FEDERAL COURT OF AUSTRALIA

Kaur v Minister for Immigration and Border Protection [2014] FCA 1251

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The Appellant pays the First Respondent’s costs.

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

REASONS FOR JUDGMENT

introduction

1    The appellant, Ms Manpreet Kaur, is an Indian national. She appeals from a decision of the Federal Circuit Court on 19 June 2014 dismissing her application for judicial review of a decision of the Migration Review Tribunal (“the Tribunal”) (Kaur v Minister for Immigration and Border Protection and Another [2014] FCCA 1282). The Tribunal affirmed a decision of a delegate of the first respondent, the Minister for Immigration and Border Protection, to refuse the appellant a Partner (Temporary) (Class UK) Subclass 820 visa (“partner visa”).

2    The appellant made an application for a partner visa to the Department of Immigration and Citizenship on 11 April 2012. On 14 December 2012 a delegate of the Minister (“the delegate”) refused to grant the application pursuant to s 65 of the Migration Act 1958 (Cth) (“the Act”).

3    The appellant then sought review by the Tribunal. However, on 15 November 2013 the Tribunal affirmed the delegate’s decision.

4    On 29 November 2013 the appellant sought judicial review of the Tribunal’s decision by application to the Federal Circuit Court. The task of the Court in dealing with that application was restricted to the question of whether the Tribunal’s decision was affected by jurisdictional error. The Federal Circuit Court dismissed the application on 19 June 2014.

5    The appellant now appeals to this Court against the decision of the Federal Circuit Court. The task before this Court is to determine whether the primary judge erred in dismissing the application for review and the scope of this Court’s jurisdiction is restricted by the same considerations as applied in the Court below.

6    For the reasons set out I consider the learned primary judge did not err in dismissing the appellant’s application for review, and I dismiss the appeal.

factual background

7    The appellant was born in 1982 and she first arrived in Australia on 6 April 2009 as the holder of a Subclass 572 student visa. She met the man she later married, Luke Dennis Venness, at the Sydney Opera House on 7 March 2011 and they had commenced what the appellant described as a serious relationship by 10 July 2011. Mr Venness is a citizen of Australia who was unemployed at the time and ten years the appellant’s junior.

8    The appellant states that Mr Venness asked her to marry him on Christmas Day 2011 and they married on 21 March 2012. The appellant applied for a partner visa on 11 April 2012 and was sponsored in the application by Mr Venness. She claimed that:

(1)    she was in a relationship with Mr Venness, her sponsor, who was an Australian citizen; and

(2)    she and Mr Venness were married on 21 March 2012.

9    The appellant and Mr Venness provided some evidence regarding the inception and development of their relationship, including photographs of the wedding and statutory declarations from two friends who declared that the marriage was genuine.

10    On 16 August 2012, before her visa application had been dealt with, the appellant said that she suffered family violence at the hands of Mr Venness and had been forced to flee their home. She provided the following material in support of her claim:

(a)    her statutory declaration of 10 August 2010;

(b)    a social worker/counsellor’s statutory declaration of 13 August 2012; and

(c)    a psychologist’s statutory declaration of 14 August 2012.

11    As I have said, the delegate refused to grant the appellant a partner visa, and that decision was affirmed by the Tribunal. The Federal Circuit Court dismissed the application for judicial review.

The Decision of the delegate

12    The decision of the delegate has been overtaken by a full merits hearing by the Tribunal and it is unnecessary to deal with the delegate’s decision in any detail.

13    It suffices to note that the delegate found that the appellant did not satisfy cl 820.211 of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”) and on that basis the delegate refused to grant the appellant a partner visa. In particular, the delegate found that the appellant and Mr Venness were not in a spousal relationship as defined by s 5F of the Act, and as a result he considered it unnecessary to deal with the appellant’s claim of domestic violence.

The Tribunal Decision

14    Following receipt of the application, on 14 January 2013 the Tribunal invited the appellant to provide additional material or written arguments in relation to the delegate’s decision but she did not submit any further information.

15    On 10 September 2013 the Tribunal wrote to the appellant informing her that the Tribunal had considered the material before it but that it was unable to make a favourable decision on that information alone. The Tribunal invited the appellant to give evidence and present arguments at a hearing on 14 November 2013.

16    On 14 November 2013 the appellant appeared before the Tribunal with a registered migration agent and with the assistance of an interpreter. The hearing was conducted in English and Punjabi as required. She gave evidence and presented arguments in support of her application.

17    The appellant provided a marriage certificate to the Tribunal that indicated that she married Mr Venness on 21 March 2012 at Quakers Hill, NSW. Two witnesses, Satinder Singh and Baljeet Sanger, provided statutory declarations that the marriage was genuine and gave evidence to that effect. The Tribunal accepted that the appellant and Mr Venness were married to each other by a marriage that was valid for the purposes of the Act.

18    The appellant also adduced evidence to the Tribunal in relation to her claim that she had suffered domestic violence at the hands of Mr Venness.

19    The Tribunal’s statement of decision and reasons firstly noted that the appellant claimed to be the spouse of a sponsor, Mr Venness, who is an Australian citizen for the purposes of cl 820.211(2)(a) and 820.221 of the Regulations. By reference to the appellant’s circumstances and by a process of elimination in relation to the various other eligibility requirements under cl 820.211, the Tribunal concluded (correctly in my view) that cl 820.211(2) of Schedule 2 to the Regulations was the only subclause relevant to the application.

20    However, the Tribunal was not satisfied that the appellant satisfied the criteria for a partner visa as provided for in Part 820 of Schedule 2 to the Regulations. The Tribunal reached this view by considering the definition of “spouse” contained in s 5F of the Act which provides:

(1)    For the purposes of this Act, a person is the spouse of another person if, under subsection (2), the 2 persons are in a married relationship.

(2)    For the purposes of subsection (1), persons are in a married relationship if:

(a)    they are married to each other under a marriage that is valid for the purposes of this Act; and

(b)    they have a mutual commitment to a shared life as husband and wife to the exclusion of all others; and

(c)    the relationship between them is genuine and continuing; and

(d)    they:

(i)    live together; or

(ii)    do not live separately and apart on a permanent basis.

(3)    The regulations may make provision in relation to the determination of whether one or more of the conditions in paragraphs (2)(a), (b), (c) and (d) exist. The regulations may make different provision in relation to the determination for different purposes whether one or more of those conditions exist.

21    The Tribunal also had regard to reg 1.15A which set out further matters to be considered in assessing whether a spouse relationship exists for the purposes of the regulations. It relevantly provides:

(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.

…

(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.

22    Having regard to the evidence before it the Tribunal determined that:

(a)    there was no evidence that the appellant and Mr Venness had pooled their resources;

(b)    there was no objective evidence that the parties had established a joint household, including that the parties shared household responsibilities; and

(c)    it was not sufficient to satisfy the Tribunal that the appellant and Mr Venness were viewed by family and friends to be in a committed relationship;

(d)    statements in the statutory declarations regarding the legitimacy of their relationship were “general and unconvincing” and the Tribunal noted that the appellant had not met any of Mr Venness’s immediate family;

(e)    there was no objective evidence before the Tribunal that the appellant and Mr Venness lived together and no evidence that they:

(i)    had a mutual commitment to the relationship;

(ii)    provided emotional support to each other; or

(iii)    made long term plans for the future.

23    As a result of these findings the Tribunal was not satisfied, either at the time of the appellant’s application for a partner visa or at the time of the Tribunal’s decision, that the appellant and Mr Venness were in a spousal relationship as required by s 5F of the Act. The Tribunal therefore held that the appellant did not meet the criteria in cl 820.211(2)(a) and cl 820.221.

24    While the Tribunal acknowledged that the appellant had made a claim that she was a victim of family violence pursuant to cl 820.221(3)(b)(i), the Tribunal decided that, before it was required to deal with this claim, the Tribunal must be satisfied that the appellant would have satisfied cl 820.211(2) had the relationship not ceased. As the Tribunal could not be satisfied that the appellant and her sponsor were in a spousal relationship for the purposes of cl 820.211(2), the Tribunal did not turn to assess the appellant’s claims of family violence.

25    On 15 November 2013 the Tribunal affirmed the delegate’s decision to refuse to grant the partner visa.

Federal Circuit Court Decision

26    On 29 November 2013 the appellant filed an application to the Federal Circuit Court seeking judicial review of the Tribunal’s decision. The appellant set out the following grounds of review:

(a)    she was not satisfied with the Tribunal decision;

(b)    she believed that she had true relations with her ex-husband; and

(c)    she had proven that she suffered domestic violence at the hands of her ex-husband.

The application was supported by an affidavit of the appellant sworn 29 November 2013, which added nothing.

27    The application was heard by the Federal Circuit Court on 16 June 2014, and on 19 June 2014 the learned primary judge dismissed the application with costs.

28    His Honour noted that the appellant had filed a statutory declaration from Satinder Pal Singh, made on 16 May 2014 which attested to matters concerning the relationship between the appellant and her sponsor. His Honour ruled that the new evidence could not be submitted for the purposes of a judicial review application.

29    The primary judge then turned to consider the legislative framework surrounding the appellant’s visa application and the various the grounds of review submitted by the appellant.

30    First, his Honour noted that the ground of appeal that the appellant was not satisfied with the decision of the Tribunal did not allege, let alone establish, jurisdictional error by the Tribunal.

31    Second, his Honour held that the fact that the appellant believed that she was in a true relationship with her ex-husband did not allege, let alone establish, that the decision of the Tribunal was attended by jurisdictional error. The learned primary judge noted that it is not the role of the Court to engage in fact-finding as to do so would be to impermissibly consider the merits of the decision rather than its legality: Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ. As his Honour explained, the Tribunal was not obliged to accept all or any part of the appellant’s evidence: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J. His Honour held that the Tribunal determined the relationship between the appellant and her sponsor by reference to the statutory definition of “spouse” in the Act and that no jurisdictional error was established under this ground of review.

32    Third, his Honour considered whether the Tribunal’s decision suffered from a jurisdictional error because the Tribunal failed to consider and assess the applicant’s claims of family violence. His Honour cited, with approval, Alsalem v Minister for Immigration, Multicultural Affairs and Citizenship and Another [2013] FCCA 1407 (“Alsalem”) at [17] where Cameron J explained:

A large part of the application and the applicant’s submissions at the hearing of this matter turned on the absence from the Tribunal’s reasons of any reference to the applicant’s allegation that he had been a victim of domestic violence at the hands of his former wife, the sponsor. However, in the circumstances, the Tribunal was not required to consider that issue. The issue of domestic violence, or family violence as it is termed in the Regulations, will only arise for consideration if the Tribunal considers that the parties to a spousal relationship were in a genuine relationship at the time one of them made an application for a spouse visa. This is apparent from the terms of cl.820.221(3) of sch.2 to the Regulations ...

His Honour also cited Yang v Minister for Immigration and Border Protection and Another [2014] FCCA 20 at [28]–[36]; Guven v Minister for Immigration and Multicultural and Indigenous Affairs and Another [2006] FMCA 311 at [24]–[25]; Collins v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FMCA 571 at [42].

33    The learned primary judge held the Tribunal was not bound to consider the matter of family violence in the present case as the parties were not in a genuine spousal relationship at the time of the application. This ground also failed.

34    The application for review was dismissed with costs.

the Appeal to this Court

35    Although somewhat difficult to understand, on a generous construction for the appellant, the appeal to this Court is based on the grounds that she:

(a)    is not satisfied with the Federal Circuit Court decision;

(b)    believes that she had a legitimate relationship with her ex-husband;

(c)    believes that she can prove the legitimacy of this relationship;

(d)    has experienced domestic violence by Mr Venness which is a matter which she has proved but which was not properly taken into account.

36    At the hearing before me the appellant was assisted by an interpreter, but not legally represented. I now turn to consider each ground of appeal.

Consideration

Ground One – Not satisfied with the Court’s decision

37    This ground does not particularise the complaint or identify any error on the part of the learned primary judge. I t is nothing more than a bare statement by the appellant and it does not establish jurisdictional error. This ground must fail.

Grounds Two and Three – The appellant’s belief that she had true relations with her ex-husband

38    In my view these grounds seek that the Court engage in an impermissible merits review of the Tribunal’s decision. The jurisdiction of the Court in the present case is confined to circumstances where the Tribunal has committed jurisdictional error: s 476A of the Act; Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. It is well-established that it is not the function of a Court to engage in fact-finding so as to substitute its own view of the facts for the decision of the Tribunal: Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others (1986) 162 CLR 24 at 40-41; Attorney General (NSW) v Quin (1990) 170 CLR 1 at 36 per Brennan J.

39    The Tribunal decision reveals that the member assessed and weighed the evidence as to the nature of the relationship between the appellant and her sponsor and determined that it was not a spousal relationship within the definition of “spouse” in the Act. There was no error of law in the Tribunal’s approach and it is not for the Court to re-exercise the Tribunal’s fact-finding function.

Ground Four – Failure to consider domestic violence

40    As I have said, the criteria for the grant of the partner visa are set out in cl 820 of Schedule 2 to the Regulations. At the relevant time, cl 820.21 provided these criteria under the heading “Criteria to be satisfied at time of application”. Clause 820.211 provided:

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

(a)    the applicant is the spouse or de facto partner of a person who:

(i)    is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and ...

41    At the relevant time cl 820.221(3) of Schedule 2 to the Regulations provided:

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

(a)    the applicant would continue to meet the requirements of subclause 820.211(2), (5) or (6) except that the relationship between the applicant and the sponsoring partner has ceased; and

(b)    either or both of the following circumstances applies:

(i)    either or both of the following:

(A)    the applicant;

(B)    a dependent child of the sponsoring partner or of the applicant or of both of them;

has suffered family violence committed by the sponsoring partner;

…

(Emphasis added.)

42    Clause 820.221(3) refers back to cl 820.211 and indicates that it must be satisfied at the time that a visa application is lodged. Although cl 820.211(3) sets a requirement to continue to meet the requirements of 820.211(2), (5) or (6), in the present case only cl 820.211(2) is relevant.

43    As I have said, the Tribunal was not satisfied that the appellant and her sponsor were in a genuine spousal relationship at the time of the visa application. I consider that the Tribunal was not obliged to consider the issue of family violence: see Alsalem at [17]; Yang v Minister for Immigration and Border Protection and Another [2014] FCCA 20 at [28]–[36]; Guven v Minister for Immigration and Multicultural and Indigenous Affairs and Another [2006] FMCA 311 at [24]–[25]; Collins v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FMCA 571 at [42].

44    In the context of an application for a partner visa there is little utility in considering the issue of family violence unless a spousal relationship for the purposes of 820.211(2) is first established. As the Tribunal found that the appellant failed to establish the necessary relationship at the time of the visa application, there was no requirement for it to assess the issue of family violence.

45    This ground fails.

Procedural fairness

46    Although the Notice of Appeal made no claim that the Tribunal failed to accord the appellant procedural fairness, before me she submitted that the Tribunal failed to take into account that her inability to produce documentary evidence to prove the legitimacy of her relationship arose because she was forced to flee from an abusive relationship. This argument was not raised before the Tribunal or the Federal Circuit Court and was not pleaded. It cannot now be raised without leave. Nor did the appellant identify any particular documentary evidence which she might have adduced if she had access to her alleged former home. Counsel for the Minister contends, and I accept, that notwithstanding that the appellant had left her alleged home she could have produced relevant objective evidence of the relationship from other sources, for example bank statements and the like. No application was made for leave to introduce a ground of appeal that was not argued below, but in all the circumstances I would have refused if it had.

CONCLUSION

47    I can discern no error in the Tribunal’s decision or in the judgment of the Federal Circuit Court. I dismiss the appeal and I order the appellant pay the first respondent’s costs.

Associate:

Dated:    21 November 2014