SONNET v Minister for Immigration and Anor
[2015] FCCA 919
•19 March 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SONNET v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 919 |
| Catchwords: ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that it failed to consider all the evidence. |
| Legislation: Migration Act 1958, ss.5F, 474 Migration Regulations 1994, regs.1.15A, 1.22, 1.23, cls.820.211, 820.221 of sch.2 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Malavige v Minister for Immigration [2004] FMCA 38 |
| Applicant: | ISHRAQ SONNET |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 2318 of 2013 |
| Judgment of: | Judge Cameron |
| Hearing date: | 19 March 2015 |
| Date of Last Submission: | 19 March 2015 |
| Delivered at: | Sydney |
| Delivered on: | 19 March 2015 |
REPRESENTATION
| Solicitors for the Applicant: | Mr M. Jones of Parish Patience |
| Solicitors for the Respondents: | Ms N. Blake of Clayton Utz |
ORDERS
The application be dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $6,646.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2318 of 2013
| ISHRAQ SONNET |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of Bangladesh who, on 11 January 2011, applied for a combined partner visa. That visa is comprised of a Partner (Temporary) (Class UK) subclass 820 visa and a Partner (Residence) (Class BS) subclass 801 visa. On 17 June 2011 his application was refused by a delegate of the first respondent (“Minister”) on the basis that he did not satisfy cl.820.211 of sch.2 to the Migration Regulations 1994 (“Regulations”) because he and his sponsor did not meet the definition of “spouse” found in s.5F of the Migration Act 1958 (“Act”). The applicant then applied to the second respondent (“Tribunal”) for a review of that departmental decision. He was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
In these judicial review proceedings the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Act; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
Relevant legislation
An applicant for a partner visa is required to satisfy a two stage process. He or she must hold a provisional visa, being a Partner (Temporary) (Class UK) subclass 820 visa, in order to be granted a permanent visa, being a Partner (Residence) (Class BS) subclass 801 visa.
The criteria for the grant of a subclass 820 visa are set out in pt.820 of sch.2 to the Regulations. One of the criteria which the applicant had to satisfy at the time he made his application on 11 January 2011 was cl.820.211. It relevantly provides:
(2) An applicant meets the requirements of this subclause if:
(a)the applicant is the spouse or de facto partner of a person who:
(i) is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and
(ii) is not prohibited by subclause (2B) from being a sponsoring partner; and
(c) the applicant is sponsored:
(i) if the applicant’s spouse or de facto partner has turned 18—by the spouse or de facto partner; …
Section 5F of the Act defines “spouse” and relevantly provides:
(1)For the purposes of this Act, a person is the spouse of another person if, under subsection (2), the 2 persons are in a married relationship.
(2)For the purposes of subsection (1), persons are in a married relationship if:
(a)they are married to each other under a marriage that is valid for the purposes of this Act; and
(b)they have a mutual commitment to a shared life as husband and wife to the exclusion of all others; and
(c)the relationship between them is genuine and continuing; and
(d) they:
(i) live together; or
(ii) do not live separately and apart on a permanent basis.
(3)The regulations may make provision in relation to the determination of whether one or more of the conditions in paragraphs (2)(a), (b), (c) and (d) exist. The regulations may make different provision in relation to the determination for different purposes whether one or more of those conditions exist.
In relation to the determination of whether two persons are in a married relationship, reg.1.15A relevantly provides:
(2) If the Minister is considering an application for:
…
(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, …
(b)the nature of the household, …
(c)the social aspects of the relationship, …
(d)the nature of the persons’ commitment to each other, … .
Family violence
When the delegate and Tribunal made their decisions on the applicant’s application, cl.820.221 relevantly provided:
820.22 Criteria to be satisfied at time of decision
820.221
…
(3) An applicant meets the requirements of this subclause if:
(a)the applicant would continue to meet the requirements of subclause 820.211(2), (3), (4), (5) or (6) except that the relationship between the applicant and the sponsoring partner has ceased; and
(b) either or both of the following circumstances applies:
(i) either or both of the following:
(A) the applicant;
…
has suffered family violence committed by the sponsoring partner;…
Regulations 1.22 and 1.23 set out the evidentiary requirements relevant to a claim of family violence. At all material times they relevantly provided:
1.22 References to person having suffered or committed family violence
(1)A reference in these Regulations to a person having suffered family violence is a reference to a person being taken, under regulation 1.23, to have suffered family violence.
…
1.23 When is a person taken to have suffered or committed family violence?
…
Circumstances in which family violence is suffered and committed—court order
(4)The alleged victim is taken to have suffered family violence, and the alleged perpetrator is taken to have committed family violence, if:
(a)a court has made an order under a law of a State or Territory against the alleged perpetrator for the protection of the alleged victim from violence; and
…
(5)For subregulation (4), the violence, or part of the violence, that led to the granting of the order must have occurred while the married relationship or de facto relationship existed between the alleged perpetrator and the spouse or de facto partner of the alleged perpetrator.
Background facts
Primary application
As already noted, the applicant applied for a combined partner visa on 11 January 2011. That application was sponsored by the applicant’s Australian wife, Ms Mandy Sadler, and was supported by a number of documents including a statement by the applicant dated 7 January 2011 outlining the claimed history of their relationship. In that statement the applicant said:
a)he met Ms Sadler in February 2010 at a “bus depot” in Palmerston in the Northern Territory;
b)he ran into Ms Sadler a week later at the same “bus depot”. When she told him that she did not have a place to stay for the night, he offered to let her stay at his home, which she did;
c)they started going out and eventually fell for each other. He bought her whatever she needed, including cigarettes and food;
d)he wanted Ms Sadler to move in with him but his flatmate at the time did not want an additional person in the house and his parents did not approve of them living together unless they were married; and
e)he married Ms Sadler on 3 December 2010 with his parents’ consent and they were living together in a flat in Palmerston.
The applicant also provided, relevantly:
a)a statement from Ms Sadler similarly outlining the history of their relationship;
b)statutory declarations declared by a Ms Nahzeen Salma and a Mr Ash Muneer stating that they believed that the relationship between the applicant and Ms Sadler was genuine; and
c)one photograph of the applicant and Ms Sadler apparently taken during their wedding ceremony.
On 11 March 2011 departmental compliance officers in the Northern Territory conducted simultaneous visits to the applicant’s former address in Driver and to his then-current address in Nightcliff. The officers who attended the address in Driver were advised by one of the occupants that she had lived there for four and a half years. She advised that she did not know the applicant or Ms Sadler and the applicant had never resided there. The officers who attended the Nightcliff address reported that there were five males at the property, including the applicant. They reported that the applicant advised them that he and Ms Sadler had been living at the premises for approximately five to six weeks but she had left for Kununurra on 7 March 2011 to attend her sister’s funeral, taking all her clothes, shoes, personal sanitary items, cosmetics and photographs. The applicant advised that he was not sure when Ms Sadler would be back.
According to the delegate’s decision record, subsequent enquiries made by departmental officers revealed that:
a)neither the Kununurra Police Station nor the Department of Indigenous Affairs in Kununurra were able to corroborate the applicant’s claims that a funeral had been held in the period 7 March 2011 to 12 March 2011; and
b)Ms Sadler had travelled to Timber Creek, which was about 240km away from Kununurra, on 8 March 2011.
Tribunal proceedings
The applicant’s application for review of the delegate’s decision was lodged with the Tribunal on 18 July 2011. On 27 May 2013 he provided the following documents:
a)an undated statement by him outlining the history of his relationship with Ms Sadler and addressing certain aspects of the delegate’s decision record;
b)photographs of a wedding invitation addressed to him and Ms Sadler;
c)various documents said to evidence cohabitation, such as letters from Centrelink addressed to Ms Sadler at the applicant’s Nightcliff address;
d)a domestic violence order dated 24 August 2011 from the Magistrates Court in Darwin in favour of the applicant;
e)a statutory declaration declared by the applicant on 12 August 2011 setting out details of an incident which took place on 10 August 2011 when Ms Sadler damaged property and threatened to stab him; and
f)a statutory declaration declared by a Mr Mandeep Singh on 12 August 2011 stating that he had been present when the alleged domestic violence incident occurred.
The applicant made the following claims at the Tribunal hearing on 28 May 2013:
a)he and Ms Sadler had lived at the address in Driver from about December 2010 to January 2011. They stayed there while the occupants, whom they had never met, were on holiday;
b)he and Ms Sadler lived at the Nightcliff address from the end of January 2011 to August 2011;
c)in about March or April 2011 his friend, Mr Singh, and another friend moved in with him and Ms Sadler for a while. Mr Singh was present when the domestic violence incident occurred; and
d)Ms Sadler had been in Katherine attending her cousin’s funeral on the day of the site visit.
The applicant also provided post-hearing submissions on 11 June 2013.
The Tribunal’s decision and reasons
Although the Tribunal was satisfied that the applicant and Ms Sadler married on 3 December 2010, it found that they had not been in a genuine spousal relationship at the time of the applicant’s visa application on 11 January 2011 and that the applicant therefore did not satisfy cl.820.211 of sch.2 to the Regulations. That conclusion was based on the following findings and reasons:
a)the applicant did not provide any evidence of joint bank accounts and it was clear from the documents provided that Ms Sadler was receiving Centrelink benefits despite the applicant’s claim that he had supported her financially. In the circumstances, the Tribunal was not satisfied that there was sufficient evidence to indicate that the applicant and Ms Sadler had established a financial relationship;
b)in light of the evidence provided by departmental officers in relation to their site visits on 11 March 2011, the Tribunal did not accept that the applicant and Ms Sadler had lived together at either the Driver address or the Nightcliff address. The Tribunal noted in this regard that:
i)the applicant claimed that the occupants of the Driver address did not recognise him and Ms Sadler because they (he and Ms Sadler) had resided at the address while the occupants were away on holiday. However, the Tribunal did not find this explanation persuasive; and
ii)in relation to the Nightcliff address, the applicant informed departmental officers that Ms Sadler had left for Kununurra on 7 March 2011 to attend her sister’s funeral. However, subsequent inquires revealed that she had travelled to Timber Creek on 8 March 2011. The applicant also told the Tribunal that Ms Sadler had left to attend her cousin’s funeral and not her sister’s. Further, the premises lacked many items one would expect to find in a marital home;
c)the Tribunal found that there was insufficient evidence to indicate that the applicant and Ms Sadler had presented themselves to others in the community as spouses, noting that:
i)while the applicant had provided a photograph of him and Ms Sadler on their wedding day, there was no evidence of a wedding celebration with friends and relatives;
ii)Mr Muneer stated in his statutory declaration that his nephew was the applicant’s best friend. However, he did not name his nephew; and
iii)in her statutory declaration Ms Salma stated that the applicant was her son’s best friend but she did not name her son; and
d)in light of its findings, the Tribunal was not satisfied that the applicant and Ms Sadler had had a mutual commitment to a shared life as husband and wife to the exclusion of all others prior to and at the time of application. In the Tribunal’s view, the applicant married Ms Sadler with the sole intention of acquiring permanent residence in Australia.
The Tribunal noted that the prior existence of a married relationship was a precondition to the assessment of the applicant’s claims of family violence. Having found that the requisite family relationship did not exist, the Tribunal found that it was not required to consider the applicant’s claim of family violence.
The Tribunal found that as the applicant could not be granted a subclass 820 visa, he did not meet the criteria for the grant of subclass 801 visa.
Proceedings in this Court
In the application commencing these proceedings the applicant alleged:
1.The Tribunal erred by misdirecting itself as to the relevance of certain evidence.
Particulars
The Tribunal had before it evidence that the applicant had been the victim of family violence. It disregarded that evidence because it concluded that there was no genuine relationship. However the nature of the violence, arising out of jealousy, was also evidence of the genuineness of the relationship which the Tribunal disregarded.
Submissions
In his written submissions, the applicant referred to the order made by the Magistrates Court in Darwin which had been supported by statutory declarations of the applicant and Mr Singh, both of which had been provided to the Tribunal. The applicant submitted:
The Tribunal held at para 57 (CB 215) that it was “not required to consider the applicant’s claims of family violence”. This was not correct. The effect of reg 1.23(5) is that the applicant will not be “taken to have suffered family violence” if the violence did not occur while the relevant relationship was in existence. This does not mean that the existence of the order and the supporting evidence before the relevant Court may not itself be evidence that the relationship existed.
The order and the supporting statements was corroborative of the Applicant’s claim to be in a relationship with the sponsor at the relevant time. The Tribunal should have taken that evidence into account before determining whether the relationship existed. (emphasis included)
Those submissions were developed in oral addresses at the hearing of this application and emphasis was placed on the significance of the fact that there appears to have been a finding of “court determined family violence” rather than there having been the sort of family violence considered by Bryant CFM in Malavige v Minister for Immigration [2004] FMCA 38.
Consideration
The determination of this matter turns on what the Tribunal was actually saying in para.57 of its reasons. As the fourth last paragraph of the Tribunal’s decision record, it follows the Tribunal’s rehearsal and analysis of the evidence and arguments which were before it and should be understood in that context.
In para.57, the Tribunal said:
In light of the above findings the Tribunal is not required to consider whether the applicant meets certain criteria in Schedule 3 to the Regulations. Also, since the prior existence of a married relationship is a precondition to the assessment of the applicant’s claims of family violence in accordance with Division 1.5 of the Regulation, and the Tribunal finds that the requisite family relationship did not exist, the Tribunal is not required to consider the applicant’s claims of family violence.
What the Tribunal was saying in the second sentence of that paragraph was that it did not need to consider whether the applicant satisfied cl.820.221(3)(b)(i) of the Regulations by reason of the occurrence of family violence. It was not saying that it had not considered the violence the applicant claimed to have suffered.
The Tribunal’s reasons make it quite plain that it did consider whether the applicant had suffered violence at the hands of Ms Sadler. It made several references to the attack he alleged she made on him, the most important of which, for present purposes, is found at para.51 of the Tribunal’s reasons where it said:
The applicant claims that they lived there as a couple until August 2011 when applicant [sic] obtained a court order to restrain the sponsor from contacting him. It is alleged that the sponsor threatened the applicant with a knife and he feared for his safety. The applicant claims that the relationship ceased because of family violence.
The reference to there having been a knife attack is, to my mind, a clear indication that the Tribunal read and appreciated the contents of the applicant’s statutory declaration declared on 12 August 2011 which, with a copy of the order of the Magistrates Court in Darwin, was supplied to the Tribunal by his representatives under cover of their letter of 27 May 2013. Paragraphs 10, 12 and 13 of that statutory declaration refer to Ms Sadler attacking the applicant with a knife.
Importantly, paras.16 and 23 of that statutory declaration identify the claimed basis for the attack, namely Ms Sadler’s jealousy at the applicant having formed an attachment with another woman. It is important to keep in mind that although the statutory declaration makes it clear that jealousy was the claimed reason for the attack, and that the applicant’s representative’s letter of 27 May 2013 also referred to jealousy, the letter did not refer to there having been a knife attack. Consequently, the Tribunal’s reference to there having been a knife attack satisfies me that it did read and understand the applicant’s statutory declaration. I note that Mr Singh’s statutory declaration of 12 August 2011 also refers to there having been a knife.
The Tribunal was required to consider all the circumstances of the relationship. Regulation 1.15A(3) specifically required it to consider the matters mentioned there. The fact that the Tribunal went to some lengths to deal with each of those considerations from reg.1.15A(3) individually does not, given the other matters canvassed by the Tribunal in its reasons, suggest to me that it did not consider the evidence regarding family violence. I infer that, given the matters which the Tribunal considered at length which pointed to the fabrication or contrivance of a relationship, the uncorroborated allegation of the applicant concerning the motivation for his wife’s attack on him did not need particular analysis. In the latter connection, I observe that Mr Singh did not say in his statutory declaration that Ms Sadler was jealous, merely that the applicant had said things to her which upset her.
I am not persuaded that the evidence of family violence was not considered by the Tribunal as part of its consideration of the general circumstances of the relationship.
Conclusion
Jurisdictional error on the part of the Tribunal has, therefore, not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Cameron
Associate:
Date: 17 April 2015
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