Federal Court of Australia

Singh v Minister for Immigration and Border Protection [2021] FCA 480

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs fixed in the amount of $4,000.00.

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

REASONS FOR JUDGMENT

BESANKO J:

1    This is an appeal from an order made by the Federal Circuit Court of Australia on 1 November 2019. On that day, the Federal Circuit Court made an order that the appellant’s application for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) filed on 20 July 2017 be dismissed (Singh v Minister for Home Affairs & Anor [2019] FCCA 3068).

2    The appellant is a national of India who was born in May 1981. On 29 May 2015, the appellant applied for a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act) on the basis of his relationship with his sponsor.

3    At the time of his application, Class UK contained only one subclass and that was subclass 820 (Partner). The criteria for the grant of this class of visa is set out in Pt 820 of Sch 2 to the Migration Regulations 1994 (Cth) (the Regulations). On 26 July 2016, a delegate of the Minister refused the appellant’s application on the basis that he did not satisfy cl 820.211(2)(a) because the delegate was not satisfied that the appellant was the de facto partner of the sponsor. Clause 820.211(2)(a) was in the following terms:

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

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

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

(ii)    is not prohibited by subclause (2B) from being a sponsoring partner;

4    The appellant applied to the Tribunal for a review of that decision. On 28 June 2017, the Tribunal decided to affirm the decision not to grant the appellant a Partner (Temporary) (Class UK) visa. The Tribunal found that the appellant did not satisfy cl 820.211(2)(a) (at the time of the application) or cl 820.221(1) (at the time of decision).

5    On 20 July 2017, the appellant issued an application for judicial review in the Federal Circuit Court. As I have said, that application was heard and dismissed by the Federal Circuit Court.

6    Section 5CB of the Act and reg 1.09A provide direction as to when a person is to be considered a de facto partner of another person. Section 5CB relevantly provides:

De facto partners

(1)    For the purposes of this Act, a person is the de facto partner of another person (whether of the same sex or a different sex) if, under subsection (2), the person is in a de facto relationship with the other person.

De facto relationship

(2)    For the purposes of subsection (1), a person is in a de facto relationship with another person if they are not in a married relationship (for the purposes of section 5F) with each other but:

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

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

  (c)    they:

(i)    live together; or

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

  (d)    they are not related by family (see subsection (4)).

(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.

7    Regulation 1.09A makes provision in relation to the determination of whether one or more of the conditions in paragraphs 2(a), (b), (c) and (d) in s 5CB exist. I will not set it out. It is sufficient to note that reg 1.09A(3) requires the decision-maker to consider matters such as the financial aspects of the relationship, the nature of the household, the social aspects of the relationship and the nature of the persons’ commitment to each other.

8    I have already set out cl 820.211 which deals with the criteria to be met by an applicant at the time of his or her application. Clause 820.221 provides for the criteria to be met at the time of decision and provides for an exception to the requirement of a continuing relationship where the applicant has suffered family violence committed by the sponsoring partner (cl 820.221(3)).

9    The primary judge identified the circumstances leading to the application for judicial review. He said that in general terms, prior to granting a temporary partner visa under the Act, a decision-maker must be satisfied in respect of considerations relating to the following criteria: (1) the financial aspect between the applicant concerned and his sponsor; (2) the nature of the household shared by the applicant and his sponsor; (3) the social aspects of the relationship between the two; and (4) the nature of the commitment between the two individuals concerned. The primary judge noted that the decision-maker must be satisfied as to these issues, both at the time of the application and at the time the decision is made. The Regulations address cases in which the applicant asserts that he or she has been the subject of family violence during the relevant relationship which has led to the termination of the relationship.

10    The primary judge noted that the appellant accepted an invitation from the Tribunal under s 360 of the Act to appear before it. He was not represented before the Tribunal. The primary judge said that he had not been provided with a transcript of the proceedings before the Tribunal.

11    The primary judge said that it was implicit in the decision of the Tribunal that the appellant had indicated to it that he was no longer in a relationship with Ms Duncan. The appellant conceded that that was the case. The primary judge repeated the Tribunal’s summary of the appellant’s evidence before it as follows:

The applicant at the Tribunal hearing informed the Tribunal he was no longer in a relationship with his sponsor. The applicant told the Tribunal that he entered into a committed relationship with the sponsor in March 2015. He said that he moved from his brother’s residence in Surry Downs, South Australia to live with the sponsor and her family in Claymore, New South Wales. The applicant said that he stayed at the sponsor’s residence for a period of two months before returning to live in South Australia. He told the Tribunal that he had made a bad decision, his life went to hell living with the sponsor at Claymore and that his health deteriorated during that time and the relationship ended.

The applicant told the Tribunal that he had no family in India and wanted to stay in Australia with his mother and brothers. He stated that he wanted to study and forge a career in the fitness industry and help people with obesity. He said that he was too old to be gainfully employed in India. The applicant told the Tribunal that he had a blood disorder and had to visit the Haematology Clinic at the Royal Adelaide Hospital every six months for treatment. He also stated that he had his medical condition before he entered into a de facto relationship with the sponsor. He also said that at present he was in reasonably good health. He requested that the Tribunal to grant him a visa on the abovementioned grounds. The Tribunal considered the issues raised by the applicant at the hearing in respect to the nature of his relationship with the sponsor.

12    The primary judge said that it was “hardly surprising” that the Tribunal concluded that there was no de facto relationship between the appellant and Ms Duncan and, therefore, the appellant was not entitled to be granted a temporary partner visa under the Act in circumstances where the appellant conceded that there was no longer any relationship between the two. He noted that, notwithstanding the lack of a relevant de facto relationship between the appellant and Ms Duncan at the time of the hearing, the Tribunal had nevertheless assessed the evidence provided to it regarding the nature of the relationship prior to its breakdown. The Tribunal noted significant credibility issues regarding the appellant and Ms Duncan’s evidence concerning the circumstances surrounding their first meeting and whether the appellant’s family did, in fact, support or oppose the relationship. The primary judge said that the Tribunal did not accept that the appellant and Ms Duncan had a mutual commitment to a shared life (see s 5CB(2)(a) of the Act). The primary judge noted that this conclusion was based on a finding that the two had spent little time together over the course of their relationship and there was a dearth of evidence that the two had been committed to providing companionship and emotional support for one another.

13    The primary judge made the observation that it was open to the Tribunal to consider the nature of the relationship between the parties at the time of the visa application given the import of cl 820.221(3) of the Regulations. That sub-regulation provides that a temporary partner visa may nonetheless be granted if an applicant is able to establish that there was previously a de facto relationship which satisfied the regulatory criteria, but that relationship ended as a consequence of exposure to family violence.

14    The primary judge noted that, in this context, the Tribunal had expressed the following conclusions:

Given these findings the Tribunal is not satisfied at the time the visa application was made and at the time of this decision the parties were in a de facto relationship. There is no information before the Tribunal that the applicant would satisfy any of the alternate criteria for the grant of the visa. There is no evidence, and the applicant does not claim, that he has suffered family violence, the sponsor is alive and there are no children and no responsibilities in relation to children.

15    The primary judge then identified the appellant’s “grounds of judicial review”. The grounds may be best described as a narrative of facts and they include a request that his case be reassessed “under family violence”.

16    The primary judge noted that the appellant’s principal submission was that the Tribunal had not considered relevant evidence in relation to the “significant amount of family violence” which had led to the breakdown of his relationship with Ms Duncan. The primary judge noted that that assertion was at odds with the Tribunal’s finding that the appellant did not claim that he had suffered domestic violence during the relevant relationship.

17    The primary judge noted that he had not been provided with a transcript of the proceedings before the Tribunal. Nor had the appellant, in connection with the invitation from the Tribunal under s 360 of the Act, taken the opportunity to provide “additional documentary evidence, such as a family violence order or medical report, supporting the contention that he has been subject to family violence”.

18    The primary judge said that, in those circumstances, he was not persuaded that the appellant was able to demonstrate that he had been the subject of any procedural unfairness or that he was unable to present his case. His Honour noted that the Tribunal was required to consider only the application made by the appellant and the arguments in support thereof clearly articulated by him. The primary judge concluded that there was no evidence to indicate that the appellant advanced any submissions regarding his exposure to family violence or that this was a topic which emerged from his submissions to the Tribunal. The Tribunal had addressed the correct question.

19    The primary judge said that, in any event, it was a necessary precursor before considerations of family violence could be considered that the Tribunal was persuaded that there was a de facto relationship which was terminated by family violence. The primary judge said that the factual findings by the Tribunal that there was no de facto relationship and that, in any event, the appellant had not raised issues of family violence, were factual findings reasonably open to the Tribunal and that it was not open to the Federal Circuit Court to substitute its own findings in relation to them. Nor was it open to the Federal Circuit Court to consider the appellant’s current claims regarding his exposure to family violence.

20    The appellant appeared in person before the Federal Circuit Court and he appears in person before this Court.

21    The appellant’s Notice of appeal from the Federal Circuit Court contains three grounds of appeal. They are as follows:

  1.    I am the Applicant and I am authorised to make this affidavit.

  2.    There is jurisdictional error in judgment.

3.    I had appealed decision of AAT to Federal Circuit Court. Federal Circuit Court did not upheld my application. I request you to look into it. AAT has made Jurisdictional error in decision.

The Notice of Appeal then contains a number of quotes from the decision of the Federal Circuit Court. First, the appellant sets out paragraph 13 of the reasons of the Federal Circuit Court. He then submits that he told the Tribunal that his wife mentally abused him due to his health issues and that he was the subject of family violence. The Tribunal failed to consider the fact that he had suffered family violence during his relationship. The Tribunal, in fact, stated that he had not claimed that he had suffered from family violence. The appellant submits that this is untrue and even the Tribunal acknowledged that he went through hell and that his health deteriorated during his relationship. The Tribunal failed to consider that this constituted family violence. He submits that he had explicitly explained a whole range of issues about family violence where his wife and her family mentally tortured him. The appellant submits that the Tribunal failed to consider his oral evidence of family violence and probably did not know the definition of family violence. He submits that mental harassment due to which his health deteriorated and he became depressed, constituted family violence. He submits that the Federal Circuit Court erred in not identifying jurisdictional error in the Tribunal’s decision. The appellant then sets out paragraphs 14 to 20 of the reasons of the Federal Circuit Court.

22    At the hearing of his appeal, the appellant acknowledged that he had not filed any written submissions and that he had received the first respondent’s outline of submissions. He made brief oral submissions. He said that what he wanted to say was similar to what he had said before. He said that he had been bullied and “put down” by Ms Duncan. He said that he wanted another chance and that he wanted to study and start a career. He did not identify any error in the reasons of the Federal Circuit Court.

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.

24    In the circumstances, the appeal must be dismissed. The appellant must pay the first respondent’s costs fixed in the amount of $4,000.00.

Associate:    

Dated:    7 May 2021