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.