Federal Court of Australia

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Gupta [2022] FCAFC 51

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The judgment of the Federal Circuit Court of Australia made on 21 July 2021 in PEG257/2020 be set aside and in lieu thereof the Court orders that:

   a.    The application be dismissed.

   b.    There be no order as to costs of the application.

3.    There be no order as to costs of the appeal.

4.    The first respondent be granted a certificate to the effect that in the opinion of the Court it would be appropriate for the Attorney-General to authorise a payment under the Federal Proceedings (Costs) Act 1981 (Cth) to the first respondent in respect of the costs incurred by the first respondent in relation to the appeal.

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

REASONS FOR JUDGMENT

THE COURT:

Introduction

1    This is an appeal from orders made by a Judge of the Federal Circuit Court of Australia (as that Court was then known) (FCCA): see Gupta v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1646 (Gupta or J).

2    The FCCA Judge allowed an application for judicial review of a decision of the Administrative Appeals Tribunal. The Tribunal affirmed a decision of a delegate of the appellant (Minister) to refuse to grant the first respondent (Ms Gupta) a Partner (Migrant) (Class BC) (subclass 100) visa (permanent partner visa). The FCCA Judge ordered that:

(a)    A writ of certiorari issue quashing the Tribunal’s decision;

(b)    A writ of mandamus issue directed to the Tribunal requiring it to reconsider and determine Ms Gupta’s application for review according to law; and

(c)    The Minister pay Ms Gupta’s costs to be taxed if not agreed.

3    The background to the FCCA’s decision is set out in the FCCA Judge’s reasons at J[2]-[27] and the Tribunal’s reasons are summarised at J[28]-[54].

4    Notwithstanding that Ms Gupta held a Partner (Provisional) (Class UF) (subclass 309) visa (subclass 309 visa or provisional visa), the Tribunal concluded that Ms Gupta and her sponsoring partner had not had a genuine spousal relationship of the kind required by s 5F of the Migration Act 1958 (Cth). On that basis, the Tribunal found that cl 100.221 of Sch 2 to the Migration Regulations 1994 (Cth) was not satisfied and it was not required to address Ms Gupta’s claim that her sponsor had committed “family violence”.

5    The question before the FCCA Judge was whether the Tribunal made a jurisdictional error in so doing. The FCCA Judge held that the decision of Wigney J in El Jejieh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1103 (El Jejieh) was “directly on point” and therefore binding on that Court: J[90]. In El Jejieh at [203]-[207], Wigney J found as follows (emphasis added):

203    … One way that Mr El Jejieh was able to meet the criteria was to establish that he: was the holder of a Subclass 309 visa; was the spouse of his sponsoring partner; and two years had passed since he applied for the visa: cl 100.221(2). Another way he was able to meet the criteria was to establish that he: first entered Australia as the holder of a Subclass 309 visa; continued to hold that visa; would meet the requirements of cl 100.221(2) except that the relationship between him and his sponsoring partner had ceased; and he had suffered family violence committed by the sponsoring partner: cl 100.221(4).

204    It was tolerably clear that Mr El Jejieh was pursuing his review application before the Tribunal on the basis of cl 100.221(4). He had provided material to the Tribunal which included claims that he had suffered family violence committed by Ms Maarabani. The Tribunal was aware of those claims and asked Mr El Jejieh about them during the hearing. The Tribunal, however, made no findings concerning those claims. It found that it did not need to make any such findings because it found that there had never been a genuine spousal relationship between Mr El Jejieh and Ms Maarabani. In so finding, the Tribunal misconstrued the requirements of cl 100.221(4) and, as a result, failed to complete the exercise of its review jurisdiction.

205    The requirements of cl 100.221(4) have just been set out. They do not include a requirement that the applicant demonstrate that the applicant’s relationship with his or her sponsoring partner was a genuine relationship. The applicant does have to establish that he or she entered Australia as the holder of a subclass 309 visa and continued to hold that visa. A criterion for the grant of a subclass 309 visa is that the applicant was, at the time of application and decision, a spouse of, relevantly, an Australian citizen. Thus, if the applicant establishes that he or she held a Subclass 309 visa at the time they entered Australia and continued to hold that visa, in a sense that demonstrates that they were the spouse of an Australian citizen. But they do not need to demonstrate that fact separately. They need only demonstrate that they held and continue to hold a Subclass 309 visa.

206    It might perhaps be argued that the requirement, in cl 100.221(4)(b), which involves the cessation of the relationship between the applicant and the sponsoring partner, implies that there was a relationship in the first place. For the reasons already given, however, the relevant requirement in cl 100.221(4) is that the applicant held and continued to hold a Subclass 309 visa, not that there was a relationship. It might perhaps be added, in this context, that if the Minister became aware of information that suggested that the applicant for a Subclass 100 visa who held a Subclass 309 visa was never in a genuine relationship with his or her spouse, it would most likely be open to the Minister to cancel the applicant’s Subclass 309 visa. It would then follow that the applicant would not meet the criteria for the grant of a Subclass 100 visa. That did not, however, occur in this case.

207    Mr El Jejieh entered Australia as the holder of a Subclass 309 visa and continued to hold that visa at the time of his review application. While his relationship with Ms Maarabani had ceased by that time, he claimed that he met cl 100.221(4) because he suffered family violence committed by Ms Maarabani. The Tribunal was required to consider that claim. Its failure to do so was amounted to a failure of it to exercise its review jurisdiction.

6    The FCCA Judge concluded that the Tribunal had erred in its construction of cl 100.221(4) of Sch 2 to the Migration Regulations for the reasons set out in El Jejieh at [204] (at J[95]) and that a more recent judgment of the Federal Court in Singh v Minister for Immigration and Border Protection [2021] FCA 480 (Besanko J) (Singh) was not binding as it dealt with the interpretation of a different regulation, cl 820.221 of Sch 2 to the Migration Regulations: J[85]-[90].

7    On the appeal, the Minister accepts that the FCCA Judge correctly determined that El Jejieh was the most recent judgment of an intermediate appellate court addressing the construction of cl 100.221(4) of Sch 2 to the Migration Regulations. The Minister also accepts that the FCCA Judge was not permitted to disregard El Jejieh on the basis that the judgment was per incuriam for reasons stated by Moffitt P in Proctor v Jetway Aviation Pty Ltd [1984] 1 NSWLR 166 at 177. In that case, Moffitt P held that “the per incuriam rule is not available to a court in relation to a decision of a court superior in the hierarchy” and that “prior error in a decision can be adjusted only by a court superior in the hierarchy or in exceptional cases by the appellate court itself”. However, the Minister contends that El Jejieh was wrongly decided and the Tribunal’s approach in Ms Gupta’s case was correct.

8    For the reasons that follow, the appeal is allowed.

Background

9    Ms Gupta is a citizen of India.

Chronology of events

10    Ms Gupta entered Australia as a dependent of her first husband in June 2011. Her visa was cancelled after her first husband told the then relevant Minister’s Department on 26 June 2012 that the marriage had broken down and he no longer wished her to be included on his visa. They were divorced on 19 October 2013. Ms Gupta appealed the cancellation of her visa to the Migration Review Tribunal in December 2013. That Tribunal affirmed the cancellation decision on 30 May 2014. Ms Gupta then sought intervention by the Minister, however the Minister refused to intervene.

11    Ms Gupta claimed as follows: She met her second husband on an internet site on 8 October 2014. They met in person for the first time on 12 October 2014. Her second husband proposed marriage on 2 November 2014. They married on 10 December 2014. Ms Gupta departed Australia on 27 January 2015 (as she was required to do).

12    On 30 January 2015, Ms Gupta applied for a subclass 309 visa and a permanent partner visa. During the period they were apart, Ms Gupta and her sponsor saw each other in Thailand (April 2015) and twice when the sponsor travelled to India (September 2015 and January 2016). The subclass 309 visa was granted on 24 May 2016. She returned to Australia to live with her second husband in his home on 18 June 2016.

13    On 10 December 2016, Ms Gupta informed the Department that:

Currently I am on partner visa (subclass 309). I wanted to inform the department that my marriage has broken down due to family violence. My husband [omitted] & I have got separated today (10/12/2016). [He] told me in August 2016 that he is transgender but he knew it since a long time. But he never gave me this clue before marriage or when we met. He has given me a bunch of papers in August which shows that he has trapped me in this marriage because of his own benefit. He wanted me to be with him as lesbian. I have been sexually, emotionally, psychologically assaulted. He has threatened me of visa cancellation if we get separated. I can’t be in an abusive marriage any more so I have stepped out. If any questions please contact me.

14    Between 16 December 2016 and 10 May 2018, the Department raised a number of matters on which Ms Gupta was asked to comment and she provided further representations, including a claim of an occasion of marital rape. In accordance with reg 1.23(10)(c)(i) of the Migration Regulations, the Department referred Ms Gupta’s family violence claim to an independent expert. On 8 May 2018, the independent expert provided a report to the Department. The expert formed the opinion that Ms Gupta had not suffered family violence and that report was contested by Ms Gupta.

15    On 21 June 2018, a delegate of the Minister refused to grant Ms Gupta the permanent partner visa. Although the delegate determined that Ms Gupta and her second husband had been in a genuine, continuing and exclusive spousal relationship for the purposes of s 5F of the Migration Act, she did not meet cl 100.221 of the Migration Regulations as she was no longer “the spouse” of her second husband and she had not been found to have suffered “relevant family violence”.

16    The Tribunal made its decision to affirm the delegate’s decision on 5 August 2020. The Tribunal was not satisfied that Ms Gupta and her second husband had been in a genuine, continuing and exclusive spousal relationship or that they do not live separately and apart. The Tribunal therefore found that the requirements of s 5F(2) of the Migration Act were not met so that it was not required to address any claims of family violence.

Criteria for grant of provisional and permanent partner visas and s 5F of the Migration Act

17    The Migration Regulations relevantly provide as follows in relation to the criteria for a provisional visa:

Subclass 309 Partner (Provisional)

309.1—Interpretation

309.111

…

309.2—Primary criteria

Note: The primary criteria must be satisfied by at least 1 member of a family unit. The other members of the family unit who are applicants for a visa of this subclass need satisfy only the secondary criteria.

309.21—Criteria to be satisfied at time of application

309.211

 (1)    The applicant meets the requirements of subclause (2) or (3).

(2)    The applicant meets the requirements of this subclause if the applicant is the spouse or de facto partner of:

   (a)    an Australian citizen; or

…

(3)    The applicant meets the requirements of this subclause if:

   (a)    the applicant intends to marry:

(i)    an Australian citizen; or

…

 (b)    the intended marriage will, if it takes place, be a valid marriage for the purposes of section 12 of the Act.

Note: If the applicant is an applicant referred to in subclause 309.211(3), the marriage must have taken place before the applicant can be granted a visa of this subclass: see clause 309.224.

309.212

(1)    The spouse, de facto partner or intended spouse of the applicant is not prohibited by subclause (2) from being a sponsor.

(2)    The spouse, de facto partner or intended spouse is prohibited from being a sponsor if:

(a)    the applicant is a male person; and

(b)    the spouse, de facto partner or intended spouse is a woman who was granted a Subclass 204 (Woman at Risk) visa within the 5 years immediately preceding the application; and

(c)    on the date of grant of that visa:

(i)    the applicant was a former spouse or former de facto partner of that woman, having been divorced or permanently separated from that woman; or

(ii)    the applicant was the spouse or de facto partner of that woman and that relationship had not been declared to Immigration.

309.213

…

309.22—Criteria to be satisfied at time of decision

309.221

The applicant continues to satisfy the criterion in clause 309.211.

309.222

(1)    The sponsorship referred to in clause 309.213 has been approved by the Minister and is still in force.

Note: Regulations 1.20J, 1.20KA, 1.20KB and 1.20KC limit the Minister’s discretion to approve sponsorships.

(2)    The sponsor has consented to the disclosure by the Department, to each applicant included in the sponsorship, of any conviction of the sponsor for a relevant offence (within the meaning of subregulation 1.20KC(2)).

Note: The sponsor may be asked to consent to such disclosure on the approved form required to be completed by the sponsor in relation to the visa application.

(3)    For the purposes of subclause (2), the conviction of the sponsor for a relevant offence is to be disregarded if:

(a)    the conviction has been quashed or otherwise nullified; or

(b)    both:

(i)    the sponsor has been pardoned in relation to the conviction; and

(ii)    the effect of that pardon is that the sponsor is taken never to have been convicted of the offence.

309.223

In the case of an applicant who meets the requirements of subclause 309.211(2), the applicant continues to be the spouse or de facto partner of the person referred to in paragraph 309.211(2)(a), (b) or (c) who was the applicant’s spouse or de facto partner at the time of the application.

309.224

If the applicant is an applicant referred to in subclause 309.211(3), the marriage referred to in that subclause has taken place and the applicant continues to be the spouse of the intended spouse.

…

309.5—When visa is in effect

309.511

Temporary visa permitting the holder to travel to, enter and remain in Australia until the end of the day on which:

(a)    the holder is notified that the holder’s application for a Partner (Migrant) (Class BC) visa has been decided; or

(b)    that application is withdrawn.

18    The Migration Regulations relevantly provide as follows in relation to the criteria for the grant of a permanent partner visa:

100.21—[No criteria to be satisfied at time of application]

100.22—Criteria to be satisfied at time of decision

100.221

(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.

(2A)    The applicant meets the requirements of this subclause if:

(a)    the applicant is the holder of a Subclass 309 (Partner (Provisional)) visa which the Minister has decided, under section 345, 351, 417 or 501J of the Act, to grant to the applicant; 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 Minister made the decision mentioned in paragraph (a).

(3)    The applicant meets the requirements of this subclause if the applicant:

(a)    first entered Australia as the holder of a Subclass 309 (Partner (Provisional)) visa and continues to be the holder of that visa; and

(b)    would meet the requirements of subclause (2) or (2A) except that, after the applicant first entered Australia as the holder of the visa mentioned in paragraph (a), the sponsoring partner has died; and

(c)    satisfies the Minister that the applicant would have continued to be the spouse or de facto partner of the sponsoring partner if the sponsoring partner had not died.

(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;

(ii)    the applicant:

(A)    has custody or joint custody of, or access to; or

(B)    has a residence order or contact order made under the Family Law Act 1975 relating to;

     at least 1 child in respect of whom the sponsoring partner:

(C)    has been granted joint custody or access by a court; or

(D)    as a residence order or contact order made under the Family Law Act 1975; or

(E)    has an obligation under a child maintenance order made under the Family Law Act 1975, or any other formal maintenance obligation.

Note: For special provisions relating to family violence, see Division 1.5.

(4A)    The applicant meets the requirements of this subclause:

(a)    if the applicant held a Subclass 309 (Partner (Provisional)) visa that ceased on notification of a decision of the Minister to refuse a Subclass 100 visa; and

(b)    if the Tribunal:

(i)    has remitted that decision for reconsideration and, as a result, the Minister decides that the applicant satisfies the criteria for the grant of a Subclass 100 visa apart from the criterion that the applicant hold a Subclass 309 visa; or

(ii)    has determined that the applicant satisfies the criteria for the grant of a Subclass 100 visa apart from the criterion that the applicant hold a Subclass 309 visa.

(5)    Paragraphs (2)(c) and (2A)(c) do not apply to an applicant who at the time of making the application was in a long-term partner relationship with the sponsoring partner.

(6)    Paragraphs (2)(c) and (2A)(c) do not apply to an applicant whose sponsoring partner:

(a)    is, or was, the holder of a permanent humanitarian visa; and

(b)    before that permanent visa was granted, was in a married relationship or de facto relationship with the applicant of which Immigration was informed before that permanent visa was granted.

(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).

19    Section 5F of the Migration Act provides as follows:

5F Spouse

(1)    For the purposes of this Act, a person is the spouse of another person (whether of the same sex or a different sex) 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 a married couple 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.

Note: Section 12 also affects the determination of whether the condition in paragraph (2)(a) of this section exists.

20    For the purposes of s 5F of the Migration Act, reg 1.15A of the Migration Regulations provides 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

(b)    a Partner (Provisional) (Class UF) visa; or

(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, 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.

(4)    If the Minister is considering an application for a visa of a class other than a class mentioned in subregulation (2), the Minister may consider any of the circumstances mentioned in subregulation (3).

Submissions

Minister’s submissions

21    First, the Minister submitted that, respectfully, the analysis in El Jejieh at [205] was erroneous because his Honour held that the criteria in cl 100.221(4) of Sch 2 to the Migration Regulations “do not include a requirement that the applicant demonstrate that the applicant’s relationship with his or her sponsoring partner was a genuine relationship” but rather that the genuineness of the relationship was implicitly demonstrated because the person is required to hold a provisional visa.

22    The Minister emphasised that the criterion in cl 100.221(4)(b) expressly states that “the applicant would meet the requirements of subclause (2) or (2A) except that the relationship between the applicant and the sponsoring partner has ceased”. He submitted that:

(a)    Because of those words, cl 100.221(4)(b) requires, in terms, that consideration be undertaken (at the time the permanent partner visa decision is made) of the evidence of the relationship when it existed to determine its genuineness before its cessation;

(b)    The Minister’s contended construction of cl 100.221(4)(b) is preferable to the construction in El Jejieh because it is conceivable that a permanent partner visa applicant might have had, at some point in the past, a genuine spousal relationship with the sponsoring partner but at some later point it did not meet the requirements of s 5F of the Migration Act and (relevantly) reg 1.15A of the Migration Regulations; and

(c)    The approach adopted in El Jejieh would give cl 100.221(4)(b) no work to do and that is contrary to well-established principles of construction involving avoidance of surplusage: see Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 12-13 (Mason CJ); Project Blue Sky Inc v Australian Broadcasting Authority [1995] HCA 28; (1998) 194 CLR 355 at [71] (McHugh, Gummow, Kirby and Hayne JJ).

23    Second, the Minister submitted that:

(a)    While El Jejieh at [206] did (in part) purport to address the potential role played by cl 100.221(4)(b), it did not engage with cl 100.221(4)(b)’s terms or purpose;

(b)    The availability of a power to cancel a provisional visa if the Minister became aware that a genuine spousal relationship did not exist does not overcome the express requirement of cl 100.221(4)(b) that the applicant establish, at the time the decision is made, that he or she would meet the requirements of cl 100.221(2) or (2A) except that the relationship had ceased; and

(c)    Having regard to the cumulative nature of paragraphs of cl 100.221(4), the text of that clause makes it clear that the requirement of cl 100.221(4)(b) is in addition to the requirement that the applicant first entered Australia as the holder of a provisional visa and continues to be the holder of that visa.

24    Third, the Minister submitted that the Court’s approach in El Jejieh is inconsistent with earlier authority which Wigney J did not address as it was not drawn to his Honour’s attention. The construction point was not considered by the Judge in the FCCA or raised in the notice of appeal in El Jejieh; it was advanced by Mr El Jejieh’s counsel on the appeal with leave to rely on an amended notice of appeal over the Minister’s objection: see El Jejieh at [111].

25    The Minister relied on the following decisions made in the appellate jurisdiction of this Court in relation to decisions of the FCCA: Kaur v Minister for Immigration and Border Protection [2014] FCA 1251 (Kaur) at [43]-[44] (Murphy J); Hanna v Minister for Immigration and Border Protection [2016] FCA 282 (Hanna) at [23] (Jagot J) in each of which a Tribunal found that no genuine spousal relationship existed at any time, with the consequence that the question of family violence did not arise for consideration on the respective visa applications. The Minister relied to a lesser extent on: Hossam v Minister for Immigration and Border Protection [2016] FCA 1161 (Perry J) (Hossam), Minister for Immigration and Border Protection v Truong [2016] FCAFC 54 (Tracey, Flick, Griffiths JJ) (Truong) and Singh.

26    The Minister submitted that the Court’s approach in Kaur to cl 820.221(3)(b)(i) is correct and (as held by Jagot J in Hanna) applies equally to cl 100.221(4)(b) and (c)(i). He says that such an approach gives effect to each of the paragraphs of cl 100.221(4) and it stands to reason that a finding by the Tribunal that Ms Gupta and her sponsor had never been in a genuine spousal relationship (as required by the definition of “married relationship” in s 5F of the Migration Act) must result in a conclusion that cl 100.221(4)(b) was not capable of being met.

27    At the hearing, the Minister drew the Court’s attention to the decision in Nouv v Minister for Immigration and Multicultural Affairs [2006] FCA 1474 (Nouv) at [12]-[14] (Heerey J). The Minister submitted that Heerey J found that the grant of a provisional visa did not create a presumption of a “married relationship” for the purposes of s 5F of the Migration Act in the context of cl 100.221(3)(c).

Ms Gupta’s submissions

28    Ms Gupta’s written submissions helpfully summarise the scheme of the Migration Regulations with respect to partner visas and note the following matters (footnotes generally omitted, some inserted):

11.    A Partner (subclass 100) visa is a permanent visa. With immaterial exceptions, an applicant must apply outside Australia for this visa at the same time and place as they apply for a Partner (subclass 309) visa, a temporary visa. Similarly, when applying for the Partner (subclass 801) visa, a permanent visa, an applicant must apply for that visa in Australia at the same time and place as they apply for the Partner (subclass 820) visa. These are the only 4 visas which are referred to as partner visas in the Regulations.

12.    The general process for applying for a partner visa is an application for the relevant temporary and permanent visa is made together, the temporary version is decided by reference to time of application and time of decision criteria, and then, usually at least 2 years after the time of application, the permanent visa is decided by reference to time of decision criteria (due to the permanent visas not having time of application requirements over and above what is set out for the temporary visas).

13.    Except subclass 309 visas where prior to grant the applicant would normally be outside Australia, all partner visas have criteria that deal with 3 situations where the partner visa can be granted notwithstanding the cessation of the relationship between the applicant and sponsoring partner between the time of application and time of decision. The first of those situations is, in essence, where there is a child to which the applicant and sponsoring partner each have obligations under Family Court orders (footnote: Sch 2 cl 820.221(3), cl 801.221(4), cl 801.221(6) and cl 100.221(4)). The second is where the sponsoring partner dies, and the applicant has developed close ties to Australia (footnote: Sch 2 cl 820.221(2), cl 801.221(3), cl 801.221(5) and cl 100.221(3)). The third is where the sponsoring partner has perpetrated family violence on the applicant or a relevant child (footnote: Sch 2 cl 820.221(3), cl 801.221(4), cl 801.221(6) and cl 100.221(4)).

14.    The first and third situations have almost identical requirements, both, literally, sharing the requirement that ‘the applicant would meet the requirements of [the relevant subclauses] except that the relationship between the applicant and the sponsoring partner has ceased’ (footnote: Sch 2 cl 820.221(3)(a), cl 801.221(6)(b) and cl 100.221(4)(b)). The second situation also has the analogous provision ‘the applicant would meet the requirements of [the relevant subclauses] except that the sponsoring partner has died’ (footnote: sch 2 cl 820.221(2)(a), cl 801.221(5)(b) and cl 100.221(3)(b)). However, the second situation, notably has a further requirement not present in the first and third situations which is that ‘the applicant satisfies the Minister that the applicant would have continued to be the spouse or de facto partner of the sponsoring partner if the sponsoring partner had not died’ (footnote: Sch 2 cl 820.221(2)(b), cl 801.221(5)(c) and cl 100.221(3)(c)).

29    In relation to the interaction of cll 100.221(2) and 100.221(4)(b) (see [18] above), Ms Gupta says:

(a)    The first requirement (cl 100.221(2)(a)) is redundant as it is in the same terms as cl 100.221(4)(a);

(b)    The third requirement (cl 100.221(2)(c)) is redundant due to cl 100.221(7); and

(c)    That just leaves the second requirement (cl 100.221(2)(b)). When cl 100.221(2)(b) is inserted into cl 100.221(4)(b), it reads “the applicant would [be the spouse of the sponsoring partner at the time of the decision] except that the relationship between the applicant and the sponsoring partner has ceased”, which Ms Gupta calls the “combined criterion”.

30    Ms Gupta says that: The combined criterion simply requires that the relationship with the sponsoring partner has ceased. It is axiomatic that the cessation of the relationship would mean that the applicant could not be the spouse of the sponsoring partner. The only considered judgment on the point (which we take to be a reference to El Jejieh), the text, context and purpose of the provision all favour the interpretation for which she contends.

31    As to the text, Ms Gupta submitted that:

(a)    The Minister’s contention that her favoured interpretation of the combined criterion leaves no work for cl 100.221(4)(b) to do is misconceived. When considering the purpose of the provision, the fact that the relationship has ceased is important and only cl 100.221(4)(b) does that work;

(b)    It is notable that the text of cl 100.221(4)(b) does not require that the relationship ceased due to family violence. Nor does it require that the family violence occurred during the relationship; that work is done by the definition of when a person is taken to have suffered or committed family violence: see reg 1.23 of the Migration Regulations. This appears to be a deliberate textual choice which eschews any inquiry into the reason why the relationship ended. That being the case, it is hard to see how a relationship that could have ended for any reason could hypothetically ever be a “married relationship” as defined in s 5F at the time of decision or how there would be any utility into such an inquiry; and

(c)    The partner visa scheme does not require that s 5F be satisfied at all times. If the Minister’s construction were adopted, it begs the question of when exactly the relationship had to meet the definition of a married relationship. If it is just at some point of time before the cessation of the relationship, then that has already been determined in the process of decision-making with respect to the subclass 309 visa, as correctly pointed out by Wigney J in El Jejieh at [206]. Common sense and human experience demonstrates that just before a married relationship ceases, it may not be genuine, stable or committed; that is especially so in the case of relationships marred by family violence.

32    As to context, Ms Gupta submitted that:

(a)    As discussed above, there are four separate partner visas, three of which deal with situations where the relationship between the applicant and the sponsoring partner ceases between the time of application and time of decision and:

(i)    The situations dealing with the care of children and family violence both require satisfaction of cl 100.221(4)(b).

(ii)    The death of the sponsoring partner requires satisfaction of subclause cl 100.221(3)(b), which is relevantly identical to cl 100.221(4)(b), and cl 100.221(3)(c) which requires the applicant to satisfy the Minister that the applicant would have continued to be the spouse or de facto partner of the sponsoring partner if the sponsoring partner had not died.

(iii)    If the Minister’s construction of cl 100.221(4)(b) is preferred then that construction would apply equally to cl 100.21(3)(b) which would leave cl 100.221(3)(c) with no work to do.

(b)    The assessment of whether a married relationship exists for the purposes of s 5F and related regulations clearly contemplates evidence being provided from both parties to the relationship. For instance, some of the requirements must be addressed by evidence of joint activities. A bereaved spouse is more likely to control documents detailing joint activities and have access to witnesses than a spouse in a situation of family violence or dealing with custody of children. This must be the reason for the existence of cl 100.221(3)(c) in the case of a dead spouse and the absence of any equivalent to that provision in cl 100.221(4).

33    As to purpose, Ms Gupta submitted that:

(a)    The purpose of allowing an applicant to obtain a permanent partner visa in circumstances where the relationship with the sponsoring partner has ceased and they (or a relevant child) has suffered family violence is clearly protective. It must be to allow or encourage an applicant to leave an abusive relationship without fearing loss of a visa. That is why the relationship must have ceased;

(b)    Inquiring into whether a vulnerable, isolated woman was in a married relationship with the perpetrator of family violence which she suffered is absurd. As previously noted, establishing such a relationship requires, among other things, evidence from both parties to the relationship. The capacity of a perpetrator of family violence to sabotage their partner’s visa application by withholding important evidence is significant; and

(c)    Eschewing any inquiry into why the relationship ended offers a further protection to applicants and any inquiry is likely to be fruitless in the case of a relationship marred by family violence.

34    Ms Gupta noted that the Minister relied on the same authorities in this Court as he had relied on in the FCCA. She relied on her response which is recorded in Gupta at [66] (emphasis in the original) as follows:

The applicant’s reply submissions relevantly provide:

•    On 24 May 2021, the Minister filed and served an outline of submissions. This reply seeks to deal with the following points raised in the Minister’s outline:

i.    Whether Kaur, Truong, Hanna, Hossam and/or Singh provides an answer to the question of whether cl 100.221(4)(b) of Sch 2 of the Migration Regulations 1994 (Cth) (Regulations) requires a decision-maker to make an assessment of whether there was a genuine spousal relationship prior to the cessation of the relationship; and

ii.    Whether the Court, consistent with the principle of stare decisis, is at liberty to depart from El Jejieh.

The first issue

•    Kaur [v Minister for Immigration and Border Protection [2014] FCA 1251] was a judgment dealing with an appeal from a judgment of the Federal Circuit Court of Australia (FCCA) dismissing an application for judicial review of a decision by the Tribunal to refuse to grant the appellant a Partner (Subclass 820) visa. The Tribunal concluded, correctly, that the appellant had to satisfy the criterion contained at cl 820.211(2) of Schedule 2 to the Regulations. That criterion required the appellant to demonstrate that she was the spouse of the sponsor, meaning in simple terms that they were in a genuine spousal relationship.

•    Two things should be noted about cl 820.211. Firstly, it is required to be satisfied by an applicant at the time of application. Secondly, while it does have family violence related criteria, these criteria are only capable of satisfaction by an applicant who entered Australia on a Prospective Marriage (Subclass 300) visa. The appellant in Kaur was unable to avail herself of those criteria.

•    The claim of family violence made by the appellant in Kaur could only be relevant to the time of decision criterion contained at cl 820.221(3) of Sch 2 to the Regulations. As the Court held, uncontroversially, there is little utility in assessing a time of decision criterion if there is a time of application criterion that the appellant did not meet. It was entirely right and proper for the Tribunal in Kaur to assess whether there was a genuine spousal relationship at the time of application before assessing the family violence claims which were only relevant to a time of decision criterion.

•    In this case, the Applicant was applying for a Partner (Subclass 100) visa which has no time of application criteria. This is not a case analogous to Kaur where there was a separate time of application criterion requiring an assessment of whether the Applicant was in a genuine spousal relationship with the sponsor. As such, it is submitted that Kaur cannot provide an answer, by analogy or otherwise, to the question of whether cl 100.221(4)(b) of Sch 2 of the Regulations requires a decision-maker to make an assessment of whether there was a genuine spousal relationship prior to the cessation of the relationship.

•    [Minister for Immigration and Border Protection v] Truong [[2016] FCAFC 54] was an appeal by the Minister of a judgment of the FCCA upholding an application for judicial review of a decision by the Tribunal to refuse to grant the respondent a Partner (Subclass 801) visa.

•    It is important to understand the FCCA judgment in order to understand the appeal. Ground 1 of the amended application before the FCCA alleged that the Tribunal made a jurisdictional error by failing to have regard to 3 pages of a domestic violence order (DVO) in its assessment of whether the applicant had been in a genuine spousal relationship with the sponsor. The Tribunal could not have considered those 3 pages due to a photocopying error. Included in those pages was evidence about the residential address of the applicant and the sponsor which had tended to contradict a finding made by the Tribunal that the applicant and the sponsor had never lived together. This adverse finding was also used by the Tribunal to impugn the applicant’s credit. The learned primary judge found that the Tribunal failed to consider the 3 pages, and that the 3 pages contained evidence material to the Tribunal’s decision. Ground 1 of the amended application was upheld.

•    Although it is not clear on the face of the FCCA’s judgment which criterion the Tribunal found the applicant did not meet for the grant of the Partner (Subclass 801) visa, it is clear from the appeal that it was cl 801.221(6) of sch 2 of the Regulations. It is accepted that cl 801.221(6) is not relevantly different to cl 100.221(4).

•    The Minister’s appeal from the FCCA’s judgment was dismissed. Ground 1 complained that the learned primary judge had denied the Minister’s counsel an opportunity to be heard during the hearing. Ground 2 complained that the learned primary judge erred in finding the 3 pages of the DVO were material to the outcome of the Tribunal’s review as there was ‘virtually identical’ evidence before the Tribunal. Ground 3 complained that the learned primary judge failed to have regard to s 5F of the Migration Act 1958 (Cth) (Act) and misconstrued s 65 of the Act. Grounds 1 and 2 are not relevant for present purposes, both being resolved by the Full Court on factual bases.

•    Ground 3 essentially complained that even if the Tribunal had considered the missing 3 pages of the DVO and even if those pages contained information relevant to its task which was not otherwise before it, that, having regard to the Tribunal’s other findings and the statutory context in which it was operating, consideration of those pages could not have made a difference to the outcome of the review. Ultimately, the Full Court found that, although the 3 pages only tended to prove a single issue among many which the Tribunal found against the respondent, the resulting adverse finding as to credit permeated the entire decision and, therefore, it could not be said that the omission of the 3 pages was immaterial to the review.

•    The question of whether the analogous provision, cl 801.221(6)(b), to cl 100.221(4)(b) of Sch 2 of the Regulations requires a decision-maker to make an assessment of whether there was a genuine spousal relationship prior to the cessation of the relationship was never put in issue either at first instance or on appeal in Truong. The Full Court seems to cite Kaur at [46] for the proposition that the Tribunal was required to assess whether there was a genuine spousal relationship, even though as discussed above it does not stand for this proposition. At best, the Full Court assumes that cl 801.221(6)(b) required an assessment of whether there was a genuine spousal relationship. In the Applicant’s submission this assumption is obiter rather than ratio.

•    Hanna [v Minister for Immigration and Border Protection [2016] FCA 282] was an appeal by the appellant of a judgment of the FCCA dismissing an application for judicial review of a decision by the Tribunal to refuse to grant the appellant a Partner (Subclass 100) visa. It is the only truly comparable case to this one.

•    The important reasoning is at [24], which provides.

24.    The appellant otherwise contended by reference to numerous documents that his relationship with the sponsor had been a genuine spousal relationship involving mutual commitment at one time, so the Tribunal should have considered his family violence claims. These contentions, however, impermissibly seek to re-agitate the merits of the matter and cannot provide a basis on which to interfere with the decision of the Tribunal. The primary judge was also correct to reach the same conclusion.

•    Like Truong, Hanna cites Kaur for a proposition that, for the reasons outlined above, it does not stand for. It is accepted, however, that Hanna does stand for the proposition that cl 100.221(4)(b) of Sch 2 of the Regulations requires a decision-maker to make an assessment of whether there was a genuine spousal relationship prior to the cessation of the relationship.

•    Hossam [v Minister for Immigration and Border Protection [2016] FCA 1161] was an appeal by the appellant of a judgment of the FCCA dismissing an application for judicial review of a decision by the Tribunal to refuse to grant the appellant a Partner (Subclass 820) visa. Like Kaur, the appellant there did not satisfy the time of application criteria, so there was no utility in making an assessment of family violence claims that were time of decision. Hossam does not stand for the proposition that cl 100.221(4)(b) of Sch 2 of the Regulations requires a decision-maker to make an assessment of whether there was a genuine spousal relationship prior to the cessation of the relationship.

•    Singh [v Minister for Immigration and Border Protection [2021] FCA 480] was an appeal by the appellant of a judgment of the FCCA dismissing an application for judicial review of a decision by the Tribunal to refuse to grant the appellant a Partner (Subclass 820) visa. Like Kaur and Hossam, the Tribunal was not satisfied that appellant satisfied the time of application criterion for the grant for the visa.

•    The Court’s conclusion at [23] by reference to Kaur and Truong was correct. It provides:

23    In my opinion, there is no error in the reasons of the Federal Circuit Court. As the Federal Circuit Court held, the Tribunal’s conclusion that there was no de facto relationship did not involve jurisdictional error. In those circumstances, the Tribunal was not bound to consider the issue of family violence (Kaur v Minister for Immigration and Border Protection [2014] FCA 1251 at [43]–[44] per Murphy J; Minister for Immigration and Border Protection v Truong [2016] FCAFC 54 at [46] per Tracey, Flick and Griffiths JJ). In any event, as the Federal Circuit Court held, the Tribunal’s conclusion that there was no evidence and no claim made by the appellant of family violence has not been shown to involve error.

•    Given that the appellant had failed to satisfy the time of application criterion of being in a genuine de facto relationship, there was no need for the Tribunal to assess his family violence claims. Singh does not stand for the proposition that cl 100.221(4)(b) of Sch 2 of the Regulations requires a decision-maker to make an assessment of whether there was a genuine spousal relationship prior to the cessation of the relationship.

Migration Regulations (Amendment) Statutory Rules 1996 No. 276 (Cth) and SupplementaRY submissions

35    Shortly before the hearing, Ms Gupta drew to the Court’s attention the difference in the terms of cll 100.211 and 100.221 of Sch 2 to the Migration Regulations as at 10 December 1996 and 11 December 1996 respectively. Although it is not immediately apparent from the documents relied on by Ms Gupta, it appears that the changes were effected by instrument Migration Regulations (Amendment) Statutory Rules 1996 No. 276 (Cth) (Statutory Rules No. 276) which was gazetted on 11 December 1996.

36    Immediately prior to 11 December 1996, cll 100.211 to 100.223 relevantly provided as follows:

100.21 Criteria to be satisfied at time of application

100.211    (1) The applicant meets the requirements of subclause (2) or (3).

(2)    The applicant is the spouse of:

  (a)    an Australian citizen; or

   …

[NOTE: “Spouse” includes a de facto spouse - see the definition of “spouse” in regulation 1.03.]

(3)    The applicant meets the requirements of this subclause if:

  (a)    the applicant intends to marry:

(i)    an Australian citizen; or

…; and

(b)    the intended marriage will, if it takes place, be a valid marriage for the purposes of section 12 of the Act.

[NOTE: If the applicant is an applicant referred to in paragraph 100.211(3), the marriage must have taken place before the applicant can be granted a visa of this subclass: see clause 100.223.]

100.212    (1) If the applicant is an applicant referred to in subclause 100.211(2), the applicant is sponsored:

(a)    if the applicant’s spouse has turned 18 – by that spouse; or

(b)    if the applicant’s spouse has not turned 18 – by a parent or guardian of that spouse who:

(i)    has turned 18; and

(ii)    is:

(A)    an Australian citizen; or

…

(2)    If the applicant is an applicant referred to in subclause 100.211(3), the applicant is sponsored:

(a)    if the applicant’s intended spouse has turned 18 – by that intended spouse; or

(b)    if the applicant’s intended spouse has not turned 18 – by a parent or guardian of that intended spouse who:

(i)    has turned 18; and

(ii)    is:

(A)    an Australian citizen; or

...

 100.22 Criteria to be satisfied at time of decision

 100.221    The applicant continues to satisfy the criterion in clause 100.211.

100.222     The sponsorship referred to in clause 100.212 has been approved by the Minister and is still in force.

100.223    If the applicant is an applicant referred to in subclause 100.211(3), the marriage referred to in that subclause has taken place.

 100.224    (1) In the case of an applicant who meets the requirements of subclause 100.211(2), the applicant continues to be the spouse of the Australian citizen, Australian permanent resident or eligible New Zealand citizen who was the applicant’s spouse at the time of the application.

(2)    In the case of an applicant who meets the requirements of subclause 100.211(3), the applicant is the spouse of the intended spouse.

37    Statutory Rules 1996 No. 276 amended the Migration Regulations:

(a)    To provide for the application for the provisional visa and the permanent partner visa to be made from outside Australia and at the same time;

(b)    To remove the “time of application” criterion formerly contained in cl 100.211 that the applicant be the spouse of (relevantly) an Australian citizen;

(c)    To insert a new Part 309 substantially in the form that it now appears such that:

(i)    Clause 309.211 contained a “time of application” criterion that the applicant be the spouse of (relevantly) an Australian citizen (cl 309.211(2)) or intended to marry (relevantly) an Australian citizen in a marriage which would be a valid marriage under s 12 of the Migration Act (cl 309.211(3)); and

(ii)    Clause 309.221 contained a “time of decision” criterion that the applicant continues to satisfy the criterion in cl 309.211. Clause 309.223 contained a criterion that in the case of an applicant who meets the requirements of cl 309.211(2), the applicant continues to be the spouse of the person who was their spouse at the time of application. Clause 309.224 contained a criterion that in the case of an applicant under cl 309.211(3), the marriage referred to in that sub-clause has taken place and the applicant continues to be the spouse of the intended spouse.

38    The parties were granted leave to file written submissions related to the Statutory Rules 1996 No. 276 and its Explanatory Statement and in relation to the decision in Nouv to which the Minister drew Ms Gupta’s and the Court’s attention for the first time in the course of the hearing.

Ms Gupta’s supplementary submissions

39    In relation to Statutory Rules 1996 No. 276 and the related Explanatory Statement, Ms Gupta submitted as follows:

(a)    The simultaneous removal of the “time of application” criterion for permanent partner visas and the inclusion of the “family violence” exception in cl 100.221 passed without comment in the Explanatory Statement.

(b)    There are contextual impediments to the construction of the words in cl 100.221(4)(b) contended for by the Minister as authorising or requiring a consideration of whether the applicant was the spouse or de facto partner of the sponsor at any time in the past. That construction should be rejected because:

(i)    It requires consideration of whether a spousal or de facto relationship existed at the time of application for the permanent partner visa, a criterion specifically removed by the Statutory Rules 1996 No. 276;

(ii)    As Part 309 contains both time of application and time of decision criteria requiring that the applicant be the spouse or de facto partner of the sponsor, a finding that there never was such a relationship involves a conclusion that the decision granting the provisional visa was falsely premised. However, that is the work of the cancellation power in s 116(1)(aa) of the Migration Act which is enlivened where “the decision to grant the visa was based, wholly or partly, on the existence of a particular fact or circumstance, and that fact or circumstance did not exist”;

(iii)    Conversely, the same delegate as granted the provisional visa might refuse the permanent partner visa on inconsistent findings as to a spousal relationship or de facto relationship based on the same material: that is because, under cl 100.221(2)(c), read with cl 100.221(7), it is not necessary that two years have elapsed. The existence of cl 100.221(7) means that cl 100.221(4)(b) cannot be read as being premised on an assumption that the bona fides of the relationship is “tested” after 2 years;

(iv)    The Minister’s preferred construction of cl 100.221(4)(b) would have the peculiar consequence that, because there was no consideration of the “family violence” claim, the sponsor would not be precluded from sponsoring another applicant under reg 1.20J(1)(a)(ii) of the Migration Regulations. That regulation precludes sponsorship of a second partner visa applicant where a previous applicant was “a person who ceased a relationship of a [spousal, de facto partner or prospective spousal] kind … with the sponsor after the person, or another person mentioned in the prescribed criteria for the visa, had suffered family violence committed by the sponsor”. To expose another applicant to the prospect of family violence is obviously contrary to the manifest purpose of the “family violence” provisions.

40    Ms Gupta also submitted that Nouv is authority for the proposition that the words “would have continued to be the spouse of the sponsoring spouse if the sponsoring spouse had not died” in cl 100.221(3)(c) authorise a decision-maker to examine again whether a relevant relationship existed at the time of the decision. She says that, if Nouv is correct, it is consistent with Ms Gupta’s argument that such an examination would not be authorised by cll 100.221(3)(b) and (4)(b) as otherwise, cl 100.221(3)(c) has no work to do.

The Minister’s supplementary submissions

41    The Minister submitted that Ms Gupta’s supplementary submissions do not point to any true contextual consideration that undermines the meaning of the clear text of cl 100.221 and the Minister’s preferred construction of cl 100.221(4)(b) because:

(a)    A decision-maker’s finding that no genuine spousal relationship ever existed does not undermine an earlier decision to grant a provisional visa. The decision-maker on the permanent partner visa application has a duty to make a decision by reference to his or her own assessment of the merits of the application based on the materials then before the decision-maker and a proper construction of the criteria for the grant of the permanent partner visa. That decision-maker does not conduct a review of the decision to grant the provisional visa and that decision is neither affirmed nor set aside;

(b)    It does not aid the constructional issue before the Court that there may be cases where the decision-maker/s in relation to the provisional visa and the permanent partner visa might have the same material before them, notwithstanding that a period of time has passed. It is clear that cl 100.221(4) was designed to ensure that an assessment of the genuineness of the relationship before it ceased is to be conducted before the grant of the permanent partner visa; and;

(c)    Regulation 1.20J does not aid in the construction of cl 100.221(4). Regulation 1.20J is a restriction on sponsorship. Clause 100.221(4) has entirely different work to do. Ms Gupta’s submission that the Minister’s construction of cl 100.221(4) would expose another applicant to the prospect of family violence is not only inaccurate but assumes, without explanation, that the purpose of the scheme reflected in cl 100.221(4) is merely to provide some form of protection for people who have suffered domestic violence. That is not the manifest purpose of the scheme. Rather, it is designed not to deprive visa applicants of a permanent partner visa where, among other things, the applicant was in a genuine relationship with the sponsor, the relationship ceased, and the applicant has suffered family violence. It is not to enable the grant of a permanent partner visa where no relationship of spouse or de facto partner of the sponsor existed.

42    The Minister submitted that Nouv does not support Ms Gupta’s contention that cl 100.221(3)(c) would be rendered otiose if cl 100.221(3)(b) were construed consistently with the Minister’s preferred construction of cl 100.221(4)(b). Rather, Nouv at [12]-[14] is consistent with the Minister’s approach. In any event, cl 100.221(3)(c) imports a requirement that is additional to the requirements of cl 100.221(3)(b). It concerns a prospective inquiry; it is therefore a different inquiry from that required by cl 100.221(3)(b).

Consideration

43    In our opinion, the correct interpretation of cl 100.221(4) of the Migration Regulations is that, at the time of decision, the decision-maker must be satisfied that:

(a)    The applicant for a permanent partner visa holds a subclass 309 visa: cl 100.221(4)(a); and

(b)    The married or de facto relationship within the meaning of s 5F or s 5CB of the Migration Act between the permanent partner visa applicant and the sponsoring partner had “ceased”: cl 100.221(4)(b); and

(c)    Since the applicant for the permanent partner visa arrived in Australia as the holder of that subclass 309 visa, the sponsor committed family violence (see Div 1.5 of the Migration Regulations) on the visa applicant or a member of the family unit of the visa applicant, the sponsor or both: cl 100.221(4)(c)(i); or

(d)    The applicant for the permanent partner visa has custody or joint custody of, or access to, or has a residence order or contact order made under the Family Law Act 1975 (Cth) relating to at least one child in respect of whom the sponsor has been granted joint custody or access by a court or has a residence order or contact order, or has an obligation under a child maintenance order made under the Family Law Act, or any other formal maintenance obligations.

44    Accordingly, we agree with the finding of Jagot J in Hanna at [23] that where the Tribunal found that no marital or de facto relationship as defined in s 5F (and s 5CB) existed at any time, the consequence was that the question of family violence did not arise for consideration. That is so even though we accept that the reasoning in Kaur at [43]-[44] (Murphy J) (on which Jagot J relied) related to a finding of the Tribunal in relation to the failure to satisfy the time of application criterion in cl 820.211 in determining to affirm a decision to refuse a provisional visa under cl 820.221 without considering whether a claim to family violence was made out.

45    Neither the adoption of the form of cl 100.221 by the Statutory Rules 1996 No. 276 nor anything said in its Explanatory Statement requires a different conclusion. We do not accept that our preferred interpretation of cl 100.221(4)(b) has the effect of re-introducing a time of application criterion which was removed by the Statutory Rules 1996 No. 276 when cl 100.211 was deleted.

46    With respect, we do not agree with the reasoning in El Jejieh at [204]-[206]. We note that the issue of the construction of cl 100.221(4)(b) was neither considered by the FCCA Judge nor raised in the notice of appeal in El Jejieh; it was advanced by Mr El Jejieh’s counsel on the appeal with leave to rely on an amended notice of appeal over the Minister’s objection: see El Jejieh at [111]. The decisions in Kaur and Hanna are not referred to in El Jejieh and they do not appear to have been drawn to Wigney J’s attention.

47    We do not accept that the criterion in paragraph (a) of cll 100.221(2), (2A), (3) and (4), that the applicant must hold a subclass 309 visa, creates any presumption that a married or de facto relationship existed such that the Tribunal needed only to consider whether it had ceased for the purposes of cl 100.221(4)(b). The existence of that criterion only serves the purpose of establishing the first part of the two part process instigated by the Statutory Rules 1996 No. 276. Holding that visa is a necessary precursor to the second step of considering whether to grant a permanent partner visa. That second step usually occurs after a period of at least two years has elapsed, albeit that the Minister has the discretion under cl 100.221(7) to refuse or grant the visa at an earlier time.

48    With respect, in our view the interpretation of cl 100.221(4) proposed by Ms Gupta and accepted by Wigney J for the reasons set out in El Jejieh at [204]-[206] gives no weight to the express words of cl 100.221(4)(b). For the decision-maker to be in a position to determine that a relationship meeting the requirements of cl 100.221(2)(b) or cl 100.221(2A)(b) has “ceased”, the decision-maker must first be satisfied that it existed. If it were otherwise there is no work given to the requirement that “the applicant would meet the requirements of subclause (2) or (2A), except that…”. All words must prima facie be given some meaning and effect: Commonwealth v Baume [1905] HCA 11; (1905) 2 CLR 405 at 414; Project Blue Sky Inc at [71].

49    As accepted by Heerey J in Nouv at [14], the decision-maker at the time the permanent partner visa is granted or refused may have additional and different evidence bearing on the parties’ relationship than a decision-maker had at the time the decision to grant the subclass 309 visa was made. Indeed, it is most likely that there will be new evidence, including evidence of family violence. That was demonstrated in this case. In our opinion, the finding at DR[71] was open to the Tribunal on the evidence before it, some of which related to issues which only became apparent after Ms Gupta arrived in Australia as the holder of the provisional visa:

Having considered the evidence and weighed all aspects of the circumstances of the applicant, the Tribunal has formed a view that the applicant married the sponsor with the sole aim of obtaining a migration outcome to remain in Australia. They lived together for only a short period of time and developed no strong financial ties or developed plans for a future together. The sponsor’s commitment to the marriage is also called into question on the basis of his failure to declare his desire to transition to a woman. The motives and intentions of both parties are not consistent with having a mutual commitment to a shared life together.

50    We accept the Minister’s submission that there is no basis in the Migration Regulations for saying that the decision-maker must accept as correct a decision to grant a provisional visa. In our view, it is central to the scheme of Part 309 and the related provisions dealing with the grant of permanent partner visas that there is or has been a genuine married or de facto relationship of the kind contemplated by ss 5F or 5CB of the Migration Act: see cl 309.211 (time of application criterion), cl 309.221 (time of decision criterion) and cll 100.221(2), (3) and (4) (time of decision criterion).

51    The decision-maker on the permanent partner visa application has a duty to make a decision by reference to his or her own assessment of the merits of the application based on the materials then before the decision-maker and on a proper construction of the criteria for the grant of the permanent partner visa. That decision-maker does not conduct a review of the decision to grant the provisional visa and that decision is neither affirmed nor set aside by the decision to grant or refuse the permanent partner visa. We do note that cl 309.511 provides that the provisional visa terminates upon the decision with respect to the permanent partner visa being made. Having regard to the existence of cl 309.511, we do not agree that if the decision-maker comes to the view that the required married or de facto relationship has never existed then the necessary course is to cancel the subclass 309 visa, rather than refuse the permanent partner visa. It appears to us that either course is open to the decision-maker.

52    The practical issue that, in some cases, it may be easier for a widow to establish that a genuine married or de facto relationship existed than it is for a victim of family violence does not aid in interpretation of cl 100.221(4).

53    It might readily be accepted, as Ms Gupta contended, that the introduction of cl 100.221(4) materially in its current form on 11 December 1996 was designed to protect applicants for permanent partner visas from having to remain in a married or de facto relationship with a sponsor who, after that applicant arrived in Australia on a subclass 309 visa, committed family violence against that applicant or a member of the family unit of the sponsor or the applicant or both. It does not follow from that that cl 100.221(4)(b) does not require the decision-maker to be satisfied that it was a genuine married or de facto relationship that ceased, having regard to the centrality of such a genuine relationship to the partner visa scheme. Further, the fact that cl 100.221(4) also applies to the situation where the visa holder has custody, residence or contact orders in relation to children of the sponsor is not a contextual reason to adopt Ms Gupta’s preferred interpretation of that clause. It appears to be designed to accommodate a situation where separation or divorce has ended a genuine married or de facto relationship where there has been no family violence.

54    We do not accept Ms Gupta’s argument that the existence of cl 100.221(7) serves to negate the criterion in cl 100.221(2)(c) which is incorporated into cl 100.221(4)(b). The apparent purpose of the two year period is to see what happens after the visa applicant arrives in Australia, a matter which may well go to whether or not the relevant committed and genuine relationship ever existed. That is apparent from the fact that cl 100.221(5) exempts an applicant who has been in a “long-term partner relationship” with the sponsoring partner from compliance with that 2 years period. The exemption in cl 100.221(7) is plainly designed to allow the Minister to waive the requirement where a sponsoring partner has died or there has been family violence but the Minister is not required to do so.

55    We also do not accept Ms Gupta’s contention that cl 100.221(3)(c) would be deprived of work to do if her interpretation is rejected. While it is true that cl 100.221(3)(b) is relevantly in the same form as cl 100.221(4)(b), cl 100.221(3)(c) requires consideration of a different issue: whether the applicant would have continued to be in a genuine married or de facto relationship into the future if the sponsor had not died. That is a forward looking criterion which does different work to that required under cl 100.221(3)(b).

56    Further, we do not consider the terms of reg 1.20J to be a contextual consideration favouring Ms Gupta’s preferred interpretation of cl 100.221(4). Regulation 1.20J provides as follows:

1.20J Limitation on approval of sponsorships—spouse, partner, prospective marriage and interdependency visas

(1AA)    This regulation applies in relation to an application for:

(b)    a Partner (Provisional) (Class UF) visa; or

(c)    a Prospective Marriage (Temporary) (Class TO) visa; or

(e)    an Extended Eligibility (Temporary) (Class TK) visa; or

(f)    a Partner (Temporary) (Class UK) visa.

(1)    Subject to subregulations (2) and (3), if a person applies for a visa mentioned in subregulation (1AA) as the spouse, de facto partner or prospective spouse of the sponsor, the Minister must not approve the sponsorship of the applicant unless the Minister is satisfied that:

(a)    not more than 1 other person has been granted a relevant permission as:

(i)    the spouse, de facto partner or prospective spouse of the sponsor on the basis of a sponsorship or nomination; or

(ii)    a person who ceased a relationship of a kind mentioned in subparagraph (i) with the sponsor after the person, or another person mentioned in the prescribed criteria for the visa, had suffered family violence committed by the sponsor; and

(b)    if another person has been granted a relevant permission in the circumstances referred to in paragraph (a)—not less than 5 years has passed since the date of making the application for that relevant permission; and

(c)    if the sponsor was granted a relevant permission as the spouse, de facto partner or prospective spouse of another person on the basis of a sponsorship or nomination—not less than 5 years has passed since the date of making the application for that relevant permission.

(1A)    In subregulation (1):

relevant permission means:

(a)    in relation to an application for a visa referred to in subregulation (1AA) made during the period from 1 November 1996 to 30 June 1997 (inclusive)—a visa; and

(b)    in relation to an application for a visa referred to in subregulation (1AA) made on or after 1 July 1997—permission (other than a visa or entry permit) granted under the Act to remain indefinitely in Australia, a visa or an entry permit.

(2)    Despite subregulation (1), the Minister may approve the sponsorship of an applicant for a visa if the Minister is satisfied that there are compelling circumstances affecting the sponsor.

57    As we understand Ms Gupta’s submission, it is that if the Tribunal makes no finding where there is a claim of family violence, then the visa applicant’s sponsor will be free to sponsor another person who would be exposed to similar family violence and cl 100.221(4) should be interpreted so as to prevent that outcome. We do not accept that submission.

58    Regulation 1.20J is one of a number of regulations which go to the issue of the Minister’s approval of sponsorship of a subclass 309 visa. Those regulations do not rely on the Tribunal’s determination:

(a)    Family violence can be established if it is judicially determined in the ways set out in reg 1.23(2), (4), and (6). Under reg 1.23(10), the delegate must consider a non-judicially determined family violence claim. Accordingly, the relevant Department will have records of such claims concerning a sponsor and whether or not they were accepted. If they were not accepted, they will also have a record of an independent expert’s report in relation to the claim. As an aside we note that reg 1.23 in each case requires the family violence to have occurred while the married or de facto relationship existed. In our view, that requirement supports the interpretation of cl 100.221(4) which we have found;

(b)    Subject to exceptions, the Minister must also refuse to approve sponsorship where the sponsor has been convicted of a “relevant offence” (defined in reg 1.20KC(2)) and has a significant criminal record of such offences (defined in reg 1.20KD). Regulation 1.20KC(2) defines “relevant offence” to include: violence against a person, including (without limitation) murder, assault, sexual assault and the threat of violence; harassment, molestation, intimidation or stalking of a person; breach of an apprehended violence or similar order under a law of a State or Territory or a foreign country; firearms or other dangerous weapons, people smuggling or human trafficking, slavery or slavery-like practices (including forced marriage), kidnapping or unlawful confinement; or attempting to commit, or aiding, abetting, counselling or procuring any of those offences;

(c)    Under reg 1.20KC, the Minister can request a sponsor to provide a police check in relation to the sponsor from any jurisdiction in Australia or a foreign country in which the sponsor has lived for at least 12 months (or periods in aggregate of at least 12 months). The Minister may refuse a subclass 309 visa if the sponsor does not provide the police check within a reasonable time. A check of that kind is likely to disclose registrable and relevant offences and other offences indicative of family violence.

Orders made by the FCCA and costs

59    In the notice of appeal and in his submissions in chief on the appeal, the Minister sought orders from this Court that the FCCA’s orders be set aside, that Ms Gupta’s application be dismissed and that Ms Gupta pay the Minister’s costs of those proceedings fixed in an amount of $7,467. However, at the hearing of the appeal, the Minister submitted that the FCCA Judge’s costs order should be set aside and an order should instead be made that each party bear its own costs. The Minister also sought his costs of the appeal.

60    Ms Gupta first submitted that, as this is an appeal on a question of law with no controversy as to the underlying facts, the Court should issue a certificate pursuant to s 6(1) of the Federal Proceedings (Costs) Act 1981 (Cth) because:

(a)    She is eligible for such a grant;

(b)    While the identification of jurisdictional error could always be argued to involve a question of law, many appeals turn on questions of fact such as “was a particular claim made?”, “was there notice given to the applicant of adverse information?” and “did the decision-maker in fact consider specific material?”. In contrast, the present matter dealt with a pure question of law involving the construction of cl 100.221(4)(b). The facts were entirely uncontroversial; and

(c)    This appeal deals with a question of significant importance, not only for Ms Gupta, but also for applicants more generally who seek to satisfy the requirements for a permanent partner visa based on a claim to have suffered family violence. It is generally desirable in cases of such importance for both parties to be represented and that one of them not be wholly reliant on pro bono representation. The issuing of a costs certificate will encourage lawyers to continue to represent clients with limited resources on a “no win – no fee” or “low fee” basis.

61    The Minister submitted that it was a matter for the Court as to whether a costs certificate should be issued.

62    Ms Gupta submitted that the costs order made by the FCCA should not be disturbed because:

(a)    The Minister had an opportunity to challenge the decision in El Jejieh after the FCCA’s decision in Sharma v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 3372 (Sharma), in which the FCCA Judge doubted the correctness of the decision in El Jejieh but felt bound to follow it. While the Minister’s decision not to appeal El Jejieh was understandable due to the “myriad errors identified by the Court in that case”, had the Minister appealed the decision in Sharma, a different course could have been taken in the FCCA, minimising the costs incurred by both parties and Ms Gupta would not have been exposed to liability for costs on “an expensive appeal run by the Minister briefing senior counsel”; and

(b)    Instead of conceding that the FCCA Judge was bound to follow El Jejieh, which would have minimised costs in that proceeding, the Minister advanced a number of submissions about authorities and stare decisis which were abandoned in his submissions on the appeal at [12] (see [7] above).

63    We accept that the way the Minister ran his defence of Ms Gupta’s application in the FCCA is likely to have required Ms Gupta to incur unnecessary expense and that the concessions made in the Minister’s submissions at [12] should properly have been made in the FCCA. The issue of the correct interpretation of cl 100.221(4) could also have been addressed by appealing Sharma. In those circumstances, we will order that the costs order made by the FCCA Judge be set aside and instead order that there be no order as to costs.

64    In Minister for Immigration and Border Protection v MZZMX (No 2) [2020] FCAFC 214 at [4]-[6] (Murphy, O’Callaghan, Anastassiou JJ), the Court set out the principles relevant to the grant of a costs certificate in relation to an appeal as follows:

Court’s discretion to grant a costs certificate

4    Section 6 of the [Federal Proceedings (Costs) Act] relevantly provides:

Costs certificates for respondents--Federal appeals

(1)    Subject to this Act, where a Federal appeal succeeds on a question of law, the court that heard the appeal may, on the application of a respondent to the appeal, grant to the respondent a costs certificate in respect of the appeal.

…

(3)    The certificate that may be granted under subsection (1) or (2) by a court to a respondent to a Federal appeal is a certificate stating that, in the opinion of the court, it would be appropriate for the Attorney-General to authorize a payment under this Act to the respondent in respect of:

(a)    the costs incurred by the respondent in relation to the appeal; and

(b)    any costs incurred by an appellant in relation to the appeal that have been, or are required to be, paid by the respondent to the appellant in pursuance of an order of the court, not being costs to which a costs certificate granted under section 7 relates.

5    Section 3(fa) of the [Federal Proceedings (Costs) Act] defines a ‘Federal appeal’ to include an appeal to the Federal Court from a judgment of the Federal Circuit Court. Accordingly, the threshold criterion in s 6(1) of the [Federal Proceedings (Costs) Act] is satisfied in the present case, the appeal being a Federal appeal and one which succeeded on a question of law: see Minister for Immigration and Border Protection v MZZMX [2020] FCAFC 175 at [23]-[28]. It follows that the only issue to determine is whether the discretion to grant a costs certificate should be exercised in favour of the First Respondent.

6    The discretion conferred by s 6(1) is a broad one: see, eg, Minister for Immigration and Border Protection v Kaur (No 2) [2015] FCA 748 at [5] (Yates J); Minister for Immigration and Citizenship v SZNVW (No 3) [2010] FCAFC 102 at [3] (Keane CJ, Emmett and Perram JJ); Minister for Immigration and Citizenship v Khadgi (No 2) [2010] FCAFC 152 at [5] (Stone, Foster and Nicholas JJ). Relevant considerations include:

(a)    whether there are any matters which would disentitle the respondent to the issue of a certificate, such as the conduct of the respondent in respect of the litigation and any prejudice thereby occasioned to the appellant: see, eg, Minister for Immigration and Citizenship v Kamruzzaman [2011] FCA 1095 at [19] (Greenwood J); Minister for Immigration and Border Protection v CQZ15 (No 2) [2018] FCAFC 19; 259 FCR 569 at [29] (Kenny, Tracey and Griffiths JJ);

(b)    whether the respondent is an individual or a well-resourced company or government entity: see, eg, Minister for Immigration and Citizenship v Sok (No 2) [2008] FCAFC 52 at [9] (French, Lindgren and Jacobson JJ); Kamruzzaman at [18];

(c)    whether the decision on the appeal was significant beyond the particular case and had wider importance or relevance to the administration of the Migration Act 1958 (Cth): see, eg, SZNVW at [3]; CQZ15 (No 2) at [29];

(d)    whether it would have been unreasonable or unrealistic to expect the respondent to have undertaken the burden of the appeal without legal representation: see, eg, Kaur at [10]; and

(e)    whether the existence of a debt to the Commonwealth may provide a basis for refusing the grant of visas other than protection visa pursuant to Schedule 4, item 4004 of the Migration Regulations 1994 (Cth): see, eg, SZNVW at [4].

65    We are satisfied that that the threshold criteria under ss 3 and 6 of the Federal Proceedings (Costs) Act are met.

66    An award of costs will usually, though not invariably, be made in favour of a successful party against an unsuccessful party. However, the disposition of costs is at the discretion of the Court and it is a discretion to be exercised judicially, having regard to the justice of the case in all the circumstances.

67    We will make no order as to costs on the appeal. We accept that the issue of the correct interpretation of cl 100.221(4) of Sch 2 to the Migration Regulations has importance and it required clarification following the decision in El Jejieh. We also accept that the Minister might have obtained that clarification by appealing the decision in Sharma but did not do so which meant that Ms Gupta was entitled to consider that her application to the FCCA had good prospects of success and she is bearing her own costs of that application. An order that the parties bear their own costs was made in a number of cases relied on by the Minister in Minister for Immigration and Border Protection v CQZ15 (No 2) [2018] FCAFC 19; 259 FCR 569 at [16] (Kenny, Tracey, Griffiths JJ) and that was the approach adopted in that case.

68    The Minister did not oppose the grant of the certificate and he did not bring to our attention any conduct of Ms Gupta which would disentitle her to be granted one nor have we observed any. She is an individual and we accept that it would have been unreasonable or unrealistic to expect her to have undertaken the burden of the appeal without legal representation.

69    In all of those circumstances, we consider that it is appropriate to grant Ms Gupta a certificate in relation to her costs of the appeal.

Disposition

70    We will make orders accordingly.

Associate:

Dated:    31 March 2022