Federal Court of Australia

Gupta v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1494

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant must pay the first respondent’s costs as agreed or taxed.

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

REASONS FOR JUDGMENT

FARRELL J:

Introduction

1    By a notice of appeal filed in this Court on 12 November 2019, the appellant, Mukesh Gupta, appeals from a decision of a Judge of the Federal Circuit Court of Australia (FCCA) made on 29 October 2019. The notice of appeal states (as written):

Grounds of appeal

His Honour the Federal Circuit Court Judge dismissed the case on 29th October 2019 but the reasons for the judgement is yet to [be] received.

Particulars

The court affirmed the findings of the Tribunal however I am yet to [be] provided the reasons for the judgment, hence I am unable to write a detailed grounds of appeal at this stage.

2    The FCCA Judge’s written reasons for the decision made on 29 October 2019 were published on 25 November 2019: see Gupta v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCCA 3088. By an email sent to Mr Gupta on 26 November 2019, Joshua Dadgar, a solicitor employed by HWL Ebsworth, the firm representing the first respondent (Minister), provided a copy of the written reasons to Mr Gupta.

3    This appeal was allocated to my docket in June 2021. Following a case management hearing on 9 July 2021, I made orders granting leave to Mr Gupta to file an amended notice of appeal by 20 August 2021 and timetabling orders for a hearing of the appeal initially listed for 15 October 2021. The leave given to Mr Gupta was subsequently extended to 25 August 2021. No amended notice of appeal was filed.

4    The appeal was heard on 19 November 2021. Mr Gupta appeared in person and the Minister was represented by Mr Dadgar. The Minister filed written submissions and Mr Dadgar’s affidavit dated 18 November 2021. That affidavit replaced an affidavit sworn by a former partner of HWL Ebsworth in August 2021. That partner has since been appointed as a Judge of the Federal Circuit and Family Court of Australia (as the FCCA is now known). Mr Gupta did not file submissions but I had regard to written submissions which he provided to a Registrar of this Court on 7 May 2020 in connection with an application that the appeal not be heard before August or September of 2020 (see [15] below) and his oral submissions.

Background

5    On 29 April 2014, Mr Gupta applied for a temporary and permanent partner visa on the basis of his relationship with his sponsor whom he married in Sydney on 2 February 2014. On 18 November 2016, the Administrative Appeals Tribunal affirmed a decision of a delegate of the Minister to refuse Mr Gupta a Partner (Residence) (Class BS) visa under s 65 of the Migration Act 1958 (Cth).

Tribunal’s decision record

6    In its decision record (or DR) at [5]-[11], the Tribunal referred to Mr Gupta as “the applicant” and relevantly summarised his evidence as follows:

5.    The applicant confirmed he and the sponsor were no longer in a relationship. …

6.    The applicant came to Australia and after two months, found a job and began earning money. He said the sponsor wanted him to give his earnings to her but he believed they should build up the relationship first. It was claimed the applicant became upset about the money issue. The applicant stated he and the sponsor moved to a residence where they were paying a high rent which the applicant thought was too expensive but the sponsor wanted because her sister was coming to Australia.

7.    The applicant told the Tribunal that the money problems continued because the sponsor continued to demand his wages and would not tell him what she used the money for. He said the sponsor’s family supported her and threatened to withdraw sponsorship of his visa if he did not comply and the sponsor also threatened him. The applicant claimed he had intended to apply for permanent residency in Italy after living outside of India for seven years but the sponsor convinced him to give that up and come to Australia.

8.    The applicant claimed that because the sponsor’s family were staying, from June 2014 they both slept in separate rooms. He claimed the sponsor then told the estate agent they were moving without informing him and then informed him the relationship was over. The applicant claimed he tried to convince the sponsor not to end the marriage but her motivation was money.

9.    The applicant claimed there had been family violence during the relationship as the sponsor threatened to withdraw her sponsorship and shouted at him all the time. He said the violence was not physical but verbal and he had been advised by his lawyer to call the police. He said if he had recorded the history of the sponsor's behaviour he could show it. He reiterated that he and the sponsor argued all the time and as a result, he was mentally upset and did not sleep for a whole month.

10.    The applicant sought time after the hearing in order to make further submissions about family violence.

11.    On 6 October and 1 November 2016 the applicant provided the following documents:

•    Letter from social worker, Charlotte Leung dated 13 August 2015;

•    Letter from social worker, Charlotte Leung dated 18 October 2016;

•    Letter from GP Dr Deepal Gunasekera (undated)

•    Mental health treatment plan in the name of the applicant dated 30 June 2015.

7    I note that the Appeal Book contains a copy of an email which Mr Gupta sent to the Tribunal on 23 August 2016 in which he made the claims that he had been mentally harassed by his sponsor and her family, that he had suffered family violence and his sponsor withdrew her sponsorship only after he refused to give her money. It also contains copies of the documents referred to at DR[11]. It does not contain a copy of the transcript of the Tribunal hearing held on 8 September 2016.

8    In summary, the Tribunal found that:

(a)    Although they were validly married, Mr Gupta and his sponsor lived separately and apart on a permanent basis at the time the Tribunal made its decision. Accordingly, Mr Gupta did not meet the requirements of cl 801.221 of the Migration Regulations 1994 (Cth). I take this to be a reference to cl 801.221(1); and

(b)    It was not satisfied that Mr Gupta met an alternative criterion under cl 801.221(6)(c) of the Migration Regulations, that criterion being that he had suffered a “non-judicially determined claim of family violence” committed by his sponsor during their relationship.

9    In relation to the issue of whether Mr Gupta’s evidence amounted to a “non-judicially determined claim of family violence”, the Tribunal said:

19.    Under r. 1.23 of the Regulations, a person is taken to have suffered or committed family violence if there is evidence tested before a court; or the visa application includes a non-judicially determined claim of family violence, and either the Minister (or the Tribunal on review) is satisfied that the alleged victim has suffered relevant family violence or an opinion of an independent expert has been given that the alleged victim has suffered relevant family violence. Relevant family violence is defined in r. 1.21. The Tribunal notes that the violence, or part of the violence must have occurred during the relationship: r. 1.23(3), (5), (7), (12), (14).

Has a claim of family violence been made under the regulations?

20.    Under r. 1.23, a visa application is taken to include a non-judicially determined claim of family violence where either a joint undertaking to a court has been made by the alleged victim and alleged perpetrator or evidence in accordance with r. 1.24 is provided.

21.    The applicant in this case provided letters from a social worker, a letter from a GP and a mental health treatment plan. These documents do not establish a claim of family violence under the Migration Regulations. In addition, the Tribunal notes the reports do not disclose family violence but focus on the visa applicant’s mental health following his marriage that, according to the evidence, was characterised by conflict between the parties.

22.    Given these findings the Tribunal is not satisfied that at the time of this decision the parties are in a spousal relationship or that the applicant meets any of the alternative criteria in cl. 801.221 (2A), (3), (4), (5) or (6). Therefore the applicant does not meet cl.801.221.

Migration Regulations

10    Clause 801.22 of Sch 2 of the Migration Regulations relevantly provides as follows:

801.22—Criteria to be satisfied at time of decision

801.221

(1)    The applicant meets the requirements of subclause (2), (2A), (3), (4), (5), (6) or (8).

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

(a)    The applicant is the holder of a Subclass 820 visa; and

(b)    the applicant continues to be sponsored for the grant of the Subclass 820 (Partner) visa by:

(i)    the sponsoring partner; or

(ii)    the Australian citizen, Australian permanent resident or eligible New Zealand citizen who sponsored the applicant for that visa; and

(c)    the applicant is the spouse or de facto partner of the sponsoring partner; and

(d)    subject to subclauses (6A) and (7), at least 2 years have passed since the application was made.

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

(a)    the applicant is the holder of a Subclass 820 (Partner) 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 (6A) and (7), at least 2 years have passed since the Minister made the decision mentioned in paragraph (a).

(3)    An applicant meets the requirements of this subclause if the applicant is the holder of a Subclass 820 visa granted on the basis that the applicant met the requirements of subclause 820.221(2).

(4)    An applicant meets the requirements of this subclause if the applicant is the holder of a Subclass 820 visa granted on the basis that the applicant met the requirements of subclause 820.221(3).

…

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

(a)    the applicant is the holder of a Subclass 820 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)    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;

(ii)    … ; or

(6A)    Paragraphs (2)(d) 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.

(7)    Nothing in paragraphs (2)(d) and (2A)(c) prevents the Minister, less than 2 years after the application is made:

(a)    refusing to grant a Subclass 801 visa; or

(d)    approving the grant of a Subclass 801 visa to an applicant who meets the requirements of subclause (5) or (6).

(8)    The applicant meets the requirements of this subclause:

(a)    if the applicant held a Subclass 820 (Partner) visa that ceased on notification of a decision of the Minister to refuse a Subclass 801 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 801 visa apart from the criterion that the applicant hold a Subclass 820 visa; or

(ii)    has determined that the applicant satisfies the criteria for the grant of a Subclass 801 visa apart from the criterion that the applicant hold a Subclass 820 visa.

11    Division 1.5 of the Migration Regulations relevantly provides as follows:

Division 1.5—Special provisions relating to family violence

1.21    Interpretation

In this Division:

independent expert means a person who:

(a)    is suitably qualified to make independent assessments of non-judicially determined claims of family violence; and

(b)    is employed by, or contracted to provide services to, an organisation that is specified, in a legislative instrument made by the Minister, for the purpose of making independent assessments of non-judicially determined claims of family violence.

non-judicially determined claim of family violence has the meaning given by subregulations 1.23(8) and (9).

relevant family violence means conduct, whether actual or threatened, towards:

(a)    the alleged victim; or

(b)    a member of the family unit of the alleged victim; or

(c)    a member of the family unit of the alleged perpetrator; or

(d)    the property of the alleged victim; or

(e)    the property of a member of the family unit of the alleged victim; or

(f)    the property of a member of the family unit of the alleged perpetrator;

that causes the alleged victim to reasonably fear for, or to be reasonably apprehensive about, his or her own wellbeing or safety.

statutory declaration means a statutory declaration under the Statutory Declarations Act 1959.

violence includes a threat of violence.

1.22 References to person having suffered or committed family violence

(1)    A reference in these Regulations to a person having suffered family violence is a reference to a person being taken, under regulation 1.23, to have suffered family violence.

(2)    A reference in these Regulations to a person having committed family violence in relation to a person is a reference to a person being taken, under regulation 1.23, to have committed family violence in relation to that person.

1.23 When is a person taken to have suffered or committed family violence?

(1)    For these Regulations, this regulation explains when:

(a)    a person (the alleged victim) is taken to have suffered family violence; and

(b)    another person (the alleged perpetrator) is taken to have committed family violence in relation to the alleged victim.

Note:    Schedule 2 sets out which visas may be granted on the basis of a person having suffered family violence. The criteria to be satisfied for the visa to be granted set out which persons may be taken to have suffered family violence, and how those persons are related to the spouse or de facto partner of the alleged perpetrator mentioned in this regulation.

…

Circumstances in which family violence is suffered and committed—non-judicially determined claim of family violence

(8)    For these Regulations, an application for a visa is taken to include a non-judicially determined claim of family violence if:

(a)    the applicant seeks to satisfy a prescribed criterion that the applicant, or another person mentioned in the criterion, has suffered family violence; and

(b)    the alleged victim and the alleged perpetrator have made a joint undertaking to a court in relation to proceedings in which an allegation is before the court that the alleged perpetrator has committed an act of violence against the alleged victim.

(9)    For these Regulations, an application for a visa is taken to include a non-judicially determined claim of family violence if:

(a)    the applicant seeks to satisfy a prescribed criterion that the applicant, or another person mentioned in the criterion, has suffered family violence; and

(b)    the alleged victim is:

(i)    a spouse or de facto partner of the alleged perpetrator; or

(ii)    … ; or

(iii)    … ; and

(c)    the alleged victim or another person on the alleged victim’s behalf has presented evidence in accordance with regulation 1.24 that:

(i)    the alleged victim has suffered relevant family violence; and

(ii)    the alleged perpetrator committed that relevant family violence.

(10)    If an application for a visa includes a non-judicially determined claim of family violence:

(a)    the Minister must consider whether the alleged victim has suffered relevant family violence; and

(b)    if the Minister is satisfied that the alleged victim has suffered the relevant family violence, the Minister must consider the application on that basis; and

(c)    if the Minister is not satisfied that the alleged victim has suffered the relevant family violence:

(i)    the Minister must seek the opinion of an independent expert about whether the alleged victim has suffered the relevant family violence; and

(ii)    the Minister must take an independent expert’s opinion on the matter to be correct for the purposes of deciding whether the alleged victim satisfies a prescribed criterion for a visa that requires the applicant for the visa, or another person mentioned in the criterion, to have suffered family violence.

(11)    The alleged victim is taken to have suffered family violence, and the alleged perpetrator is taken to have committed family violence, if:

(a)    an application for a visa includes a non-judicially determined claim of family violence; and

(b)    the Minister is satisfied under paragraph (10)(b) that the alleged victim has suffered relevant family violence.

(12)    For subregulation (11), the Minister must be satisfied that the relevant family violence, or part of the relevant family violence, occurred while the married relationship or de facto relationship existed between the alleged perpetrator and the spouse or de facto partner of the alleged perpetrator.

…

1.24 Evidence

The evidence mentioned in paragraph 1.23(9)(c) is:

(a)    a statutory declaration under regulation 1.25 (which deals with statutory declarations by or on behalf of alleged victims); and

(b)    the type and number of items of evidence specified by the Minister by instrument in writing for this paragraph.

1.25 Statutory declaration by alleged victim etc

(1)    A statutory declaration under this regulation must be made by the spouse or de facto partner of the alleged perpetrator.

(2)    A statutory declaration under this regulation that is made by a person mentioned in subregulation 1.25(1) who alleges that he or she is the victim of relevant family violence (within the meaning of regulation 1.21) must:

(a)    set out the allegation; and

(b)    name the person alleged to have committed the relevant family violence; and

(c)    if the conduct of the person alleged to have committed the relevant family violence was not towards the alleged victim:

(i)    name the person whom the conduct of the alleged perpetrator was towards; and

(ii)    identify the relationship between the maker of the statutory declaration and the person whom the conduct was towards.

(3)    ….

Proceedings in the FCCA

12    On 7 December 2016, Mr Gupta filed an application for judicial review of the Tribunal’s decision by the FCCA. The sole ground of review was:

The Tribunal erred in law as it failed to consider the applicability of cl 820.221(3) to the facts of the case and evidence adduced

Particulars

The applicant in his evidence had clearly stated that he is undergoing family violence. He also stated that the sponsor mentally harassed him by constantly scolding and abusing him. Threatening to withdraw the sponsorship and seeking that all money be provided to her. This clearly portrays a situation of family violence. Without further questioning the self-represented applicant more about the family violence related issues, the Tribunal brushes aside the evidence on record proving family violence. The Tribunal simply states that the evidence on record is insufficient in relation to cl 820.221. The applicant claims non judicially determined family violence for which purpose he had given three certificates (i) Two forms by social worker (ii) the other from the treating Doctor. Instead of considering these materials and discussing them the Tribunal simply states that there is insufficient evidence regarding the family violence.

13    As noted above, on 29 October 2019: the FCCA Judge heard Mr Gupta’s application for judicial review of the Tribunal’s decision. Mr Gupta appeared in person. The Minister was represented by Mr Dadgar. The FCCA Judge made orders dismissing the application and delivered reasons ex tempore. On 26 November 2019, Mr Dadgar sent a copy of the written reasons to Mr Gupta.

14    In the written reasons, the FCCA Judge summarised the Tribunal’s decision record (at J[4]-[12]) and made the following findings at J[18]-[23]:

18.    In order for an application to be taken to include a non-judicially determined claim of family violence, the alleged victim or other person on his or her behalf must present certain evidence in accordance with r 1.24 of the Regulations. This evidence must include a statutory declaration under r 1.25 of the Regulations and evidence of the type and number of items specified by the Minister by the instrument for the purpose of r 1.24 of the Regulations, being IMMI12/116.

19.    It is apparent that the applicant did not, even though given an opportunity to do so, provide a statutory declaration meeting the requirements of r 1.25 of the Regulations which means that the requirements of r 1.24(a) of the Regulations were not satisfied.

20.    The Tribunal referred to the documents that the applicant provided which did not meet the requirements of the Regulations. In these circumstances, the Tribunal was correct in holding that there was no non-judicially determined claim of family violence pursuant to r 1.23(9) of the Regulations. The Tribunal’s adverse finding that there was no such claim in accordance with the Regulations was correct.

21.    It is also apparent that the Tribunal expressly referred to the requirements of r 1.23 of the Regulations, the requirement for the evidence to support a claim of non-judicially determined family violence and to r 1.24 of the Regulations.

22.    The applicant’s disagreement with the Tribunal’s adverse finding identified in ground 1 does not identify any relevant error by the Tribunal. The Tribunal’s determination that there was no claim advanced by the applicant meeting the requirements of the Regulations so as to be a claim of non-judicially determined family violence was correct. Accordingly, no jurisdiction error as identified in ground 1 is made out.

23.    As the application fails to make out any jurisdictional error, the application is dismissed.

15    Although neither Mr Gupta nor Mr Dadgar drew the Court’s attention to it, Mr Dadgar’s affidavit included evidence that, on 7 May 2020, Mr Gupta sent an email to a Registrar of this Court seeking that the appeal be set down in August or September 2020 and providing written submissions (which were not filed) as follows:

Appellant outline of submissions

1)    When the appeal was filed the Federal Circuit Court did not publish the detailed reasons for the judgement. The detail judgement was published much after the lapse of the appeal period. Hence I was deprived of raising my grounds of appeal correctly. This view is supported by the judgement AAM17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1951.

2)    The applicant on oath has deposed before the Tribunal matters relating to domestic violence on several occasions during his examination under oath. The deposition on oath is very similar to statutory declaration, in fact it may be of much higher quality as the veracity of the statement/evidence is tested in cross examination. It is submitted that the nomenclature (statutory declaration/statement on oath) is not important, it is the substance ((evidence on oath before Tribunal) that is important. This being the case the observation of learned Federal Circuit Court judge in para 18 & 19 that the appellant failed to provide the statutory declaration hence he is not able to meet the criteria of “non Judicially determined domestic violence” as per r l.24 of the Migration regulations, with respect, it is submitted as erroneous.

3)    The Tribunal never gave notice to the appellant as to what are the matter of concern that may cause the Tribunal to affirm the decision under review. It is a mandatory requirement that the Tribunal should indicate as per Sec 359AA or 359A as to what is the reason in whole or in part which would constitute as a ground for affirming the decision under review so that the applicant can provide some pertinent answers.

4)    The learned Federal Court Judge erred in upholding the Tribunal decision as it failed to consider all the evidence on record.

Conclusion

It i submitted that the decision of the Tribunal and Learned Federal Circuit Court Judge in upholding such decision is fraught with Jurisdictional error and requires to be remitted for redetermination

16    At the hearing of the appeal, Mr Gupta submitted that:

(a)    He lost all of his employment in the period since Sydney was first locked down due to the COVID-19 epidemic so he was unable to afford legal assistance and that is why no amended notice of appeal was filed. When pressed, he agreed that he had been employed up until mid-March 2020 but said that his now wife was pregnant at the time and he had been too busy to arrange legal assistance.

(b)    He made a mistake in failing to record conversations with his sponsor and her family in which he was pressured to pay over his wages to them, but he gave that evidence to the Tribunal and that should have been sufficient.

Disposition

17    As Mr Dadgar correctly submitted, Mr Gupta’s ground of appeal reveals no error by the FCCA Judge.

18    I also do not consider Mr Gupta’s explanation for failure to file an amended notice of appeal in a timely way adequate. I note that Mr Dadgar sent Mr Gupta a copy of the written reasons on 26 November 2019, 28 days after the FCCA Judge dismissed his application for judicial review. While that was the last day on which he could have filed a notice of appeal under r 36.03 of the Federal Court Rules 2011 (Cth), Mr Gupta could have, without leave of the Court, filed an amended notice of appeal within 28 days after he filed his notice of appeal on 12 November 2019: see r 36.10 of the Federal Court Rules. I do not consider his explanation for the failure to file an amended notice of appeal to be adequate. I note that he did not seek advice or leave to file an amended notice of appeal at any time before the COVID-19 lockdown commenced in Sydney in mid-March 2020, being a time at which he was fully employed.

19    Having said that, Mr Gupta is a litigant in person. I will address his other written and oral submissions:

(a)    The decision in AAM17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1951 on which Mr Gupta relied has been overruled: see the High Court’s decision in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AAM17 [2021] HCA 6; (2021) 95 ALJR 292. In this case, Mr Gupta had adequate opportunity to file an amended notice of appeal for the reasons given previously.

(b)    Mr Gupta’s contention that the evidence which he gave to the Tribunal should have been sufficient because it was given on oath and was subject to cross-examination cannot be accepted. The evidence required to make a “non-judicially determined claim of family violence” for the purposes of r 1.23(9)(c) of the Migration Regulations is specified under rr 1.24 and 1.25 of the Migration Regulations. As recognised by the FCCA Judge, Mr Gupta did not provide the statutory declaration required by rr 1.24(a) and 1.25 even though the Tribunal gave him an opportunity to do so following the hearing on 8 September 2016 and he in fact filed documents after that date. Further, the Tribunal correctly found that the evidence provided by the social worker and Mr Gupta’s general practitioner (including the mental health plan) for the purposes of satisfying r 1.24(b) did not disclose family violence; the evidence related to his mental health conditions following marital breakdown and visa concerns. It might also be observed that the Tribunal’s procedure is not adversarial and he was not subject to cross-examination.

(c)    The argument that the Tribunal was obliged to inform Mr Gupta that a failure to establish a “non-judicially determined claim of family violence” in the manner required by rr 1.24 and 1.25 of the Migration Regulations might be a reason to affirm the delegate’s decision was not raised by Mr Gupta before the primary judge. While latitude is often accorded to litigants in person in allowing such arguments to be raised for the first time on appeal, I am not satisfied that that the argument has sufficient merit to warrant the grant of such leave. I accept Mr Dadgar’s submission that the Tribunal did not have any obligation to provide such advice under ss 359AA or 359A of the Migration Act; it was for Mr Gupta to establish his claims in accordance with law. Further, as the transcript of the Tribunal hearing is not in evidence and the Tribunal gave Mr Gupta further opportunity to provide evidence following the hearing, there is no evidence that the Tribunal did not explain to Mr Gupta that he had failed to comply with rr 1.24 and 1.25 of the Migration Regulations and the implications of such a failure.

(d)    The fourth matter raised in the submissions was that the “learned Federal Court Judge erred in upholding the Tribunal’s decision as it failed to consider all the evidence on record”. The submission did not identify what evidence the Tribunal had overlooked and it may well be that this was offered only as a summation of the other matters raised. In any event, it does not disclose a reason to find that the FCCA Judge erred or that the Tribunal committed a jurisdictional error.

20    Accordingly, I will dismiss the appeal with costs.

Associate:

Dated:    29 November 2021