Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 114
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 114
File number(s): SYG 164 of 2017 Judgment of: JUDGE MANOUSARIDIS Date of judgment: 25 February 2022 Catchwords: MIGRATION – application for remedies under s 476 of the Migration Act 1958 (Cth) in relation to a decision of the Administrative Appeals Tribunal (Tribunal) affirming a decision not to grant a Partner visa on the ground that the applicant did not satisfy criterion 3001 – whether the Tribunal made a jurisdictional error by failing to assess the prospects of the applicant being able to satisfy a non-judicially determined claim of family violence – whether the Tribunal made a jurisdictional error by not considering that if criterion 3001 is not waived it would be practically impossible for the applicant to satisfy the criteria for the grant of a Partner visa – application dismissed. Legislation: Migration Act 1958 (Cth) ss 5(1), 5F, 476
Migration Regulations 1994 (Cth) regs 1.15A, 1.21, 1.22(1), 1.23, 1.24, 1.25, Sch 2, cls 820.211, 820.221(2), 820.221(3), Sch 3, criterion 3001
Cases cited: Kaur v Minister for Immigration & Anor [2020] FCCA 1081
Minister for Immigration and Border Protection v SZMTA; CQZ15 v Minister for Immigration and Border Protection; BEG15 v Minister for Immigration and Border Protection [2019] HCA 3
Sothy v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 3435
Division: General Number of paragraphs: 57 Date of hearing: 3 June 2021 Place: Sydney Counsel for the Applicant: Ms U Okereke-Fisher Solicitor for the Applicant: ABU Legal Counsel for the First Respondent: Mr T Reilly Solicitor for the First Respondent: Sparke Helmore Lawyers ORDERS
SYG 164 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MANPREET SINGH
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE MANOUSARIDIS
DATE OF ORDER:
25 FEBRUARY 2022
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The applicant pay the first respondent’s costs set in the amount of $5,800.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION
The applicant applies for remedies under s 476 of the Migration Act 1958 (Cth) (Act) in relation to a decision made by the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant a Partner (Temporary) (Class UK) (Subclass 820) visa (Partner visa).
BACKGROUND
The applicant is a national of India. He first entered Australia in 2007 as the holder of a Student visa. The applicant was granted further Student visas, with the last of these expiring on 27 July 2011. The applicant has not held a substantive visa since that date, although he had been granted a bridging visa in connection with an application he made on 30 June 2011 for a Temporary Skilled Graduate (Subclass 485) visa. That application was refused on 13 September 2012. The bridging visa granted to the applicant expired on 11 October 2012 and the applicant remained in Australia as an unlawful noncitizen until 3 July 2013, when the applicant applied for a Partner visa.
RELEVANT PROVISIONS
To have been entitled to the grant of a Partner visa the applicant had to satisfy, among other things, cl 820.211(2)(d)(ii) of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations).[1] That paragraph applies to an applicant who does not hold a “substantive visa”; and it requires such applicant to satisfy “Schedule 3 criteria 3001, 3003 and 3004, unless the Minister is satisfied that there are compelling reasons for not applying those criteria”. Criterion 3001 relevantly provides as follows:
[1] Although I use the present tense, the provisions of the Regulations that are relevant are those that were in effect on 3 July 2013 when the applicant applied for a Partner visa.
(1)The application is validly made within 28 days after the relevant day (within the meaning of subclause (2)).
(2) For the purposes of subclause (1) and of clause 3002, the relevant day, in relation to an applicant, is:
. . . .
(c) if the applicant:
(i) ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or
(ii) entered Australia unlawfully on or after 1 September 1994;
whichever is the later of:
(iii) the last day when the applicant held a substantive . . . visa . . .
The expression “substantive visa” is defined in s 5(1) of the Act to mean a visa other than a bridging visa, a criminal justice visa, or an enforcement visa. The only substantive visa the applicant held was a Student visa, which ceased in July 2011. That means the applicant could not satisfy criterion 3001 at the time he applied for the Partner visa and, therefore, cl 820.211(2)(d)(ii) of Schedule 2 to the Regulations. That, in turn, means that before the applicant could have been granted a Partner visa, and assuming he satisfied all other criteria, the Minister had to be satisfied there are compelling reasons for not applying criterion 3001.
Also relevant to this proceeding are other provisions or sets of provisions. The first is cl 820.211(2)(a) of Schedule 2 to the Regulations, which requires that at the time of application for a Partner visa the applicant is the spouse or de facto partner of an Australian citizen. Subsection 5F(1) of the Act provides that a person is the “spouse” of another person if, under s 5F(2) of the Act, the two persons are in a “married relationship”. Under s 5F(2) of the Act, persons are in a “married relationship” if:
(a)they are married to each other under a marriage that is valid for the purposes of the 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 live together, or do not live separately and apart on a permanent basis.
Subsection 5F(3) of the Act provides that 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 have made provision, and this is to be found in reg 1.15A of the Regulations. Subregulation 1.15A(2) provides that, when considering an application for a Partner visa, among other subclasses of visas, the Minister must consider all of the circumstances of the relationship, including the matters set out in reg 1.15A(3) of the Regulations. Those matters include the following:
(a)the financial aspects of the relationship, including any joint ownership of real estate or other major assets; any joint liabilities; the extent of any pooling of financial resources, especially in relation to major financial commitments; whether one person in the relationship owes any legal obligation in respect of the other; the basis of any sharing of day-to-day household expenses; and
(b)the nature of the household, including any joint responsibility for the care and support of children; and the living arrangements of the persons; and any sharing of the responsibility for housework; and
(c)the social aspects of the relationship, including whether the persons represent themselves to other people as being married to each other; and the opinion of the persons’ friends and acquaintances about the nature of the relationship; and any basis on which the persons plan and undertake joint social activities; and
(d)the nature of the persons’ commitment to each other, including the duration of the relationship; and the length of time during which the persons have lived together; the degree of companionship and emotional support that the persons draw from each other; and whether the persons see the relationship as a long-term one.
The second set of provisions specify requirements that must be satisfied at the time of decision. One is cl 820.221(2) of Schedule 2 to the Regulations which requires, subject to exceptions, that the applicant continues to meet the requirements of (among others) cl 820.211.
A third provision is cl 820.221(3), which provides that an applicant would continue to meet the requirements of cl 820.211(2) except where the relationship between the applicant and sponsoring partner has ceased because, among other things, the applicant “has suffered family violence committed by the sponsoring partner”. These provisions are relevant to the grounds on which the applicant relies, and, for that reason, it will be necessary to set out the relevant terms.
I begin with reg 1.22(1) of the Regulations,[2] which provides that a reference in the Regulations to “a person having suffered family violence” is a reference to a person being taken, under reg 1.23, to have suffered family violence. Subregulation 1.23(1) of the Regulations provides that, for “these Regulations”, reg 1.23 explains when a person (“the alleged victim”) is taken to have suffered family violence and when another person (“the alleged perpetrator”) is taken to have committed family violence in relation to the alleged victim. Regulation 1.23 then identifies a number of circumstances where an alleged victim is taken to have suffered family violence. Subregulation 1.23(13) provides:
The alleged victim is taken to have suffered family violence, and the alleged perpetrator is taken to have committed family violence, if:
(a) an application for a visa includes a non-judicially determined claim of family violence; and
(b) the Minister is required by subparagraph (10)(c)(ii) to take as correct an opinion of an independent expert that the alleged victim has suffered relevant family violence.
[2] I repeat here most of what I said in Sothy v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 3435, at [4]-[10]
Subregulation 1.23(13) contains two elements. The first is there must be an application for a visa that “includes a non-judicially determined claim of family violence”. Under reg 1.23(9) of the Regulations an application for a visa is taken to include a “non-judicially determined claim of family violence” if, relevantly:
(a)the applicant seeks to satisfy a prescribed criterion that the applicant, or another person mentioned in the criterion, has suffered family violence; and
(b)the alleged victim is:
(i) a spouse . . . of the alleged perpetrator;
. . . ; and
(c)the alleged victim or another person on the alleged victim’s behalf has presented evidence in accordance with regulation 1.24 that:
(i) the alleged victim has suffered relevant family violence; and
(ii) the alleged perpetrator committed that relevant family violence.
The expression “relevant family violence” is defined in reg 1.21 of the Regulations to mean “conduct, whether actual or threatened, towards . . . the alleged victim . . . that causes the alleged victim to reasonably fear for, or to be reasonably apprehensive about, his or her own wellbeing or safety”. Under reg 1.24 of the Regulations, the evidence mentioned in reg 1.23(9)(c) is a statutory declaration under reg 1.25 and any other types of evidence the Minister may specify by instrument made under reg 1.24(b). Subregulation 1.25(2) of the Regulations provides:
A statutory declaration under this regulation that is made by a person mentioned in subregulation 1.25(1) who alleges that he or she is the victim of relevant family violence (within the meaning of regulation 1.21) must:
(a) set out the allegation; and
(b) name the person alleged to have committed the relevant family violence; and
(c) if the conduct of the person alleged to have committed the relevant family violence was not towards the alleged victim:
(i) name the person whom the conduct of the alleged perpetrator was towards; and
(ii) identify the relationship between the maker of the statutory declaration and the person whom the conduct was towards.
Subregulation 1.25(3) of the Regulations provides:
A statutory declaration under this regulation that is made by a person mentioned in subregulation 1.25(1) who alleges that another person is the victim of relevant family violence (within the meaning of regulation 1.21) must:
(a) name that other person; and
(b) set out the allegation; and
(c) identify the relationship of the maker of the statutory declaration to that other person; and
(d) name the person alleged to have committed the relevant family violence; and
(e) if the conduct of the person alleged to have committed the relevant family violence was not towards the alleged victim:
(i) name the person whom the conduct of the alleged perpetrator was towards; and
(ii) identify the relationship between the alleged victim and the person whom the conduct was towards; and
(iii) identify the relationship between the maker of the statutory declaration and the person whom the conduct was towards; and
(f) set out the evidence on which the allegation is based.
The second element of reg 1.23(13) is that the Minister is required under reg 1.23(10)(c)(ii) of the Regulations to take as correct an opinion of an independent expert that the alleged victim has suffered relevant family violence. In particular, reg 1.23(10)(c)(ii) of the Regulations requires that:
the Minister must take an independent expert’s opinion on the matter to be correct for the purposes of deciding whether the alleged victim satisfies a prescribed criterion for a visa that requires the applicant for the visa, or another person mentioned in the criterion, to have suffered family violence.
“Independent expert” is defined in reg 1.21 of the Regulations to mean a person who:
(a)is suitably qualified to make independent assessments of non-judicially determined claims of family violence; and
(b)is employed by, or contracted to provide services to, an organisation that is specified, in a legislative instrument made by the Minister, for the purpose of making independent assessments of non‑judicially determined claims of family violence.
The circumstances in which the Minister is to do that which is prescribed by reg 1.23(10)(c)(ii) are set out in reg 1.23(10)(a), (b), and (c)(i) of the Regulations:
If an application for a visa includes a non-judicially determined claim of family violence:
(a)the Minister must consider whether the alleged victim has suffered relevant family violence; and
(b)if the Minister is satisfied that the alleged victim has suffered the relevant family violence, the Minister must consider the application on that basis; and
(c)if the Minister is not satisfied that the alleged victim has suffered the relevant family violence:
(i)the Minister must seek the opinion of an independent expert about whether the alleged victim has suffered the relevant family violence . . .
The effect of these provisions is that if a person who applies for a visa makes a non-judicially determined claim of family violence by presenting evidence as required by reg 1.23(9)(c) of the Regulations, and the existence of family violence is a prescribed criterion for the grant of a visa, the Minister is required to consider the application for a visa on that basis if satisfied the alleged victim has suffered relevant family violence but, if not so satisfied, the Minister must seek the opinion of an “independent expert” about whether the alleged victim has suffered relevant family violence, and must take to be correct the opinion given by the independent expert.
THE APPLICANT’S CLAIM FOR A PARTNER VISA
In a statutory declaration that formed part of his application,[3] the applicant claimed he first met the sponsor (Sponsor), an Australian citizen, at a club in December 2011. The applicant and the Sponsor liked each other. The applicant used to see the Sponsor at his aunt’s place in Campbelltown. The applicant and Sponsor were married on 4 June 2012, and started living together on 8 March 2013. In a statutory declaration that also formed part of the application for a Partner visa,[4] the Sponsor said she met the applicant at a club in December 2011; she liked the applicant very much since she met him; and the applicant “used to come and see [the Sponsor] at [the Sponsor’s] aunt’s place in Campbelltown”. The Sponsor confirmed she and the applicant were married on 4 June 2012, and they started to live together on 8 March 2013.
[3] CB61
[4] CB62
The applicant further supported his application for a Partner visa with a number of documents, including a copy of a marriage certificate in relation to the Sponsor and her former husband, a certified copy of a divorce order in relation to the Sponsor’s previous marriage, a copy of a marriage certificate in relation to the applicant’s and Sponsor’s marriage, a residential tenancy agreement in which the applicant and the Sponsor are noted as tenants, and bank statements of a joint bank account held in the names of the applicant and the Sponsor.
By letter dated 19 November 2013 the Department of Home Affairs (then named the “Department of Immigration and Border Protection”) invited the applicant to provide information set out in the letter.[5] The information related to whether there are compelling reasons for not applying criterion 3001, and to the genuineness of the marriage between the applicant and the Sponsor. The applicant responded by letter dated 24 January 2014 from his lawyers.[6] The letter set out the circumstances in which the applicant and the Sponsor met. The letter also gave details of what occurred in July 2012, after the applicant and Sponsor married.
[5] CB86
[6] CB92
The letter stated the Sponsor went to Fiji “for the purpose of annual prayer”; the Sponsor went to Fiji around that time each year for the purpose of annual prayer; the Sponsor, however, had to stay longer in 2012 because her mother in Fiji fell ill, and the Sponsor had to take care of her; during the Sponsor’s stay in Fiji the applicant kept on financially supporting her, and he kept looking for an apartment for the purpose of the applicant and the Sponsor staying together; after the Sponsor returned from Fiji the Sponsor had to stay at her aunt’s house because she and the applicant did not have a place at which to stay together; and eventually the applicant and Sponsor found a unit in January 2013, and moved into that unit on 8 March 2013.
On 21 November 2014 the delegate refused to grant the applicant a Partner visa because he did not satisfy criterion 3001, and the delegate was not satisfied there were compelling reasons for not applying that criterion.[7]
[7] CB102
BEFORE THE TRIBUNAL
On 12 December 2014 the applicant applied to the Tribunal for review of the delegate’s decision. On 4 January 2016, in response to an invitation to attend a hearing the Tribunal issued on 25 November 2015,[8] the applicant, by his lawyer, sent to the Tribunal a submission in which he claimed he ended his relationship with the Sponsor in July 2015 because the applicant “has been abused and used in [the] relationship, mentally and financially, which had put him into the big financial debt”, and he “has been the serious victim of domestic violence”.[9]
[8] Affidavit of K M Nash 26.05.2021, page 6
[9] Affidavit of K M Nash 26.05.2021, page 20
The applicant also provided a report dated 9 December 2015 prepared by Ms Parasher, a “Consultant Mental Health Practitioner”. Ms Parasher assessed the applicant as manifesting symptoms “suggestive of the presence of high levels of Clinical Depressive symptoms”, and that the applicant reported high levels of anxiety symptoms that are commonly associated with a diagnosis of adjustment disorder with mixed emotions. Ms Parasher further concluded that these symptoms “appear to have developed as a direct consequence of the emotional distress caused by the domestic violence and break-up of his marital relationship”.[10]
[10] Affidavit of K M Nash 26.05.2021, page 21
On 5 January 2016 the Tribunal affirmed the delegate’s decision. On 27 June 2016, however, this Court set aside the Tribunal’s decision, and remitted the matter to the Tribunal for determination according to law.
By letter dated 19 October 2016 the Tribunal invited the applicant to attend before the Tribunal on 13 December 2016 to give evidence and present arguments.[11] In response to the invitation, the applicant provided a report dated 28 November 2016 prepared by Ms Parasher, which she describes as “an addendum to the Statutory Declaration dated 9 December 2015”.[12] In his counsel’s written submissions,[13] the applicant submits that this implies the existence of an earlier statutory declaration Ms Parasher made. I will consider this submission later in these reasons. In her report dated 28 November 2016 Ms Parasher concluded as follows:
It appears that Mr . . . Singh is continuing to benefit from psychological intervention to address his current anxiety and depressive symptoms and to challenge some of his negative cognitions, as well as increasing his problem solving skills.
I have encouraged him to continue to attend his psychotherapy sessions with his psychologist/counsellor psychotherapist.
I urge all those concerned to assist him in gaining his permanent residency in order for him to be able to continue his life as he had planned, to regain his self-confidence as well as his mental health state he had before, and a few years into his relationship.
[11] CB157
[12] CB164
[13] Outline of Submissions on Behalf of the Applicant, [22]
The applicant gave the following evidence before the Tribunal:[14]
(a)his relationship with the Sponsor ended in July 2015, at the time the applicant was evicted from the applicant’s and Sponsor’s unit;
(b)the Sponsor relied on the applicant for financial support, but the Sponsor would arbitrarily withdraw funds from the parties’ joint bank account, both when she was in Australia, and also during her frequent trips to Fiji;
(c)the applicant found the Sponsor’s demands and the manner in which they were made emotionally abusive and intimidating; the Sponsor on a number of occasions threatened to cause difficulties in relation to the applicant’s visa status in Australia if he did not provide the Sponsor with the money she demanded;
(d)at other times the Sponsor either called the police, or threatened to do so, to accuse the applicant of being violent towards her, and this was one of the ways in which the Sponsor attempted to extort money from him; and
(e)the manner in which the Sponsor financially manipulated and exploited the applicant, in conjunction with her threatening and intimidating behaviour when demanding money from him, was one of the major forms of family violence the applicant suffered during their relationship; the Sponsor would at times drink lots of alcohol and verbally abuse the applicant; and on some occasions the Sponsor kicked and pushed him out of her room.
[14] CB188-189, [24]-[27]
According to the Tribunal, the applicant also gave evidence in relation to why criterion 3001 should not be applied. The applicant said the Sponsor financially relied on the applicant during the period of their relationship because the Sponsor did not work, and he discouraged the Sponsor from remaining on the Centrelink benefit; the Sponsor was emotionally reliant on the applicant; and the Sponsor was physically dependant on the applicant “because despite any physical attraction a person may feel for other people, they should stay faithful and control themselves when they are, like the parties, joined by marriage”.[15]
[15] CB189, [29]
It also appears from the Tribunal’s reasons that the applicant gave evidence that the Sponsor was in a long term relationship with a woman in Fiji, and she expressed her intention to the applicant to sponsor this woman to come to Australia as the Sponsor’s partner.[16]
[16] CB190, [34]
TRIBUNAL’S REASONS
The Tribunal decided not to assess whether the relationship between the applicant and the Sponsor was genuine, but that it would accept at face value “the claims that the parties are in a genuine and continuing spousal relationship”.[17] The Tribunal noted, however, that the applicant had given evidence that the Sponsor was in a long term relationship with a woman in Fiji, and she expressed her intention to the applicant to sponsor this woman to come to Australia as the Sponsor’s partner.[18]
[17] CB190, [34]
[18] CB190, [34]
The Tribunal found the applicant did not hold a substantive visa when he applied for the Partner visa, and, therefore, he did not satisfy criterion 3001. The Tribunal then considered whether there are compelling reasons not to apply that criterion; and it did so under a number of headings.
Reasons for not holding a substantive visa
The Tribunal found that the applicant remained in Australia after his last bridging visa ceased, and he made no attempt to regularise his visa status until after he was discovered working unlawfully in Australia. The Tribunal, therefore, was not satisfied that any of the circumstances relating to the applicant’s not holding a substantive visa when he applied for a Partner visa constituted a compelling reason for not applying criterion 3001.[19]
[19] CB191, [42]-[46]
Length of relationship
The Tribunal noted the applicant is no longer in a relationship with the Sponsor, and at the time the relationship ceased, the applicant and the Sponsor were not in a mutually exclusive relationship because the Sponsor was in a long term same-sex relationship with a woman in Fiji. Given the evidence the applicant gave about his relationship with the Sponsor, including the applicant’s evidence that the relationship had ceased, the Tribunal was not satisfied that the relationship having lasted for around 3 years constitutes a compelling reason for not applying criterion 3001.[20]
[20] CB192, [48]
Sponsor’s emotional reliance on applicant
The Tribunal found there was no credible evidence before it to establish the applicant and the Sponsor were in a mutually supportive relationship, or that the Sponsor in any way relied on emotional support from the applicant at any stage of their relationship. The Tribunal also found that the Sponsor’s long term relationship with a woman in Fiji provides a credible reason for her frequent trips to Fiji during the period she was married to the applicant. In the the light of these findings, and the Tribunal’s additional finding that the applicant has a supportive connection with his family of origin in India, the Tribunal was not satisfied the claimed emotional support constitutes a compelling reasons for not applying criterion 3001.[21]
[21] CB192, [50]
Sponsor’s physical reliance on applicant
After noting the applicant, in his evidence to the Tribunal, had defined physical reliance in terms of physical and sexual intimacy, the Tribunal did not find the applicant’s claims of such intimacy to be credible because there was no credible evidence before the Tribunal to establish the applicant and Sponsor were in a mutually exclusive relationship. The Tribunal said “it is clear there was not a mutual commitment between the parties to a relationship together to the exclusion of all others”.[22] Given that a commitment to a relationship to the exclusion of all others is a threshold requirement for a couple in a spousal relationship where an application for a Partner visa is made, the Tribunal was not satisfied that a person’s not seeking physical intimacy from sources external to the relationship for a limited period of separation would provide a compelling reason not to apply criterion 3001.[23]
[22] CB192, [54]
[23] CB192, [55]
Sponsor’s financial reliance on applicant
The Tribunal noted it might have been the case that the Sponsor relied on funds sourced either from the applicant directly, or from a joint bank account to which the Sponsor and the applicant had access, and it was not apparent why the Sponsor could not have sought paid employment, or tested her ongoing entitlements to Centrelink payments. The Tribunal also noted that where an application is made offshore parties ordinarily face some degree of financial hardship. The Tribunal was not satisfied that any of these matters constituted a compelling reason not to apply criterion 3001.[24]
[24] CB193, [56]-[58]
The claim of family violence
The Tribunal noted there is no primary documentation in relation to the Sponsor’s interactions with the courts or police of New South Wales in relation to her applying for an apprehended violence order, or complaints that she was subject to abuse or assault by the applicant. For that reason, the Tribunal reached no conclusions about the contact the Sponsor may have had with the courts and the police.
The Tribunal appears to have accepted the applicant’s claims of financial manipulation by the Sponsor is corroborated by Ms Parasher’s reports; but it noted that in her report of 28 November 2016 Ms Parasher reported the applicant responded to the counselling support he received through experiencing a decline in terms of the intensity and range of symptoms affecting the applicant. The Tribunal further noted that the cessation of the parties’ relationship “18 months ago” stopped any financial manipulation and exploitation by the Sponsor of the applicant, and that the applicant had been receiving financial support from his family in India. In the light of these matters, the Tribunal was not satisfied that the claimed family violence provides a compelling reason for not applying criterion 3001.[25]
[25] CB193-194, [59]-[62]
Overall assessment in relation to compelling reasons
The Tribunal concluded as follows:[26]
I have considered the reasons put forward by the applicant singularly and cumulatively to determine whether there are compelling reasons to not apply the Schedule 3 criteria. The parties were married for around three years before their relationship ceased. There is credible evidence from the applicant the sponsor was not in an exclusive relationship with the applicant. There are no children from the relationship. [The applicant’s migration agent] submits the sponsor was emotionally, physically and financially dependent on the applicant at the time of application, but that these circumstances changed over time. The applicant claims the sponsor was emotionally, physically and financially reliant on him during the period they were in a relationship with each other. I have found these claims to be unconvincing. The applicant has also claimed he was a victim of family violence during the period the parties were in a relationship together.
[26] CB194, [64]
Relevant to the grounds on which the applicant relies are the following conclusions of the Tribunal.[27]
The applicant is claiming the relationship with the sponsor has ended and he has been the victim of family violence committed by the sponsoring partner. In support of that claim the applicant provided a report from Angela Parasher, social worker and consultant mental health practitioner and a letter from his general practitioner, Dr Goya. I have noted no other documents have been provided which are required under the regulations to make a claim that an applicant has suffered relevant family violence.
In order to rely upon a claim that the applicant satisfies the criteria in cl.820.221(3), the applicant must show that he would meet the requirements of cl.820.211(2). As I have found that the applicant does not meet the criteria in cl.820.211(2) it is therefore not necessary for me to assess the claim of family violence or the alternative criteria contained in cl.820.211 or cl.820.221.
[27] CB194, [67], [68]
GROUND 1
The applicant relies on two grounds of application contained in the amended application filed on 25 May 2021. Ground 1 is as follows (errors in original):
The Tribunal failed to consider whether the family violence provisions in div.1.5 of pt.1 of the Migration Regulations 1994 (Cth) (the “Family Violence Exceptions”) applied to the Applicant and whether the application or possible application of the Family Violence Exceptions to the Applicant constitute a compelling reason to waive the schedule 3 criteria, leading to a failure to exercise jurisdiction.
Particulars
(a) The Applicant and the Sponsor got married on 4 June 2012.
(b) The marital relationship ended in July 2015. (CB 188 at [24]).
(c) The Applicant claimed that (i) he was a victim of serious domestic violence from the sponsor during the course of the relationship; (ii) he had been financially manipulated and exploited by the sponsor during the period they were in a relationship with each other and on some occasions to be pushed and kicked from her room at times when she was affected by alcohol. (CB 188- 189).
(d) The Applicant’s Mental Health Practitioner, Ms Parasher in a “Second Updated Psychological Assessment Report” noted that the Applicant wished to use the result of the assessment for the purpose of the domestic violence provision of the Migration regulations; (ii) she had been requested to assess his circumstance to ascertain his eligibility to continue with his application for permanent (CB 164).
(e) The Tribunal found that the Applicant’s claims to have been impacted by domestic violence were corroborated by the reports from his Mental Health Practitioner, Ms Parasher but was not satisfied that the claimed family violence provides a compelling reason for not applying the Schedule 3 Criteria. (CB 194 at [61]).
In his counsel’s written submissions, the applicant in effect submits that the applicant’s application for a Partner visa included “a non-judicially determined claim of family violence” as provided for by reg 1.23(9) of the Regulations; and the Tribunal ought to have considered, but failed to consider, the prospects of the applicant’s establishing that he had been the victim of “a non-judicially determined claim of family violence”. The Minister, on the other hand, submits the applicant’s submissions do not engage with the Tribunal’s reasoning, and there is no evidence to support the existence of a “missing statutory declaration”.
It is the case that the Tribunal did not consider whether the applicant satisfied or could satisfy a “non-judicially determined claim of family violence”; but the Tribunal made no jurisdictional or other error in not considering any such claim or question. The Tribunal noted that “no other documents have been provided which are required under the regulations to make a claim that an applicant has suffered relevant family violence”.[28] I find this to be the Tribunal’s noting that the applicant did not submit a statutory declaration, as required by reg 1.24 of the Regulations, and the Tribunal’s finding that, because the applicant did not submit any statutory declaration as required by reg 1.24 of the Regulations, the applicant’s application for a Partner visa did not include “a non-judicially determined claim of family violence” within the meaning of reg 1.23(9) of the Regulations.
[28] CB194, [67]
The applicant appears to submit the Tribunal was incorrect to find that the applicant did not provide documents “which are required under the regulations to make a claim that an applicant has suffered relevant family violence”, and, for that reason, the Tribunal was incorrect to the extent it found the applicant’s application for a Partner visa did not include “a non-judicially determined claim of family violence”. The applicant submits there exists a statutory declaration dated 9 December 2015 made by Ms Parasher. The basis of that submission is Ms Parasher’s describing her report of 28 November 2016 as “an addendum to the Statutory Declaration dated 9 December 2015”. That, however, does not, in the circumstances of this case, afford a rational basis for inferring that Ms Parasher had made a statutory declaration dated 9 December 2015.
There is in evidence Ms Parasher’s report dated 9 December 2015; it is not a statutory declaration. In those circumstances, the inference is available to be drawn, and I find, that in describing her report of 28 November 2016 as “an addendum to the Statutory Declaration dated 9 December 2015”, Ms Parasher intended her report of 28 November 2016 to be an addendum to her report dated 9 December 2015, not to any statutory declaration she had made. This finding is supported by the applicant not producing any evidence that, in addition to Ms Parasher having prepared the report of 9 December 2015, she also prepared a statutory declaration dated 9 December 2015.
Even if, however, there exists a statutory declaration made on 9 December 2015, there is no evidence of its contents; and, for that reason, there is no evidence on the basis of which it could be inferred that such statutory declaration contained the information required by reg 1.23(9)(c) of the Regulations. That, in turn, means there would be no basis for finding that the applicant’s application for a Partner visa included “a non-judicially determined claim of family violence”, as provided for by reg 1.23(9) of the Regulations.
Finally, even though the Tribunal, correctly, proceeded on the basis that the applicant did not make “a non-judicially determined claim of family violence” as provided for by reg 1.23(9) of the Regulations, the Tribunal nevertheless considered the matters on which the applicant relied for the purpose of determining whether they constituted compelling reasons for not applying criterion 3001.
For these reasons ground 1 fails.
GROUND 2
Ground 2 is as follows (errors in original):
Tribunal failed to consider whether the cessation of the Applicant’s spousal relationship, the circumstances leading up to the end of the relationship and the fact that the Applicant could not possibly satisfy the criteria for a new partner visa application made offshore due to the cessation of the spousal relationship was a compelling reason to waive the schedule 3 criteria.
Particular[s]:
(a) The Applicant and the Sponsor got married on 4 June 2012.
(b) The marital relationship ended in July 2015 (CB 188 at [24])
(c) The Applicant claimed that he was a victim of serious domestic violence from the sponsor during the course of the relationship; (ii) he had been financially manipulated and exploited by the sponsor during the period they were in a relationship with each other and on some occasions to be pushed and kicked from her room at times when she was affected by alcohol.
(d) The Applicant claimed that the Sponsor (i) did not follow through with her commitments to pay rental arrears or future rent; (ii) demanded cash from him in a way that was emotionally abusive and intimidating and will often threaten to cause difficulties for him in relation to his visa status, if he did not provide her with money; (iii) would introduce him as her “friend” rather than as her “husband” to her family and friends; (iv) would verbally abuse him and on some occasions pushed him out of her room, when she was affected by alcohol; (v) was in a lesbian relationship with a woman named … who lived in Fiji; (vi) threatened to call the police and make false allegations of harassment against the Applicant. (CB 188 & 189 at [24]-[28])
This ground claims that because his relationship with the Sponsor has ceased, the applicant would not, if he were again to apply for a Partner visa, be able to satisfy cl 820.211(2)(a) of Schedule 2 to the Regulations, because that would require the applicant to show that at the time of application the applicant is in a spousal relationship with the Sponsor. The ground claims that, for this reason, the Tribunal ought to have considered, but it failed to consider, whether this circumstance was a compelling reason for not applying criterion 3001. The applicant relies on Kaur v Minister for Immigration & Anor.[29] The Minister, on the other hand, submits the Tribunal was not required to consider whether the applicant would encounter any difficulties in having again to apply for a Partner visa; the applicant made no such claim before the Tribunal; and in any event Kaur concerned an applicant whose spouse has died.
[29] Kaur v Minister for Immigration & Anor [2020] FCCA 1081
In Kaur the applicant’s spouse died after the applicant applied for a Partner visa but, under cl 820.221(2) of Schedule 2 to the Regulations (a time of decision criterion), the applicant could nevertheless still have satisfied the criteria for the grant of a Partner visa if criterion 3001 were not applied. The parties accepted that if the application of criterion 3001 were not waived, and the applicant would have to apply again for a Partner visa, it would be impossible for the applicant to satisfy cl 820.211(2)(a) of Schedule 2 to the Regulations, which requires that at the time of application the applicant is in a spousal relationship with the Sponsor. Judge Riethmuller held that the impossibility of the applicant’s not being able to satisfy the criteria for the grant of a Partner visa, if she were again to apply for a Partner visa, was a matter the Tribunal ought to have considered, but failed to consider, whether it constituted a compelling reason not to apply criterion 3001. His Honour so held because he found there was a prospect the applicant would be able to satisfy cl 820.221(2) of Schedule 2 to the Regulations (a time of decision criterion) if criterion 3001 were not applied. His Honour said: “I am persuaded that the applicant could be granted the visa if she can persuade the Tribunal of compelling reasons for not applying criteria 3001”.[30]
[30] Kaur v Minister for Immigration & Anor [2020] FCCA 1081, at [33]
The question that arises is whether, in the circumstances of the case before me, the applicant, as was the case with the applicant in Kaur, could have been granted a Partner visa if he could have persuaded the Tribunal of compelling reasons for not applying criterion 3001. That question must be answered in the negative.
The Tribunal found the spousal relationship between the applicant and the Spouse had ended. The only way, therefore, the applicant could have been granted a Partner visa is if the applicant’s application for a Partner visa included “a non-judicially determined claim of family violence”, as provided for by reg 1.23(9) of the Regulations, with a view to the applicant satisfying cl 820.221(3) of Schedule 2 to the Regulations, a time of decision criterion. The Tribunal, however, noted that the applicant did not provide documents “which are required under the regulations to make a claim that an applicant has suffered relevant family violence”.[31] As I have already found, the Tribunal’s so noting is a reference to the applicant’s not having submitted a statutory declaration as required by reg 1.24 of the Regulations. That means that the applicant’s application for a Partner visa did not include “a non-judicially determined claim of family violence”, as provided for by reg 1.23(9) of the Regulations. For that reason, the applicant could not have satisfied cl 820.221(3) of Schedule 2 to the Regulations (a time of decision criterion), even if the Tribunal were to decide not to apply criterion 3001. In other words, even if the Tribunal were to decide not to apply criterion 3001, the applicant would have had no prospect of satisfying the criteria for the grant of a Partner visa.
[31] CB194, [67]
In these circumstances, that the applicant would not be able to satisfy cl 820.211(2)(a) of Schedule 2 to the Regulations if he were again to apply for a Partner visa is not a matter that was reasonably capable of constituting a compelling reason for not applying criterion 3001 which the Tribunal ought to have considered; and that is because the applicant’s prospects of satisfying the criteria for the grant of a Partner visa could not reasonably have been viewed to be any different according to whether the applicant were permitted to continue with his current application on the basis that criterion 3001 would be waived, or whether the applicant were to make a fresh application for the grant of a Partner visa.
This conclusion may be expressed in terms of materiality. If, contrary to what I have found, the Tribunal was required to consider whether the impossibility of the applicant being able to satisfy the (time of application) criteria for the grant of a Partner visa is a compelling reason for not applying criterion 3001, but it failed to do so, its failure would not have been material. Had the Tribunal considered that question, it would inevitably have formed the view that the applicant would not be in a worse position if he again applied for a Partner visa, compared to the position he would be in if criterion 3001 were waived; and that is because, given the applicant’s application for a Partner visa did not include “a non-judicially determined claim of family violence”, as provided for by reg 1.23(9) of the Regulations, the applicant would have been unable to satisfy cl 820.221(3), a time of decision criterion for the grant of a Partner visa, even if the Tribunal had decided not to apply criterion 3001. Thus, had the Tribunal considered whether the impossibility of the applicant being able to satisfy cl 820.211(2) of Schedule 2 to the Regulations (a time of application criterion for the grant of a Partner visa) if he were to make a new application is a compelling reason for not applying criterion 3001, the Tribunal would have made the same decision. Alternatively, given the applicant’s application for a Partner visa did not include “a non-judicially determined claim of family violence”, the applicant has not discharged the burden that lies on him to show that, had the Tribunal considered whether the impossibility of the applicant being able to satisfy the (time of application) criteria for the grant of a Partner visa if the applicant were again to apply for a Partner visa is a compelling reason for not applying criterion 3001, this “could realistically have resulted in a different decision”.[32]
[32] Minister for Immigration and Border Protection v SZMTA; CQZ15 v Minister for Immigration and Border Protection; BEG15 v Minister for Immigration and Border Protection [2019] HCA 3, at [45]
Ground 2, therefore, also fails.
DISPOSITION AND COSTS
The applicant has failed on each of the grounds on which he relies. I propose, therefore, to order that the application be dismissed.
Counsel for the parties agreed that costs should follow the event. Counsel for the Minister submitted that if the Minister were to succeed, the Minister’s costs should be set in the amount of $5,800. I am satisfied costs should follow the event and that $5,800 represents a fair indemnity of the costs the Minister incurred in successfully defending this application. I will also order, therefore, that the applicant pay the Minister’s costs set in the amount of $5,800.
I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis. Associate:
Dated: 25 February 2022
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