To v Minister for Home Affairs - [2020] FCCA 3018

FEDERAL CIRCUIT COURT OF AUSTRALIA

TO v MINISTER FOR HOME AFFAIRS & ANOR

[2020] FCCA 3018

Catchwords:
MIGRATION – Application for judicial review of a decision of the Administrative Appeals Tribunal to refuse the applicant a partner visa – where the Tribunal was not satisfied the applicant met the requirements of cl 801.221(6)(b) and (c) of the Migration Regulations – where the Tribunal found the relationship between the applicant and his sponsoring partner ceased prior to the applicant suffering family violence committed by the sponsoring partner – whether the Tribunal incorrectly determined the meaning of “pooling of financial resources” – where the Tribunal made an error in not adequately considering the nature of the household of the applicant and his sponsoring partner and their commitment to each other – where the Tribunal in overlooking the full extent of the parties’ sharing has misunderstood the meaning of “pooling” – the errors of the Tribunal amounts to jurisdictional error.

Legislation:

Migration Act 1958 (Cth), s.5F

Intervention Orders (Prevention of Abuse) Act 2009 (SA)

Migration Regulations 1994 (Cth). Sch.2 cl.801.221(6)(b),

sch.2 cl.801.221(6)(c), regs.1.15A, 1.23

Federal Circuit Court Rules 2001 (Cth), sch.1 pt.3 div.1 item 3

Cases cited:

He v Minister for Immigration and Border Protection (2017) 255 FCR 41;

[2017] FCAFC 206

Pelka v Secretary, Dept of Family and Community Services (2006) 151 FCR

546; [2006] FCA 735

Applicant:

VAN DUNG TO

First Respondent:

MINISTER FOR HOME AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

ADG 170 of 2019

Judgment of:

Judge Young

Hearing date:

10 September 2020

Date of Last Submission:

10 September 2020

Delivered at:

Darwin

Delivered on:

10 September 2020

REPRESENTATION

Counsel for the Applicant:

Mr Churches

Solicitors for the Applicant:

Cares Lawyers

Counsel for the First Respondent:

Ms Wells

Solicitors for the First Respondent:

Australian Government Solicitor

ORDERS

A writ of certiorari issue directed to the second respondent quashing the decision of the second respondent dated 3 April 2019.
A writ of mandamus issue directed to the second respondent requiring it to determine according to law the application made to it for review of the decision of a delegate of the first respondent dated 21 August 2017.
Parties may file written submissions in relation to costs within seven days, failing which there will be an order that the first respondent pay the applicant’s costs fixed in the sum of $7,467.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

ADG 170 of 2019

VAN DUNG TO

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application for judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 3 April 2019 affirming a decision of the Minister’s delegate of 21 August 2017 to refuse the applicant a partner visa.
Background
The applicant is a citizen of Vietnam. His former partner is Ms Huynh, whom he met in Vietnam. Ms Huynh is an Australian citizen. In 2013 the applicant travelled to Australia where he married Ms Huynh. The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] FCCA 3018
Decision Date: 10 September 2020

CaseChat Overview and Summary

The applicant sought judicial review of a decision by the Administrative Appeals Tribunal (the Tribunal) which affirmed a delegate's refusal to grant him a partner visa. The dispute centred on whether the applicant met the requirements of clauses 801.221(6)(b) and (c) of the Migration Regulations. These clauses permit the grant of a visa if the relationship between the applicant and their sponsoring partner has ceased, and the applicant has suffered family violence committed by the sponsoring partner, provided certain conditions regarding their commitment to a shared life at the time of the violence are met.

The court was required to determine whether the Tribunal erred in its assessment of the applicant's eligibility for the partner visa. Specifically, the issues included whether the Tribunal correctly interpreted the meaning of "pooling of financial resources" and whether it adequately considered the nature of the applicant and his sponsoring partner's household and their mutual commitment to each other. The applicant contended that the Tribunal's findings on these matters amounted to a misunderstanding of the concept of "pooling" and constituted a jurisdictional error.

Justice Young found that the Tribunal had indeed made jurisdictional errors. The Tribunal's focus on the limited extent of the parties' financial resources, particularly in relation to "pooling," overlooked the broader context of their shared life and commitment. The court referenced the ordinary meaning of "pool" as putting resources into a common stock or fund for common benefit. The Tribunal's reasoning, which seemed to imply that a lack of extensive joint finances negated the required commitment, was found to be flawed. The court noted that the applicant's wife gambled away her earnings, and the applicant also retained a portion of his earnings, which the Tribunal considered in its assessment of financial pooling.

The court ordered that a writ of certiorari issue to quash the Tribunal's decision of 3 April 2019. Furthermore, a writ of mandamus was ordered, directing the Tribunal to determine the applicant's application for review according to law. The parties were given seven days to file written submissions regarding costs, failing which the first respondent would pay the applicant's costs fixed at $7,467.

Orders

Orders of the court

ORDERS

1. A writ of certiorari issue directed to the second respondent quashing the decision of the second respondent dated 3 April 2019.

2. A writ of mandamus issue directed to the second respondent requiring it to determine according to law the application made to it for review of the decision of a delegate of the first respondent dated 21 August 2017.

3. Parties may file written submissions in relation to costs within seven days, failing which there will be an order that the first respondent pay the applicant’s costs fixed in the sum of $7,467.

Background

Background to the litigation

This is an application for judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 3 April 2019 affirming a decision of the Minister’s delegate of 21 August 2017 to refuse the applicant a partner visa. Background The applicant is a citizen of Vietnam. His former partner is Ms Huynh, whom he met in Vietnam. Ms Huynh is an Australian citizen. In 2013 the applicant travelled to Australia where he married Ms Huynh. The applicant is 43 years old, Ms Huynh is 52 years old. They have not had children together, although Ms Huynh has two adult children by a former relationship. [1] [1] There was a reference to a third child in the applicant’s materials but the evidence before the Tribunal mentioned only two children. The applicant was granted a Subclass 820 Partner visa on 21 January 2014 on the basis that he was in a spouse relationship with his sponsor, Ms Huynh. On 7 November 2013 the applicant applied for a partner visa on the same basis. The applicant and Ms Huynh shared houses or flats in Adelaide until about 27 May 2017 when the applicant left the former matrimonial home. On 2 June 2017 he applied under the Intervention Orders (Prevention of Abuse) Act 2009 (SA) for an interim intervention order against Ms Huynh, which was made on 7 June 2017. The application was listed for hearing on 14 June 2017. Ms Huynh did not appear and the order was made final on that day. The Minister’s delegate refused the application for a partner visa on 21 August 2017 because the delegate was not satisfied that the applicant met the requirements of cl 801.221(6)(b) and (c) of the Migration Regulations which, in general terms, permitted the issue of a visa if the relationship between the applicant and the sponsoring partner had ceased and the applicant had suffered family violence committed by the sponsoring partner. However, the delegate was not satisfied that the applicant met a necessary criterion, which required that the applicant and the sponsoring partner lived together with a mutual commitment to a shared life as husband and wife at the time of the family violence. In substance, the delegate found the applicant did not satisfy the criteria for a partner visa because he and his sponsoring partner had separated under one roof before the family violence occurred. The Tribunal reached the same conclusion as the delegate for the same reason.The evidence The applicant’s application was supported, in addition to his own statement, by statutory declarations and statements from other people. Ms Huynh (then still his partner) made a statutory declaration in November 2015 where she described a conventional married relationship. She mentioned that the parties did not have a joint account because “my husband wants to respect my finance”. There was no further explanation on that point. She went on to say that she was in full-time employment so she could “support my husband in renting and all the bills”. She said her husband did some part-time work.

Evidence

Evidence Before The Court

The Tribunal reached the same conclusion as the delegate for the same reason.The evidence The applicant’s application was supported, in addition to his own statement, by statutory declarations and statements from other people. Ms Huynh (then still his partner) made a statutory declaration in November 2015 where she described a conventional married relationship. She mentioned that the parties did not have a joint account because “my husband wants to respect my finance”. There was no further explanation on that point. She went on to say that she was in full-time employment so she could “support my husband in renting and all the bills”. She said her husband did some part-time work. There were other statutory declarations from 2015 from friends of the applicant or Ms Huynh attesting to their relationship in conventional terms. The applicant also submitted statutory declarations made in 2017, following his separation from Ms Huynh in May 2017. Ms N T Ho, the landlady of the applicant and his wife from September 2015, provided a statutory declaration dated 16 July 2017. She said there was no written rental agreement with the applicant and his wife. She said this was not necessary because she knew the applicant’s wife and her family very well. She said the rent was paid monthly and she: … would collect the rent on a monthly basis from either of them and provide whoever gave me the money with the receipt in that person’s name. Another statutory declaration from a V T Ho dated 21 July 2017 said that from the declarant’s “direct observation” the declarant believed the applicant and Ms Huynh were in a genuine and continuing relationship “that was most unfortunately ended by domestic violence”. A declaration from a Mr Tran dated 20 July 2017 made similar remarks saying that he had known Ms Huynh before she married the applicant and attended their wedding. He said: … their marital separation came as a surprise to me as I was always under the impression they were a happily married couple. A declaration from a Ms Thi Loan Tran dated 21 July 2017 said that she had known Ms Huynh for several years before her marriage to the applicant. She said she was saddened by their separation and went on to say I believe that they were, prior to this, in a genuine and continuing relationship as they always seemed happy and affectionate with each other… When the matter came before the Tribunal the applicant also relied on a statement from Ms Doan, Ms Huynh’s daughter, dated 20 March 2019. Ms Doan said that she and her younger brother lived in the matrimonial home until about January 2016 when they both moved out. Ms Doan moved in with her partner (who was described as her husband by the applicant in photographs taken in 2015 and 2016) and her brother moved to other premises. The statement does not say what precipitated the move but it would appear that Ms Doan was an adult at the time and moved out to be with her partner. I infer from the fact that her brother lived independently when he left the home that he was probably an adult too. The statement says that both Ms Doan and her brother had a good relationship with the applicant. She said, in effect, that the applicant and her mother had a conventional married relationship with the sharing of tasks and responsibilities. She said she was not aware of the financial aspects of the relationship. Unfortunately, the statement does not have a clear chronology and it is unclear whether all of Ms Doan’s observations relate to the period prior to her moving out in January 2016 or not. No mention is made of Ms Doan being questioned by the Tribunal.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Regulation 1.23 of the Regulations relevantly provides:…Circumstances in which family violence is suffered and committed - court order (4) The alleged victim is taken to have suffered family violence, and the alleged perpetrator is taken to have committed family violence, if: (a) a court has made an order under a law of a State or Territory against the alleged perpetrator for the protection of the alleged victim from violence; and (b) the order was made after the court had given the alleged perpetrator an opportunity to be heard, or otherwise to make submissions to the court, in relation to the matter. (5) For subregulation (4), the violence, or part of the violence, that led to the granting of the order must have occurred while the married relationship or de facto relationship existed between the alleged perpetrator and the spouse or de facto partner of the alleged perpetrator.The Tribunal’s consideration It was not in dispute that the Magistrates Court at Port Adelaide made a final order under the Intervention Orders (Prevention of Abuse) Act (SA) on 14 June 2017. In accordance with Regulation 1.23(4) the applicant is thus …taken to have suffered family violence, and the alleged perpetrator is taken to have committed family violence. The decisive question for the Tribunal was whether Regulation 1.23(5) was satisfied, that is, whether the applicant suffered family violence …while the married relationship or de facto relationship existed between the alleged perpetrator and the spouse. A consideration of all the factors in Regulation 1.15A is necessary to determine whether the conditions required for the existence of a “married relationship” as defined by s 5F are satisfied: He v Minister for Immigration and BorderProtection (2017) 255 FCR 41. The Tribunal addressed the factors in Regulation 1.15A but its consideration focussed on particular aspects of the evidence. The applicant and his wife lived in very modest circumstances. They rented a home, in reality a granny flat at the landlady’s house, so they did not have a mortgage. They did not have any investments. Their income from the wife’s full-time employment and the applicant’s casual or occasional employment was modest. In considering the financial aspects of the relationship the Tribunal gave particular attention to the extent of “pooling of financial resources” which, of necessity, was limited to their modest incomes from employment. The meaning of “pooling” was discussed by French J (as he then was) in Pelka v Secretary, Department of Family and Community Services (2006) 151 FCR 546. Discussing comparable legislation his Honour, referring to the New Shorter Oxford English Dictionary, said the ordinary meaning of “pool” was: Put resources into a common stock or fund; share in common, combine for the common benefit. The applicant gave evidence that his wife was a gambler and the Tribunal questioned the applicant about this subject. The Tribunal recorded at paragraph [20] of its reasons that the applicant complained that his wife spent money “on junk things – like clothes.” The Tribunal continued: … this transpired to be from gambling her earnings of around $600 per week as well as his earnings of $400 per week (aside from $100 retained by him) at the casino.