FEDERAL COURT OF AUSTRALIA

Pokharel v Minister for Immigration and Border Protection [2016] FCAFC 34

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant pay the first respondent’s costs of the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1    This is an appeal from a judgment of the Federal Circuit Court of Australia dismissing the appellant’s application for constitutional writs in respect of a decision of the Migration Review Tribunal (now the Administrative Appeals Tribunal) (“the Tribunal”).

2    The Tribunal affirmed a decision of a delegate of the first respondent, the Minister for Immigration and Border Protection, to refuse to grant the appellant a Partner (Temporary) (Class UK) visa (“Partner Temporary visa”). The delegate had also refused the appellant’s application for a Partner (Residence) (Class BS) visa (“Partner Residence visa”), but that refusal does not appear to have been the subject of any application to the Tribunal.

3    Before the Tribunal, the appellant claimed that he and his sponsor had been in a married relationship, but that the relationship ended because he had been subjected to family violence. The Tribunal decided that the relationship had not been a married relationship, and that it was unnecessary to go on to consider the appellant’s allegations of family violence. The appellant contends that the Tribunal fell into jurisdictional error because it “shut its mind to the question of how might there be domestic violence in the absence of a spousal relationship.”

4    A second issue arises from an area of confusion in the Tribunal’s reasons. Although the Tribunal stated that it was reviewing the delegate’s decision to refuse the Partner Temporary visa, it mistakenly referred to the criteria for grant of a Partner Residence visa. The confusion in the Tribunal’s reasons flowed into the judgment of the Federal Circuit Court. It is necessary to consider whether the Tribunal fell into jurisdictional error by applying the wrong legislative provision; and, if it did, whether the error had any effect on the outcome of the application.

5    For the reasons that follow, the appeal will be dismissed.

The delegate’s decisions

6    The appellant is a citizen of Nepal. His claims are as follows.

7    The appellant met an Australian woman (“Ms W”) on a dating site called “Dating On Line: Are You Interested?” in September 2011. He lived in Sydney, and she lived in Tarro near Newcastle. They telephoned each other every day and finally met on 11 February 2012. After that, he would spend two nights per week with Ms W and her children at her home, and she would sometimes spend two to three nights at a time with him in Sydney. In mid-March 2012, Ms W asked the appellant to marry her, and they were married on 29 April 2012.

8    The appellant submitted his application for the visas on 21 May 2012, with Ms W named as his sponsor. The application form required the applicant to apply for both a Partner Temporary visa and a Partner Residence visa, even though the latter cannot be granted for at least two years after the application is made.

9    On 6 December 2013, the Minister’s delegate requested that the appellant and his sponsor attend an interview. Neither the appellant nor Ms W attended.

10    On 13 January 2014, the appellant provided the delegate with a statutory declaration stating that his relationship with Ms W had ended on 25 February 2013, at least in part, because of violence she had perpetrated against him. The appellant stated that he and Ms W argued because of her children, who did not like him. She demanded financial support, forcing him to give her more money. The appellant referred to the frequent interference of Ms W’s former boyfriend in their lives. He alleged that Ms W warned him several times that she would call her brother, who was an ex-convict, to “fix him up”.

11    The appellant also alleged that on one occasion Ms W grabbed him from behind, took his wallet from his pocket and stole his money. On another occasion, she physically abused him by pushing his head against a car window. On another occasion, Ms W’s son kicked him from behind and threatened to kill him, while Ms W punched him in the face. On a final occasion, she pushed his head against a wall and punched him twice.

12    On 17 January 2014, the Minister’s delegate made a decision to refuse the applicant a Partner Temporary visa and another decision to refuse him a Partner Residence visa.

13    The delegate’s decision was made pursuant to s 65 of the Migration Act 1958 (Cth) (“the Act”). Section 65(1) provides, relevantly, that if the Minister is satisfied that the criteria for a visa prescribed by the Act and the Migration Regulations 1994 (Cth) (“the Regulations”) have been satisfied, the Minister is to grant the visa, or, if not so satisfied, is to refuse to grant the visa.

14    Section 31(1) of the Act provides that there are to be prescribed classes of visas. Under reg 2.01 and Sch 1 of the Regulations, the prescribed classes include Partner Temporary visas (which, as the name suggests, are temporary visas) and Partner Residence visas (which are permanent visas).

15    Section 31(3) of the Act provides that the Regulations may prescribe criteria for visas of a specified class. Under regs 2.02(2) and 2.03(1), the prescribed criteria include the primary criteria and any secondary criteria set out in Sch 2 referable to the relevant class of visa.

16    The criteria for the grant of a Partner Temporary visa are set out in Part 820 of Sch 2. Clause 820.21 prescribes primary criteria that must be satisfied at the time the application for the visa is made. Subclause 820.211(2) requires, relevantly, that the applicant is the “spouse” of an Australian citizen and that the applicant be sponsored by the applicant’s “spouse”.

17    The primary criteria for a Partner Temporary visa to be satisfied at the time the decision is made are set out in cl 820.22. Subclause 820.221(1) requires, relevantly, that the applicant continues to be the “spouse” of an Australian citizen, or meet the requirements of subcl 820.221(3). Under subcl (3), the spousal relationship need not be a continuing one if the applicant “has suffered family violence committed by the sponsoring partner”.

18    Part 801 of Sch 2 prescribes the criteria for the grant of a Partner Residence visa. Clause 801.22 sets out the primary criteria required to be satisfied at the time of the decision. Subclause 801.221(2) requires: that the applicant be the holder of a Partner Temporary visa; the applicant continue to be sponsored by the sponsoring partner; the applicant is the “spouse” of the sponsoring partner; and at least two years have passed since the application was made. These requirements appear to be designed to prevent applicants who have entered short-term relationships from gaining permanent visas.

19    However, under subcl 801.221(6), the applicant need not meet the requirements of subcl (2) if, relevantly, the applicant “has suffered family violence committed by the sponsoring partner.” The “family violence” provisions in Sch 2 reveal a preference for not compelling a visa applicant to remain in a violent relationship lest his or her application fails.

20    The central criterion for both Temporary Partner and Residence Partner visas is that the visa applicant be the “spouse” of the sponsor. The word “spouse” is given a narrower definition than its ordinary meaning in s 5F of the Act:

(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…

21    Regulation 1.15A(1) of the Regulations requires the Minister to consider all of the circumstances of the relationship, including the matters set out in subreg (3). The circumstances in subreg (3) are: the financial aspects of the relationship; the nature of the household; the social aspects of the relationship; and the nature of the persons’ commitment to each other. Subregulation (3) also enumerates further specific factors that the Minister is required to consider within each of these circumstances.

22    Division 1.5 of the Regulations prescribes the circumstances in which a visa applicant is taken to have suffered “family violence”. Regulation 1.23(10) requires that the Minister be satisfied that the alleged victim suffered “relevant family violence”. The expression “relevant family violence” is defined in reg 1.21 to mean, relevantly, conduct against the alleged victim that causes the alleged victim to reasonably fear, or to be reasonably apprehensive about, his or her own wellbeing or safety. Significantly for the purposes of this appeal, under reg 1.23(12), the Minister must be satisfied that the relevant family violence occurred “while the married relationship…existed.”

23    The delegate refused to grant the appellant a Partner Temporary visa because she was not satisfied that the sponsor was the “spouse” of the applicant within the meaning of that word in s 5F of the Act and cl 820.211(2) of the Regulations. The delegate also concluded that she could not take into account the applicant’s claim of family violence as she was not satisfied that the sponsor had ever been the applicant’s spouse.

24    The delegate went on to consider the application for what she called a “Partner (Permanent) (Class BS)” visa. She must have intended to refer to a Partner (Residence) (Class BS) visa. The delegate was not satisfied that the applicant met the requirements of cl 801.221(2) and, accordingly, refused to grant the appellant that visa.

The Tribunal’s decision

25    On 23 January 2014, the appellant lodged an application for review with the Migration Review Tribunal. The application form asked the question “What decision do you want reviewed?” The appellant (or his migration agent) ticked the box for “Visa refusal.” The form then required the appellant to “give details of the visa”, allowing space for the specification of only one visa. The appellant described the decision that he wanted reviewed as being refusal of a “Visa class BS Subclass 820”. It is unclear from this description whether the appellant was nominating the decision to refuse the Partner (Residence) (Class BS) (Subclass 801) visa, or the decision to refuse the Partner (Temporary) (Class UK) (Subclass 820) visa, or whether it was an attempt to nominate both.

26    The Tribunal commenced its reasons by saying that the application was “for review of a decision…to refuse to grant the applicant a Partner (Temporary) (Class UK) visa”. It may be inferred that the Tribunal interpreted the application form in that way because the appellant first had to have the decision to refuse the Partner Temporary visa reversed before the decision to refuse the Partner Residence visa was capable of being reversed. The interpretation of the application form was a question of fact for the Tribunal and the view it took was open to it.

27    The Tribunal’s reasons then summarise the appellant’s evidence. This summary includes his account in oral evidence of the violence that he was subjected to by Ms W. The appellant told the Tribunal that when they argued, Ms W would hit him. Her 16 year old son would also hit him. Ms W would also grab him and take money from him. The appellant repeated the material in his statutory declaration that he had conflict with Ms W’s children, that she threatened to set her brother onto him and that she continued to see her former boyfriend. He said that he had always tried to patch up the relationship and keep it together. Ms W eventually forced him to leave her home and he returned to Sydney.

28    The Tribunal’s reasons then contain a section headed “Consideration of Claims and Evidence”. In this section, the Tribunal commenced by saying, “The issue in the present case is whether the applicant was the spouse of the sponsoring partner or is able to satisfy the other sub-criteria in clause 801.221”. The Tribunal then noted that “cl.801.221(2)(c) requires that at the time of this decision, the applicant is the spouse of the ‘sponsoring partner’.” It may be seen that the Tribunal referred here to criteria for the grant of a Partner Residence visa in Part 801 of Sch 2 of the Regulations, despite having said it was reviewing the decision to refuse the Partner Temporary visa. The Tribunal should instead have referred to the criteria for a Partner Temporary visa in Part 820.

29    The Tribunal went on to consider whether the applicant and Ms W had been in a “married relationship” before they separated, examining the criteria under s 5F of the Act and reg 1.15A of the Regulations. The Tribunal noted that they were validly married to each other. The Tribunal stated that while they had a joint bank account, the appellant also retained his own account. The appellant had produced a document with a list of dates and amounts of money that was said to demonstrate the appellant’s financial contribution to the relationship, but the Tribunal rejected the document as providing evidence of any pooling of financial resources or the sharing of day to day household expenses.

30    The Tribunal found that there was no evidence that the appellant and Ms W had joint responsibility for the care and support of Ms W’s children and found that there was no independent evidence as to the living arrangements of the appellant and Ms W. The Tribunal was not satisfied that the appellant and Ms W had established a household together, or that they did not live separately and apart on a permanent basis.

31    The appellant had provided statutory declarations from two people attesting to their belief that the relationship was genuine. He also provided photographs of the appellant and Ms W together, along with several other people who appeared to be family members of Ms W. The Tribunal considered that the evidence was insufficient to determine whether the appellant and Ms W represented themselves as being married to each other to any more than a small circle of people. The Tribunal also decided there was insufficient evidence from friends and acquaintances about the nature of the relationship.

32    The Tribunal’s reasons noted that the time from the first meeting in person to the date of separation was one year. During that time, the appellant had retained his own accommodation in Sydney and did not live permanently with Ms W. Ms W remained in Tarro, rather than committing to a new life with the appellant and establishing a household with him. In addition, she continued to see a former boyfriend.

33    The Tribunal concluded that on Ms W’s part, the nature of the commitment appears to have been a financial one. The Tribunal noted that although the appellant claimed that the relationship was good initially and based on love, there was insufficient evidence as to the degree of companionship and emotional support that they drew from each other as spouses and whether they saw the relationship as a long-term one.

34    The Tribunal concluded:

28.     Having regard to all the circumstances, on balance, the [T]ribunal is not satisfied that the applicant and sponsor had a mutual commitment to a shared life as husband and wife to the exclusion of all others, or that the relationship was genuine and continuing, and the couple lived together, or did not live separately and apart on a permanent basis.

29.     Given these findings the Tribunal is not satisfied that at the time of decision the parties were in a spousal relationship. Therefore the applicant does not meet cl.801.221(2)(c).

30.     Any incidences of family violence that are alleged must have occurred when the married relationship was still in existence. As the Tribunal is not satisfied that the applicant was the spouse of the sponsoring partner, the allegations of family violence pursuant to cl.801.221 (6) have not been considered. Furthermore, the applicant has not claimed, and there is no evidence before the Tribunal, that the applicant meets the alternative criteria in cl.801.221(2A), (3), (4), or (5).

35    It may be noted that the Tribunal’s findings again referred to cl 801.221, the provision containing time of decision criteria for a Partner Residence visa. However, the Tribunal’s decision was as follows:

The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

The Federal Circuit Court’s judgment

36    The appellant applied to the Federal Circuit Court for constitutional writs pursuant to s 476 of the Act.

37    Unfortunately, the primary judge’s reasons repeated the Tribunal’s error in referring to the criteria for a Partner Residence visa instead of a Partner Temporary visa. His Honour said:

7.    The Tribunal correctly identified the relevant issues in para. 18 as follows:

18.    The issue in the present case is whether the applicant was the spouse of the sponsoring partner or is able to satisfy the other sub-criteria in clause 801.221.

38    His Honour may have been led astray by the parties’ submissions. His Honour described the appellant’s first submission as being that the Tribunal erred “by failing to take into account domestic violence in determining whether at the time of the decision the criteria under cl.801.221(2)(c) were met”. His Honour accepted the Minister’s submission that in circumstances where the Tribunal decided that there was no spousal relationship at the time of the application, the issue of family violence under cl 801.221(6) did not arise. His Honour also held that any error in the Tribunal’s approach to cl 801.221(6) could not possibly have had an impact on the outcome of the application in light of the finding that no spousal relationship was ever in existence.

39    The appellant advanced an argument before the primary judge that the Tribunal had erred in finding that the appellant and Ms W were living apart on a permanent basis, when their separation may have been explicable as being temporary only. The appellant also argued that the Tribunal had failed to consider all of the circumstances of the relationship as required by reg 1.15A of the Regulations. His Honour rejected those grounds. It is not necessary to discuss his Honour’s reasons for doing so, since those grounds form no part of the present appeal.

The appeal

40    The appellant’s notice of appeal to this Court contains one ground, namely:

The Court below erred when it upheld the Tribunal’s decision disallowing evidence of domestic violence because it had not first found a spousal relationship to have existed but by doing so shut its mind to the question of how might there be domestic violence in the absence of a spousal relationship.

41    This ground seems to assert that the Tribunal had failed to consider the appellant’s allegations of domestic (or family) violence. However, the appellant, who was legally represented, instead submitted that the Tribunal was required to take into account the circumstances surrounding the family violence, but failed to do so. Those circumstances are said to include the reasons for the arguments between the appellant and Ms W, such as her demands for money, the behaviour of her children and the interference of her former boyfriend. The appellant argues that such circumstances tended to show that the relationship was a genuine spousal relationship. The appellant submits that by taking the approach that it was unnecessary to consider his claim that the family violence exception applied, the Tribunal “excluded this corpus of evidence” from its consideration.

42    In order to determine this ground, it is necessary to understand exactly what findings the Tribunal made. The Tribunal made a specific finding that it was “not satisfied that at the time of decision the parties were in a spousal relationship.” By “spousal relationship”, the Tribunal meant “married relationship”. The Tribunal did not explicitly find that it was satisfied that the appellant and Ms W were never in a married relationship. However, the Minister submits that a proper construction of the reasons reveals that this is precisely what the Tribunal decided.

43    The Tribunal concluded in the penultimate paragraph of its reasons that any family violence “must have occurred when the married relationship was still in existence”, a reference to the requirement of reg 1.23(12) of the Regulations. The Tribunal said that as it was not satisfied that the appellant “was the spouse of the sponsoring partner”, it had not considered the allegations of family violence for the purposes of cl 801.221(6) of Sch 2. It is evident that the Tribunal must not have been satisfied that the appellant and Ms W were in a “married relationship” within the meaning of that expression in s 5F(2) of the Act and reg 1.15A of the Regulations at the times when the family violence was alleged to have occurred. The Tribunal concluded that as a married relationship did not exist at those times, reg 1.23(12) could not be satisfied. That conclusion, together with the Tribunal’s earlier analysis of the relationship, including pointing to the absence of any commitment by the appellant to Ms W’s children, her continuing relationship with her former boyfriend and the maintenance of homes in different cities, is consistent with the Tribunal deciding that the appellant and Ms W had never been in a married relationship.

44    It may be accepted that the circumstances surrounding allegations of the family violence were capable of influencing the question of whether the appellant and Ms W were ever in a married relationship. The difficulty for the appellant is that the Tribunal’s reasons demonstrate that it did consider both the allegations of family violence and the surrounding circumstances. The Tribunal summarised the appellant’s evidence of family violence and the circumstances surrounding that violence.

45    In conducting its analysis of whether the appellant and Ms W were in a married relationship under the heading “Consideration of Claims and Evidence”, the Tribunal was not required to refer to each piece of evidence about the circumstances surrounding the family violence, or even any of those pieces of evidence: see Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [10] (Gleeson CJ), [33] (Gaudron J) and [68] (McHugh, Gummow and Hayne JJ). It was open to the Tribunal to take the view that such evidence carried no weight in deciding whether there was a married relationship. Nevertheless, in its consideration of whether there was a married relationship, the Tribunal was influenced, among other things, by the appellant’s lack of commitment to Ms W’s children, the ongoing relationship between Ms W and her former boyfriend and Ms W’s commitment being based only on the appellant’s financial support. Those matters formed part of the factual matrix surrounding the allegations of family violence. Therefore, the appellant’s submission that the Tribunal had failed to consider the circumstances surrounding the allegations of family violence must be rejected.

46    The appellant also submits that the Tribunal erred by failing to consider the report of a psychiatrist that he had submitted to the Tribunal. That report recited the appellant’s claims concerning the development of his relationship with Ms W and his allegations that he had become the victim of psychological and physical abuse. The psychiatrist expressed the opinion that the appellant was suffering from a psychiatric condition, developed against the background of ongoing psychosocial stressors mainly related to his employment. The psychiatrist also noted the appellant’s history of trauma “secondary to reported domestic violence”. The Tribunal did not refer to the psychiatrist’s report in its reasons.

47    A Tribunal may commit jurisdictional error if it fails to take into account a relevant, cogent and important piece of evidence: see Minister for Immigration and Citizenship v SZKRT (2013) 212 FCR 99 at [111]-[112] (Robertson J); Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; (2014) 309 ALR 67 at [50] (Katzmann, Griffiths and Wigney JJ), Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 at [70] (Kenny, Griffiths and Mortimer JJ). The psychiatrist’s report does not answer this description. The report did no more than rehearse the account given by the appellant to the Tribunal. The psychiatrist did not express any opinion as to whether the alleged family violence had or had not occurred. The report could not have offered any assistance to the Tribunal in deciding whether the appellant and Ms W were in a married relationship. There is no jurisdictional error in the Tribunal’s failure to refer to or consider the psychiatrist report.

48    The Tribunal embarked on a review of the delegate’s decision to refuse the grant of a Partner Temporary visa and affirmed that decision. However, the Tribunal’s reasons consistently referred to cl 801.221(2), a provision that is applicable to a Partner Residence visa, not a Partner Temporary visa. The provisions to which the Tribunal ought to have referred are cl 820.211(2) and cl 820.221(1).

49    While it is apparent that the Tribunal erred by referring to the wrong clause, there are two possible ways of construing that error. The first is that it was a mere clerical error – such an error would not be jurisdictional error. The second is that the Tribunal applied the wrong legislative provision – that would be jurisdictional error.

50    However, it is unnecessary to decide whether the Tribunal’s error was jurisdictional or non-jurisdictional. That is because the error did not affect the outcome of the application before the Tribunal. The provisions of cl 820.211(2), 820.221(1) and 801.221(2) each contain a requirement that the applicant be the “spouse” of the sponsoring partner. The Tribunal decided that the applicant was never the “spouse” of Ms W as they were never in a “married relationship”, so the outcome of the application would have been the same even if the Tribunal applied the correct provisions, cl 820.211(2) and cl 820.221(1).

51    The grant of a constitutional writ is discretionary. A Court will not exercise its discretion in favour of granting constitutional writs where the Tribunal’s jurisdictional error made no difference to the outcome of the application under review by the Tribunal: see Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at [80] (Gaudron and Gummow JJ), [104] (McHugh J), [133] (Kirby J), [211] (Callinan J); SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609 at [29] (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ), [87] (Kirby J), [91] (Hayne J). Relief should be refused because, even if the Tribunal applied the incorrect criteria, its factual findings make it inevitable that the decision of the delegate to refuse a Partner Temporary visa would have been affirmed.

52    There is one other issue which should be mentioned. The visa application form required the applicant to apply for both a Partner Temporary visa and a Partner Residence visa, even though the latter could not be granted for at least two years after the Partner Temporary visa application was made. Presumably, if the delegate had granted the Partner Temporary visa, the application for a Partner Residence visa would not have been decided for at least two years. However, when the delegate refused the Partner Temporary visa, it necessarily meant that the application for a Partner Residence visa had to be rejected because a requirement of cl 801.211(2) is that the applicant be the holder of a Partner Temporary visa.

53    Although the delegate refused both the Partner Temporary visa and the Partner Residence visa, the Migration Review Tribunal’s application form allowed the applicant to specify only one of the two decisions as being for review by the Tribunal. If the Court had decided that the Tribunal’s decision to affirm the decision not to grant the appellant a Partner Temporary visa should be quashed, there might have been a problem posed by the fact that the decision to refuse the Partner Residence visa remained in force. No argument was addressed to the Court on this issue, but we point it out so that consideration might be given as to whether the application form to the Administrative Appeals Tribunal (which is not materially different to the application form to the Migration Review Tribunal) requires amendment.

54    For the reasons we have given, the appeal will be dismissed with costs.

Associate:

Dated:    22 March 2016