Yan v Minister for Immigration - [2016] FCCA 237

FEDERAL CIRCUIT COURT OF AUSTRALIA

YAN v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 237

Catchwords:
MIGRATION – Review of decision by Administrative Appeals Tribunal – whether Administrative Appeals Tribunal’s decision affected by jurisdictional error – whether, for the grant of a partner visa pursuant to cl.100.221(4) of the Migration Regulations 1994 (Cth), the applicant was required to be in a “married relationship” as defined in s.5F of the Migration Act 1958 (Cth) with the sponsor at the time the claimed family violence occurred – whether the Administrative Appeals Tribunal erred in finding that the applicant and the sponsor were not in a married relationship at the time the claimed family violence occurred – no jurisdictional error – application dismissed.

Legislation:
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5F, 31, 65, 338, 357A, 359A, 359AA, 360, 474
Migration Regulations 1994 (Cth) regs.1.15A, 1.22, 1.23, 2.01, Schedule 2 – cl.100.221
Migration Amendment Regulation 2007 (No.13) (Cth)
Migration Amendment Regulation 2009 (No.12) (Cth)

Cases Cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Muliyana v Minister for Immigration and Citizenship [2010] FCAFC 24

Applicant:

HONG QIU YAN

First Respondent:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 1310 of 2014

Judgment of:

Judge Emmett

Hearing date:

9 February 2016

Date of Last Submission:

11 February 2016

Delivered at:

Sydney

Delivered on:

23 February 2016

REPRESENTATION

Counsel for the Applicant:

Ms Adria Poljak

Solicitors for the Applicant:

Christopher Levingston & Associates

Counsel for the Respondents:

Mr Mark Cleary

Solicitors for the Respondents:

DLA Piper Australia

FEDERAL CIRCUIT
COURT OF AUSTRALIA AT
SYDNEY

SYG 1310 of 2014

HONG QIU YAN

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Migration Review Tribunal dated 23 April 2014 and handed down on 24 April 2014 (“the MRT”).
Prior to considering the proceeding before this Court, these Reasons provide the relevant procedural background, a summary of the legislative framework, a summary of the decision of a delegate of the first respondent (“the Delegate”), and a summary of the MRT’s review and decision.

Background

On 1 December 2010, the applicant lodged an application with the Department of Immigration and Citizenship (“the Department”) for a Partner (Provisional) Subclass 309 visa and a Partner (Migrant) Subclass 100 visa on the grounds of being in a spousal relationship with an Australian citizen (“the Sponsor”).
On 1 June 2011, the applicant was granted a Partner (Provisional) Subclass 309 visa.
On 28 June 2011, the applicant entered Australia as the holder of a Partner (Provisional) Subclass 309 visa.
On 18 January 2012, the Delegate refused the applicant’s application for a Partner (Migrant) Subclass 100 visa.
On 31 January 2012, the applicant lodged an…

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: [2016] FCCA 237
Decision Date: 23 February 2016

CaseChat Overview and Summary

The applicant, Yan, sought judicial review of a decision by the Migration Review Tribunal (MRT) to refuse her application for a Partner (Migrant) (Class BC) visa. The Minister for Immigration was the second respondent. The applicant contended that the MRT erred in its assessment of her eligibility for the visa, particularly concerning the requirements related to a subsisting spouse relationship and the occurrence of family violence.

The central legal issues before the court were whether the MRT had jurisdictionally erred by requiring the applicant to prove a subsisting spouse relationship at a time proximate to a judicial order, and whether the MRT's finding that the applicant and her sponsor were not in a genuine, ongoing, and mutually exclusive relationship at the time of a judicial order was relevant. Furthermore, the court considered whether the MRT erred in finding that the applicant was not a victim of family violence at the time the claimed violence occurred, and how the timing of such violence related to the cessation of the spousal relationship under the Migration Regulations.

Emmett J applied the principles established in *Muliyana v Minister for Immigration and Citizenship* [2010] FCAFC 24. The court accepted the broader interpretation of the policy behind clause 100.221(4)(c) of the Migration Regulations, which allows for a visa applicant to be granted a Partner (Migrant) visa even if the spousal relationship has ceased, provided they have suffered domestic violence. This policy aims to prevent individuals from being forced to remain in or return to an abusive relationship without compromising their immigration status. Crucially, the court held that the domestic violence did not need to have occurred during the currency of the spousal relationship or be the cause of its cessation. The relevant considerations were simply that the spousal relationship had ceased and that the applicant had suffered domestic violence committed by the sponsoring partner.

The court found that the MRT had erred in its approach to the family violence criterion. The applicant had been granted a Subclass 309 visa, which established the conditions precedent for a favourable assessment under clause 100.221(2A) and (4)(b) and (c)(i). The MRT's focus on the status of the relationship at a specific later point in time, and its finding that the relationship had ceased, was not determinative of the family violence claim in the manner it applied. The court concluded that the MRT's decision was infected by jurisdictional error.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

At the time of the visa application, and at the time of the MRT’s decision, the applicant was required to meet the requirements in cl.100.221 of Schedule 2 to the Regulations for the grant of a Partner (Migrant) Subclass 100 visa, as follows: “100.22 – Criteria to be satisfied at time of decision100.221(1) The applicant meets the requirements of subclause (2), (2A), (3), (4) or (4A).(2) The applicant meets the requirements of this subclause if:(a) the applicant is the holder of a Subclass 309 (Partner (Provisional)) visa; and(b) the applicant is the spouse or de facto partner of the sponsoring partner; and(c) subject to subclauses (5), (6) and (7), at least 2 years have passed since the application was made.…(4) The applicant meets the requirements of this subclause if:(a) the applicant first entered Australia as the holder of a Subclass 309 (Partner (Provisional)) visa and continues to be the holder of that 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) after the applicant first entered Australia as the holder of the visa mentioned in paragraph (a)—either or both of the following circumstances applies:(i) either or both of the following:(A) the applicant;(B) a member of the family unit of the sponsoring partner or of the applicant or of both of them;has suffered family violence committed by the sponsoring partner;…(7) Nothing in paragraphs (2)(c) and (2A)(c) prevents the Minister, less than 2 years after the application is made, from:(a) refusing to grant a Subclass 100 visa; or(b) granting a Subclass 100 visa to an applicant who meets the requirements of subclause (3) or (4). “Spouse” is defined in s.5F of the Act, as follows:“Spouse(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. This definition of “spouse” is supplemented by reg.1.15A of the Regulations, as follows:“1.15A Spouse(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…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.”

Ratio Decidendi

Legal Principle Established

Counsel for the applicant confirmed that the applicant relied on the grounds contained in the applicant’s initiating application filed on 15 May 2014, as follows:“1. The Migration Review Tribunal (Tribunal) erred when refusing application for a Partner (Migrant) (Class BC) visa (Visa)Particularsa. The decision of the Second Respondent was infected by jurisdiction error in requiring the applicant to evidence a subsisting spouse relationship at a time proximate to the making of a judicial order capable of satisfying the requirements of cl 100.221(4)(b),(c)(i).b. The decision of the Second Respondent to the effect that the applicant and sponsor were not in a genuine, ongoing and mutually exclusive relationship at the time of the judicial order was not relevant. That fact having already been established on or about 1 June 2011 by the grant of a visa subclass 309, which established the conditions precedent as contemplated in cl 100.221(2A) to a finding in favour of the Applicant by reason of the satisfaction of requirements of criterion 100.221(4)(b) and (c)(i) of the Migration regulations.” Counsel for the applicant submitted that the MRT erred in finding that the applicant was not a victim of family violence at the time the claimed violence occurred. In support, counsel for the applicant referred the Court to Muliyana v Minister for Immigration and Citizenship [2010] FCAFC 24 (“Muliyana”), where the Full Court of the Federal Court of Australia stated as follows:“[33] In Sok, Riley FM observed that the express words of cl 100.221(c) of Sch 2 of the regulations do not state that the domestic violence needed to have occurred during the currency of the spousal relationship or that the domestic violence needed to have caused or contributed to the cessation of the spousal relationship. Her Honour nevertheless identified an “obvious policy” behind the provisions to enable a person in circumstances of domestic violence to leave an abusive relationship without compromising his or her immigration status. Her Honour concluded that the policy so identified required the domestic violence to have occurred during the currency of the relationship.[34] However, in our view, her Honour’s identification of an “obvious policy” behind the provisions to enable a person in circumstances of domestic violence to leave an abusive relationship without compromising his or her immigration status, is too narrowly stated. There is no warrant, in terms of policy, for treating such a “humanitarian ground”, to adopt the phrase used by Wilcox J in Ibrahim at [40], as inapplicable to a person who has suffered domestic violence after the spousal relationship has ceased for whatever reason (whether temporarily or not) who does not wish to return to that relationship but in taking this position, would not be compromising her (or less frequently, his) immigration status. In short, the policy is intended to cover both situations: not to force a person to stay in an abusive relationship; and not to force a person to go back into an abusive relationship, in either case without compromising his or her immigration status. If that is the correct identification of the policy, then it matters not whether the domestic violence occurred before or after the cessation of the spousal relationship; just that domestic violence occurred and the spousal relationship has ceased; and that may well explain why there is no temporal limitation in the text of cl 100.221(4)(c) confining it to the former situation.[35] No doubt there will be cases where the violence occurs between former spouses in circumstances, for example, many years after the relationship has ended, such that it would not qualify as “domestic violence” within the broader concept of a “non-judicially determined claim for domestic violence”. But that is not this case where the Tribunal made an unchallenged finding that the appellant had suffered domestic violence.[36] Absent the confined policy identified by her Honour, there is nothing in the text of the legislation viewed in its context: CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408, and nothing in any referrable relevant extrinsic material, which would suggest that the domestic violence had to be the cause or a reason for the cessation of the spousal relationship and, for that reason, had to have occurred prior to the cessation of the spousal relationship. Indeed, acceptance of the broader policy identified in [34] above, inevitably leads to the conclusion that it matters not when the violence occurred, before or after cessation of the spousal relationship, provided it was “domestic violence” as defined. [37] There are other reasons why we think our construction is to be preferred over that submitted on behalf of the Minister. Chief amongst them is that the Minister, on his own submission, would be involved in ascertaining and determining the cause or reason for a cessation in the spousal relationship. That is a matter for experts, not Ministers of the Crown or their delegates. But that is what would be involved, in many cases, if the fact-finding exercise requires one to fix the time of the cessation of the spousal relationship; and such time fixing would be necessary if the domestic violence must occur before that time for the requirement of cl 100.221(4)(c) to be satisfied. [38] No such fact-finding would be involved on the part of the Minister if the construction which we embrace is adopted. All that would be necessary would be findings that:1. The spousal relationship has ceased: cl 100.221(4)(b); and 2. the visa applicant has suffered domestic violence committed by the sponsoring spouse: cl 100.221(4)(c).”