer by reference to the statutory definition of “spouse” in s.5F of the Migration Act, and found that it was not satisfied a spousal relationship existed between them at the time of the application or at the time of the decision. There was, therefore, no failure by the Tribunal to have regard to any relevant consideration, and, for the sake of clarity, no regard had to any irrelevant consideration. No jurisdictional error is therefore established by ground 1.
Ground 2 – failure to consider claim of family violence
Applicant’s submissions
Mr Singh submitted that:
a)the Tribunal did not consider the family violence claim raised by him, and did so on the basis that he was never the spouse of Ms Tozer, and therefore the Tribunal found that it did not need to consider the family violence claim: CB 549 at [36];
b)following on from ground 1 above, the Tribunal did not make out that Mr Singh was not the spouse of Ms Tozer for the entire duration of the relationship, and the Tribunal only turned its mind to this fact briefly in the Tribunal Decision: CB 545 at [12], and without due consideration of the matters in reg.1.15A of the Migration Regulations: CB 545. Thus, the Tribunal was obliged to consider the family violence claims as required by cl.801.221(6) of Sch.2 of the Migration Regulations; and
c)therefore, the Tribunal failed to consider the claim of family violence when it ought to have done so.
Minister’s submissions (e)
The Minister submitted that:
a)on 24 September 2010, in the context of considering Mr Singh’s Temporary Partner Visa application, the Delegate was satisfied that Mr Singh and Ms Tozer were in a spousal relationship as defined by the Migration Regulations: CB 117;
b)on 18 July 2014, in the context of Mr Singh’s Permanent Partner Visa application, a different delegate of the Minister was satisfied that Mr Singh was the spouse of Ms Tozer prior to the relationship breakdown: CB 396;
c)the criteria for the grant of a Permanent Partner Visa in circumstances where the relationship has broken down due to family violence relevantly requires that the “applicant would meet the requirements of subclause (2) or (2A) except that the relationship between Mr Singh and Ms Tozer had ceased” in circumstances where the applicant “has suffered family violence committed by the sponsoring partner”: cl.801.221(6)(b) of sch.2 to the Migration Regulations; and
d)the Tribunal was not satisfied that the parties were in a spousal relationship at the time of the Partner Visa application, or at the time of the Tribunal Decision: CB 549 at [34]-[35]. In the context of the Tribunal’s framing of the “threshold question” as to whether “Mr Singh was the spouse of the sponsor”: CB 544 at [7], the Tribunal’s statement that:
i)it did not consider Mr Singh’s family violence claims because it was not satisfied that “the review applicant was the spouse of the sponsor within the meaning of the Act”; and
ii)its finding that Mr Singh did not satisfy the criteria for the grant of a Permanent Partner Visa: CB 549 at [37],
it is apparent that the Tribunal was not satisfied that Mr Singh and Ms Tozer were ever in a spousal relationship. On this basis, the Tribunal considered that Mr Singh did not meet the requirement in cl.801.221(2)(c) of sch.2 to the Migration Regulations that the applicant “is the spouse or de facto partner of the sponsoring partner”, and therefore Mr Singh was unable to meet the requirements of the family violence provisions, and in particular cl.801.221(6)(b) of sch.2 to the Migration Regulations.
The Minister further submitted that:
a)in Latt v Minister for Immigration & Anor [2007] FMCA 766 (“Latt”) the applicant in that case alleged that the Tribunal, in deciding to not grant a Partner (Migrant) (Class DC) subclass 100 visa, erred by failing to take into account the grant of a temporary spouse (Class UF) visa subclass 309 visa, the grant of which entailed a finding that as at the date of application the parties were in a genuine spousal relationship: Latt at [24] per McInnis FM. The Federal Magistrates Court rejected that argument, and in Latt at [31]-[32] per McInnis FM found as follows:
31. ... I can see no basis upon which it can be suggested there is jurisdictional error simply because the Tribunal did not have regard to the delegate’s decision or that it otherwise fell into error by making an assessment of the relevant criteria for the partner visa which led it to reach a contrary conclusion to the conclusion of the delegate. The delegate had only to consider material in a somewhat superficial manner for the grant of a temporary visa. That process is entirely different to the process to be undertaken upon consideration of the criteria for the grant of a partner visa.
32. In my view there is no legal basis upon which it could be suggested that the decision to grant a temporary visa, albeit, involving some assessment of the facts then before the delegate should somehow be automatically binding and/or even taken into account by another delegate when considering the criteria for the grant of a partner visa.
33. I do not accept that the grant of a temporary visa in any way should act as a substitute for the reasoning process to be undertaken when assessing the relevant criteria for the grant of a partner visa;
b)similarly, in the present matter the Tribunal was not bound to arrive at the same assessment of the facts as the delegates who considered Mr Singh’s Temporary and Permanent Partner Visa applications. While the current situation differs from Latt in that there was an earlier delegate’s finding that Mr Singh was the spouse of Ms Tozer (prior to the relationship breakdown), it is similar to Latt in that the delegate’s consideration of the issue was “somewhat superficial”;
c)the Tribunal was obliged to review the Delegate’s Decision: Migration Act, s.348(1), and to arrive at findings on material questions of fact: Migration Act s.368(1)(c), which relevantly included whether the criteria for grant of a Permanent Partner Visa had been satisfied: Migration Act s.65(1)(ii);
d)the Tribunal raised with Mr Singh that it was required to be satisfied that Mr Singh was the spouse of Ms Tozer: CB 544 at [7]. The Tribunal was not required to accept uncritically Mr Singh’s claim in this respect: Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437; (1994) 124 ALR 265; (1994) 35 ALD 1; FCR at 451 per Beaumont J; Minister for Immigration & Ethnic Affairs v Guo & Anor (1997) 191 CLR 559; (1997) 71 ALJR 743; (1997) 144 ALR 567; (1997) 48 ALD 481, CLR at 596 per Kirby J; Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155; (1985) 65 ALR 549; FCR at 169-170 per Wilcox J; and
e)the Tribunal’s finding that Mr Singh was never the spouse of Ms Tozer meant that Mr Singh could not satisfy the criteria for grant of a Permanent Partner Visa in cl.801.221(2)(c) or (6)(b) of sch.2 to the Migration Regulations. In those circumstances, the Tribunal was correct to find that the question of the claimed family violence did not arise: Kaur v Minister for Immigration & Border Protection [2014] FCA 1251 (“Kaur”) at [43]-[44] per Murphy J.
Consideration – ground 2
Mr Singh’s contention is that the Tribunal made a jurisdictional error in its finding that Mr Singh and Ms Tozer were not in a spousal relationship, and therefore it follows that the Tribunal was obliged to consider the claim of family violence pursuant to cl.801.221(6) of sch.2 to the Migration Regulations and failed to do so.
The Tribunal found that Mr Singh did not meet the requirements of cl.801.221(2)(c) of sch.2 to the Migration Regulations, and therefore Mr Singh was unable to meet the requirements of the family violence provisions, in particular cl.801.221(6)(b) of sch.2 to the Migration Regulations: CB 549 at [36].
The Court notes that:
a)in Kaur at [43]-[44] per Murphy J, the Federal Court observed that:
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.
b)this Court had to consider family violence in circumstances where a husband was alleging that his marital relationship with his ex-wife was genuine in Alsalem v Minister for Immigration & Anor [2013] FCCA 1407 (“Alsalem”) at [16]-[20] per Judge Cameron, where the Court observed 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.
The passages cited above from 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.
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 [28]-[36] per Judge Lucev; Collins v Minister for Immigration [2003] FMCA 571 at [42] per McInnes FM; Guven v Minister for Immigration & Anor [2006] FMCA 311 at [22] per Hartnett FM.
The Court is of the view that the Tribunal was not satisfied that Mr Singh and Ms Tozer were in a genuine spousal relationship at the time of the Temporary Partner Visa application or at the time of the decision. That was a finding open on the evidence for the reasons set out at [24]-[27] above. In the circumstances, the Tribunal was not, therefore, obliged to consider the issue of family violence.
In the above circumstances, ground 2 is not made out, and does not establish jurisdictional error by the Tribunal.
Ground 3 – errors of fact
Applicant’s submissions
Mr Singh submitted that:
a)that the Tribunal made a number of factual errors, relating to:
i)dates of cohabitation;
ii)departure and arrival dates; and
iii)financial aspects of Mr Singh’s and Ms Tozer’s relationship;
b)although most of the individual errors themselves are not great, they “taint the well” in terms of the Tribunal Decision overall; and
c)of most significance is a three month window of cohabitation which essentially “disappeared”. In the context of this case, particularly given that living arrangements formed a significant part of the Tribunal Decision, this is not insignificant and could have led to a different outcome.
Mr Singh made other oral submissions in relation to ground 1, some of which applied to ground 3, at hearing: see [14] above.
Minister’s submissions (a) and (b)
The Minister submitted that:
a)Mr Singh alleges that the Tribunal made errors regarding the dates of Mr Singh’s travel to India and the length of the parties’ cohabitation from February 2011 to June 2012;
b)an error of fact alone does not amount to jurisdictional error: Attorney-General for the State of New South Wales v Quin (1990) 170 CLR 1; (1990) 64 ALJR 327; (1990) 33 IR 263; (1990) 93 ALR 1; CLR at 35-36 per Brennan J; SZDFZ v Minister for Immigration & Citizenship & Anor [2008] FCA 390; (2008) 168 FCR 1; (2008) 100 ALD 575 (“SZDFZ”) at [11] and [40] per Flick J; WZATF v Minister for Immigration & Anor [2014] FCCA 333 at [19] per Judge Lucev. To amount to jurisdictional error, an error of fact must have had a substantive effect on the way in which the Tribunal proceeded to assess Mr Singh’s claims: SZMIA v Minister for Immigration & Citizenship [2008] FCA 1909 at [38] per Rares J;
c)Mr Singh’s movement records, which were before the Tribunal relevantly indicate that Mr Singh departed Australia on 19 November 2010 and returned on 1 February 2011: CB 150 and 422;
d)the Tribunal recorded that Mr Singh returned to India from December 2010 to February 2011. Notwithstanding the Tribunal’s incorrect reference to December instead of November, the Tribunal clearly appreciated that Mr Singh had returned to India for a period of months in late 2010/early 2011: CB 545 at [14]. The Tribunal incorrectly referred to Mr Singh being in India from December 2011 (instead of December 2010) in the context of the Tribunal’s recital of Ms Tozer’s employment history, and financial aspects of the parties’ relationship: CB 546 at [18];
e)regarding the parties’ cohabitation, the Tribunal referred to the parties moving in together on 25 February 2010: CB 545 at [12], recorded that the parties resided at a Leederville property from January 2011 to January 2012: CB 545 at [14], and recorded Mr Singh’s claim that the parties lived with Ms Tozer’s mother from April 2012 and then together in rental accommodation from 7 June 2012: CB 546 at [16]. However, the Tribunal found that the parties did not cohabitate from December 2011 until June 2012, and incorrectly again referred to Mr Singh returning to India in December 2011: CB 548 at [29];
f)the Tribunal’s finding at [29] clearly involved factual error. However, as a result of the Tribunal’s errors at [29] the Tribunal failed to take into account, at most, 3 months of cohabitation; and
g)the Tribunal was required to consider the nature of the parties’ commitment to each other, including the length of time during which the persons have lived together: reg.1.15A(3)(d)(ii) of the Migration Regulations. However, in circumstances where the Tribunal had referred to and considered the correct travel and cohabitation dates in the Tribunal Decision, and given the length of the entirety of the parties’ entire relationship (from February 2010 to March 2013), the Tribunal’s factual error does not establish jurisdictional error in the Tribunal’s consideration of the nature of the parties’ commitment.
The Minister made further oral submissions at hearing that:
a)the additional five weeks of cohabitation in the context of the whole of the Tribunal Decision could not have led the Tribunal to reach a different conclusion; and
b)any factual error that the Tribunal might have made did not amount to jurisdictional error.
Consideration – ground 3
Mr Singh’s contention is that the Tribunal made a jurisdictional error in its findings which were based on factual errors it made regarding the dates of cohabitation of Mr Singh and Ms Tozer, Mr Singh’s departure and arrival dates regarding his trip to India and the financial aspects of Mr Singh’s and Ms Tozer’s relationship and as such might have led to a different Tribunal Decision.
In the Tribunal Decision the Tribunal referred to:
a)the dates of cohabitation in the following manner:
i)that Mr Singh and Ms Tozer moved in together on 25 February 2010: CB 545 at [12],
ii)whilst Mr Singh was in India from December 2010 until February 2011 Ms Tozer resided with her mother, however when Mr Singh returned they moved into the Leederville property together and resided there from January 2011 to January 2012: CB 545 at [14],
iii)at the end of the lease for the Leederville property in January 2012, Mr Singh went to live with his friend and Ms Tozer with her mother and at the end of April 2012 Mr Singh went to live with Ms Tozer’s mother also. In June 2012 Mr Singh and Ms Tozer moved in together to rental accommodation in readiness for the arrival of his mother from India: CB 546 at [16];
iv)in September 2012 Ms Tozer moved back to her mother’s and only lived half the time with Mr Singh: CB 547 at [21]; and
v)in December 2012 Mr Singh asked Ms Tozer to move back in with him fulltime and she refused to do continuing to live with him part-time: CB 547 at [24]; and
b)the dates of Mr Singh’s travel to India in the following manner:
i)that Mr Singh returned to India from December 2010 to February 2011: CB 545 at [14];
ii)that Ms Tozer stopped working around December 2011 when Mr Singh went to India: CB 546 at [18]; and
iii)that Mr Singh returned to India alone in December 2011 and that upon his return from India in January 2012 he lived with a friend and that the parties lived separately from January 2012 (when the applicant returned from his trip to India): CB 548 at [29].
The Court notes that:
a)Mr Singh’s movement records, which were before the Tribunal, relevantly indicate that Mr Singh departed Australia on 19 November 2010 and returned on 1 February 2011: CB 150 and 422 and
b)Mr Singh claimed to have gone to stay with Ms Tozer’s mother at the end of April 2012 until June 2012, which it appears the Tribunal also noted in the Tribunal Decision at CB 546 at [16].
The Court notes that:
a)the High Court in Re Minister for Immigration & Multicultural Affairs; Ex parte Cohen [2001] HCA 10; (2001) 75 ALJR 542; (2001) 177 ALR 473 at [35] per McHugh J stated that:
35….A factual error made in the course of making a determination or decision is unlikely to be a jurisdictional error unless the particular fact is a jurisdictional fact. Courts should be slow to find that an erroneous finding of fact or an error of reasoning in finding a fact, made in the course of making a decision, demonstrates that an administrative tribunal so misunderstood the question it had to decide that its error constituted a jurisdictional error.
b)the Full Court of the Federal Court in Minister for Immigration & Citizenship v SZNPG [2010] FCAFC 51; (2010) 115 ALD 303 at [28] per North and Lander JJ stated that:
28 However, an error of fact based on a misunderstanding of evidence or even overlooking an item of evidence in considering an applicant’s claims is not jurisdictional error, so long as the error, whichever it be, does not mean that the RRT has not considered the applicant’s claim: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630; Thirukkumar v Minister for Immigration and Multicultural Affairs [2002] FCAFC 268; Rezaei v Minister for Immigration and Multicultural Affairs [2001] FCA 1294.
c)the Federal Court in SZDFZ at [41]-[43] per Flick J stated that:
41. The present finding of the Tribunal, however, involves no resolution of competing facts and no process of reasoning, be it logical or illogical. More importantly, it is a finding which positively misstates what had occurred. This Court, as is the Federal Magistrates Court, is heavily dependent upon the findings and reasons of the Tribunal being accurately set forth in the decision of the Tribunal. Where an error does occur, it may not usually matter how it occurred. No submission is advanced in the present appeal that the finding of the Tribunal evidences a reasonable apprehension of bias — as may have been expected if reliance was to be placed upon a submission, for example, that the Tribunal was committed to reaching a particular conclusion regardless of the evidence given.
42. But what does matter is whether such an error, when it does occur, can be characterised as a jurisdictional error. In the present circumstances it is considered that it can. In SFGB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALD 402 Mansfield, Selway and Bennett JJ observed:
[19] … If the Tribunal makes a finding and that finding is a critical step in its ultimate conclusion and there is no evidence to support that finding then this may well constitute a jurisdictional error …
And, in SZDTZ v Minister for Immigration and Citizenship [2007] FCA 1824 Greenwood J reviewed some of the authorities (including SFGB 77 ALD 402) and concluded:
[31 The central matter is this.
[32] A determination of the Tribunal as to a state of satisfaction or otherwise, of the relevant criteria or criterion in question, that is based upon a finding of fact or inferences drawn from facts, not based on logical or rational grounds, will give rise to an error of jurisdiction if there is no evidence to support the finding or no proper basis for drawing the inference; or, if there be some evidence, although inadequate, reliance by the Tribunal upon that inadequate evidence gives rise to an inference that the Tribunal has misconceived the test or is not, in reality, satisfied of the requisite matters, as a result of which there has been only a purported, rather than a real, exercise of the power conferred upon the Tribunal.
43. Although the circumstances in which such errors as that which the Tribunal committed in the present case may be rare, when they do occur this Court should intervene unless it is satisfied that the error was non-prejudicial…
Essentially, there are three categories of factual error asserted by Mr Singh, namely:
a)errors in relation to Mr Singh’s travel dates to India;
b)errors in relation to the financial aspects of the relationship between Mr Singh and Ms Tozer; and
c)errors regarding the period of cohabitation of Mr Singh and Ms Tozer from December 2011 to June 2012.
Save as to the period of “lost” cohabitation discussed at [49]-[55] below, the Court is of the view that the factual errors made by the Tribunal regarding Mr Singh’s travel dates to India at:
a)CB 545 at [14]: the dates of Mr Singh’s travel should have been 19 November 2010 to 1 February 2011, and then in the same paragraph the Tribunal referred to Mr Singh and Ms Tozer residing together from January 2011 to January 2012;
b)CB 546 at [18]: the reference to Mr Singh travelling to India in December 2011, which was in the context of the Tribunal’s recital of Ms Tozer’s employment history and the financial aspects of Mr Singh’s and Ms Tozer’s relationship; and
c)CB 548 at [29]: the Tribunal’s finding was that Mr Singh and Ms Tozer did not cohabit from December 2011 to June 2012 due to Mr Singh being in India and that they both lived separately from January 2012 (when the Tribunal says the applicant returned from his trip),
are not prejudicial to Mr Singh, particularly as when the Tribunal notes the evidence indicating that Ms Tozer had some degree of commitment to the relationship it refers to both Mr Singh and Ms Tozer residing at the Leederville property together from January 2011 to late 2011 and, for relevant purposes, makes no other references to the dates of his travel in India: CB 548-549 at [32]-[33].
Mr Singh did not elaborate on what factual errors were purported to have been made by the Tribunal in relation to the financial aspects of Mr Singh and Ms Tozer: accordingly, the Court cannot take this further, but notes that the financial aspects of the relationship were extensively discussed by the Tribunal: see [25(a)] above.
The Tribunal Decision sets out the considerations which led the Tribunal to determine that Mr Singh and Ms Tozer were not in a spousal relationship. Save for the issue of cohabitation between December 2011 and June 2012, the Court is of the view that the Tribunal Decision is unaffected by jurisdictional error. It is plain however that the Tribunal has made a significant factual error with respect to the period of cohabitation in finding that Mr Singh and Ms Tozer did not cohabit at all between December 2011 and June 2012. In relation to cohabitation from December 2011 to June 2012 it is necessary to note that the Tribunal observed that:
a)at CB 548 at [29]:
… the evidence that they both lived separately from January 2012 (when the applicant returned from his trip to India) to June 2012 is consistent with this. [A reference to the December 2011 letter from Ms Tozer indicating that she wanted a period of separation from the applicant]. The Tribunal considers that the parties’ history of co-habitation is indicative of the sponsor’s lack of commitment to the marriage.
b)at CB 549 at [33] having referred to Ms Tozer not telling her family of the marriage for nearly two years, and of her having requested a period of separation in late 2011, observed that:
… and that this is why they did not live together from January 2012 to June 2012 …
c)at CB 549 at [35]:
… given these findings the Tribunal is not satisfied that at the time of this decision the parties are in a spousal relationship. Therefore the applicant does not meet cl.801.221(2)(c).
It is important in this regard to note the Minister’s submissions at [30]-[35] which are as follows:
30. The applicant's movement records, which were before the Tribunal (CB 150, 422), relevantly indicate that the applicant departed Australia on 19 November 2010 and returned on 1 February 2011.
31. At [14] (545) the Tribunal recorded that the applicant returned to India from December 2010 to February 2011. Notwithstanding the Tribunal's incorrect reference to December instead of November, the Tribunal clearly appreciated that the applicant had returned to India for a period of months in late 2010/early 2011.
32. At [18] (CB 546) the Tribunal incorrectly referred to the applicant being in India from December 2011 (instead of December 2010) in the context of the Tribunal's recital of the sponsor's employment history, and financial aspects of the parties' relationship.
33. Regarding the parties' co-habitation, the Tribunal referred to the parties moving in together on 25 February 2010 (CB 545 at [12]), recorded that the parties resided at a Leederville property from January 2011 to January 2012 (CB 545 at [14]), and recorded the applicant's claim that the parties lived with the sponsor's mother from April 2012 and then together in rental accommodation from 7 June 2012 (CB 546 at [16]).
34. However, at [29] (CB 548) the Tribunal found that the parties did not cohabitate from December 2011 until June 2012, and incorrectly again referred to the applicant returning to India in December 2011.
35. The Tribunal's finding at [29] clearly involved factual error. However, as a result of the Tribunal's errors at [29] the Tribunal failed to take into account at most 3 months of cohabitation.
It is also important to note that Counsel for the Minister, quite properly, indicated that at CB 546 at [16] the Tribunal “did refer to these matters accurately” when it said as follows:
16. When the lease on their rental accommodation expired in January 2012 the applicant went to stay with his friend and the sponsor went to stay with her mother. He claims that he did not want to burden the sponsor’s mother by going to stay with her. He claims that whilst he was staying at his friends the sponsor would come over and stay with him. He claimed that at the end of April 2012 he went to stay with the sponsor’s mother. On 7 June 2012 the parties moved into rental accommodation, in readiness for the arrival of the applicant’s mother from India, a few days later.
It follows from the facts as accurately set out by the Tribunal, and as conceded by Counsel for the Minister, that Mr Singh and Ms Tozer did cohabit:
a)during December 2011 and for at least part of January 2012;
b)periodically, for no more than a few days at a time, between February and the end of April 2012;
c)from the end of April 2012 until 6 June 2012 at Ms Tozer’s mother’s house; and
d)from 7 June 2012 to the end of June 2012 (and thereafter) in rental accommodation secured in readiness for the arrival of Mr Singh’s mother from India.
There is, therefore, no evidentiary basis for the finding the Tribunal made that Mr Singh and Ms Tozer did not cohabit at all from December 2011 to June 2012 and therefore no proper basis for the Tribunal finding that they did not live together during that period: CB 548-549 at [29], [32] and [33].
As indicated above the Tribunal Decision is, but for this issue of cohabitation between December 2011 and June 2012, both unequivocal and unimpeachable in its findings as to the spousal relationship between Mr Singh and Ms Tozer. Plainly the error with respect to the period of cohabitation is a factual error. It is, however, a factual error in relation to one of the specified criteria for consideration under reg.1.15A(3) of the Migration Regulations (and in particular reg.1.15A(3)(d)(ii) of the Migration Regulations). Thus, the period of cohabitation is a mandatory relevant criteria for the purposes of the Tribunal determining its state of satisfaction or otherwise as to whether the Permanent Partner Visa ought to have been granted. In that regard the error is significant, and it is necessary to observe that it relates to a not insignificant period of seven months during which the Tribunal found that Mr Singh and Ms Tozer did not cohabit at all, at a time at which the “relationship” between Mr Singh and Ms Tozer had been of between 23 and 30 months duration, when in fact during the period of seven months from December 2011 to June 2012 Mr Singh and Ms Tozer did cohabit for something more than three months: see [52] above.
In the circumstances, if the Tribunal had made correct factual findings it would have had to have assessed the significance of the period of “lost” cohabitation in the context of a relationship which was between 23 and 30 months old, and in respect of which the period of lost cohabitation therefore formed a significant part. Likewise, it would also have had to assess the significance in the context of an ongoing relationship of the fact that Mr Singh cohabited with Ms Tozer with his mother-in-law for about a month during that period, and that Ms Tozer then cohabited with Mr Singh and her mother-in-law visiting from India for three weeks at the end of that period. It may be that had the Tribunal assessed those matters the Tribunal Decision would have been no different, but it is also possible that it may have tipped the balance in favour of the Tribunal granting the Permanent Partner Visa, albeit that the latter does appear unlikely. It is not, however, for the Court to speculate on the outcome. It suffices for present purposes to say that the Tribunal’s factual errors are sufficiently significant to constitute jurisdictional error because they go directly to one of the relevant criteria, in respect of which the Tribunal made findings adverse to Mr Singh, in circumstances where there was no evidence to support the erroneous factual finding that Mr Singh and Ms Tozer did not cohabit at all between December 2011 and June 2012, and which affected the Tribunal Decision. In those circumstances, ground 3 establishes jurisdictional error in the Tribunal Decision.
Conclusions and orders
The Court has concluded that the Tribunal Decision is affected by jurisdictional error as asserted in ground 3. It follows, therefore, that the applicant is entitled to prerogative relief by way of a writ of certiorari quashing the Tribunal Decision, and a writ of mandamus requiring the Tribunal to determine the application made to it according to law.
The Court will hear the parties as to costs.
I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 12 July 2019
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