Kaur v Minister for Immigration and Citizenship [2025] FCA 918

(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.

1. In the proceeding before the Tribunal, both Mr Singh and the appellant gave evidence that they had been separated since 23 May 2018, that they lived at different addresses and that reconciliation between them was not possible. Mr Singh told the Tribunal that a divorce application had been submitted. Documents before the Tribunal showed that the appellant and Mr Singh lived at separate addresses and that a final divorce application was to be heard in September 2019.
2. The Tribunal said that the definition in reg 1.12(2)(a) applied. It concluded that the appellant did not meet the Family Unit Criterion for reasons it expressed as follows:
   1. The substantial body of written and verbal evidence provided by Ms Kaur and Mr Singh leads the Tribunal to conclude that they are no longer in a genuine spousal relationship. They no longer have a mutual commitment to a shared life as a married couple, the relationship between them is no longer genuine or continuing and they now live separately and apart on a permanent basis. Both parties were persuasive and appeared to answer the Tribunal honestly and without obfuscation in spite of their displayed apparent emotional sadness.
   2. 'Spouse' is defined in s.5F of the Act and provides that a person is the spouse of another where the two persons are in a married relationship. Persons in a married relationship must be married to each other under a marriage that is valid for the purposes of the Act, there must be a mutual commitment to a shared life as husband and wife to the exclusion of all others, the relationship must be genuine and continuing, and the couple must live together, or not live separately and apart on a permanent basis: s.5F(2)(a)-(d). In forming an opinion about these matters, regard may be had to all of the circumstances of the relationship. This may include evidence of the financial and social aspects and the nature of the visa applicant's household and their commitment to each other as set out in r.1.15A(3). The Tribunal is satisfied that Mr Singh the primary applicant and Ms Kaur the secondary applicant are no longer in a spouse relationship as defined by s.5F of the Act.
   3. The Tribunal finds that as Ms Kaur and Mr Singh are no longer in a spousal relationship, she is no longer a member of Mr Singh's family unit as defined in r.1.12(1). As was declared by Ms Kaur on her Form 80, she had only held Student and Bridging visas up until the time of application. Therefore the definition of family unit in 1.12(12) does not apply. Accordingly Ms Kaur is not a member of the family unit of a 187 visa holder therefore does not meet cl.187.311.
3. The reasons of the primary judge will be considered in the course of disposing with the grounds of appeal. Those grounds are contained in a notice of appeal filed 11 January 2023. They raise three substantive issues.

1. The first issue is whether the primary judge erred in failing to find that the Tribunal committed jurisdictional error by misconstruing or misapplying the "spouse" definition, and specifically by failing to find that the Tribunal was bound to conclude that the appellant was the spouse of Mr Singh because their divorce had not been finalised at the time of its decision.
2. The primary judge summarised the findings of the Tribunal at some length. His Honour went on to say that the findings of the Tribunal were open to it on the facts and evidence before it, and that to disturb those conclusions would be to conduct an impermissible merits review (at [20]). His Honour continued (at [21]):

What follows from the Tribunal's unimpeachable factual conclusions are legal conclusions that are equally unimpeachable. Thus, even if - as was the case - Ms Kaur was still legally married to Mr Singh as at the time of the Tribunal Decision because no final divorce order had been made, in order to be considered Mr Singh's 'spouse' and therefore 'a member of the family unit' for the purposes of the REN Visa Application, Ms Kaur needed to have a relationship with Mr Singh to the exclusion of all others that was continuing and they needed to either live together or not live apart on a permanent basis. Having regard to the Tribunal's conclusions as set out at [19(e)] above, which were based on the undisputed evidence of Ms Kaur and Mr Singh that reconciliation was not possible, that they had lived apart since May 2018 and they had a pending final divorce application, Ms Kaur was plainly not Mr Singh's 'spouse' for the purposes of s 5F of the Migration Act, nor a 'member of the family unit' for the purposes of cl 187.311 of Sch 2 to the Migration Regulations, and was therefore, as the Tribunal concluded, not able to satisfy the criteria for the grant of the REN Visa. The Tribunal's conclusion in this respect was correct and not vitiated by jurisdictional error.

1. The appellant's oral submissions on the appeal went no further than to agitate the factual question as to whether she was separated from her husband at the time of the Tribunal's decision. The submissions did not engage with the reasons of the Tribunal nor with the reasons of the primary judge. There is no reasonable basis to conclude that the primary judge erred in finding that the Tribunal had neither misconstrued nor misapplied the spouse definition.

1. The second issue is whether the primary judge erred in failing to find that the Tribunal committed jurisdictional error by assessing the status of the relationship between the appellant and Mr Singh as at the date of its decision, rather than the date upon which their combined visa application was made.
2. That argument has no prospect of success, given the express requirement that the secondary criteria for the visa be fulfilled at the time of the decision on the visa application.

1. The third issue is whether the primary judge erred by failing to find that the Tribunal committed jurisdictional error because it had not complied with the requirement in s 359A of the Act. In the course of rejecting grounds for judicial review on the same topic, the primary judge said (at [24]):

These grounds cannot succeed because s 359A(4)(b) of the Migration Act excludes a requirement to give particulars of information where the information is information that an applicant gave to the Tribunal for the purposes of the application for review by the Tribunal. As is evident from [19(d)-(e)] above, the dispositive reasons in the Tribunal Decision are based on the evidence of Ms Kaur, as well as Mr Singh, their evidence being to the same effect in relation to matters giving rise to the Tribunal's dispositive reasons.

1. The Tribunal was under no obligation to draw the appellant's attention to the conclusions it might draw on the basis of evidence that she and her husband had given. As at first instance, the appellant did not demonstrate that the Tribunal relied upon adverse information that had not been drawn to the appellant's attention, and there is no appealable error on the part of the primary judge on that question.

1. On appeal, the Minister submitted that the appellant had not addressed the conclusion of the primary judge that remittal of the review application to the Tribunal would be futile.
2. His Honour said that the decision of the Tribunal was "so obviously unaffected by jurisdictional error" that it was unnecessary to consider whether it would be futile to grant relief in the event that jurisdictional error was shown. However, his Honour went on to conclude that on the material before him the divorce that had been pending at the time of the Tribunal's decision had now been finalised. The primary judge said that if the matter were to be remitted to the Tribunal, the only outcome available on the remittal would have been an affirmation of the delegate's decision. Accordingly, his Honour said, any relief by way of remittal would lack utility.
3. In my view, the question of the futility of remittal is one that is most appropriately made by way of a notice of alternative contention on an appeal so as to ensure that a litigant in the appellant's position is equipped to respond to it.
4. For the purposes of this appeal it is sufficient to conclude that the grounds of appeal are wholly without merit and I express no view as to whether the grant of any relief at first instance would have lacked utility.

1. For the purposes of Pt 8B of the Act, I conclude that the grounds of appeal relied upon by the appellant enjoyed no reasonable prospect of success. In accordance with s 486F(2) of the Act, the Court must consider whether there should be an order under s 486F(1).
2. The Court will invite submissions from the parties as to whether there is a basis for orders facilitating an inquiry into whether any person is in contravention of s 486E of the Act. In addition, the parties will be heard on the question of whether there is occasion to make an order for costs against a non-party under s 43 of the Federal Court of Australia Act 1976 (Cth).
3. The questions are raised on the Court's own motion, having regard to s 486F(3)(a) of the Act, together with the following circumstances:

(1) the notice of appeal contains a representation on the footer of the document to the effect that it was prepared by the appellant personally;

(2) however, the notice of appeal contains words and phrases that employ identical language to an amended notice of appeal filed in Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (SAD 174 of 2022);

(3) there are indications that the written submissions filed by the appellant in this proceeding and the written submissions filed by the appellant in Singh were prepared by the same person, including:

(a) the same erroneous reference to He v Minister for Immigration and Citizenship [2010] FCAFC 148;

(b) the same erroneous citation to WZARH v Minister for Immigration and Border Protection [2015] HCA 40; and

(c) similar formatting and phrases.

(4) the appellant in this proceeding told the Court that she had the assistance of a cousin in India for the preparation of her materials and otherwise did not address the Court in a way that demonstrated any knowledge of the legal arguments advanced on her behalf; and

(5) the appellant in Singh told the Court that he had the assistance of a person in India who was a lawyer, although not "officially".

1. The assertion at the footer of the notice of appeal that the appellant personally prepared the document need not be taken at face value and there is some material before the Court to suggest that it should not be: ARN17 v Minister for Immigration and Border Protection [2018] FCA 974 (at [43]).
2. A related question may arise as to whether any person has provided services to the appellant for fee or reward. As I explained in DAB16 v Minister for Home Affairs (No 2) [2021] FCA 120, a person's contravention of s 486E of the Act can lead to personal costs orders under s 486F, which may include a lawyer who has drafted grounds and arguments. Issues also arise as to whether any person (whether or not a lawyer) has contravened s 486E of the Act by encouraging the appellant to commence and continue the proceeding.
3. The Court proceeds of its own motion under Pt 8B of the Act, without limiting any application a party to the proceeding may otherwise make.
4. The parties should be heard in relation to all of those questions and to adduce evidence in relation them.

I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Charlesworth.