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[2010] FCAFC 24
appellant. Appeal allowed. The final supplementary orders set aside the Federal Magistrates Court orders, issued certiorari quashing the Tribunal's decision dated 9 February 2009, and issued mandamus...
3 cited instruments linked from this judgment.
The Court held that the partner-visa domestic violence provision did not say the violence had to happen before the relationship ended. Nor did it require the violence to be the reason the relationship ended. The Tribunal had accepted that the appellant experienced domestic violence and that the relationship had ceased, but rejected her case because the violence occurred later. The Full Court found that timing-based interpretation was wrong and ordered the Tribunal to reconsider the matter under the correct construction.
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This Full Court appeal concerned the domestic violence criterion for a subclass 100 partner visa under cl 100.221(4) of Sch 2 to the Migration Regulations 1994 (Cth). The narrow question was whether cl 100.221(4)(c) required the violence to have happened before the relationship between the applicant and her sponsoring spouse ceased. The Court held that it did not.
The appellant married her husband in India on 25 January 2005. The marriage had been arranged by their parents and was according to Hindu custom [6]. Her husband already had Australian permanent residence. She applied for a partner visa on 14 October 2005, with him as sponsor [10]. After the temporary spouse visa was granted, she arrived in Australia on 26 November 2006 and lived with her husband in Melbourne. Her evidence was that they shared accommodation and a sexual relationship, went shopping and watched cricket, and had a nice relationship during that period [10].
Unknown to the appellant, on 5 December 2006 her husband told the Department of Immigration that their relationship was “not continuing” or “was not continuing at the moment”. He also said he did not want her to come to Australia or support her there [11]. The appellant later returned to India with him. The account recorded by the Tribunal was that she believed they would resolve family interference, and she did not know he was unhappy with the marriage [12]. The husband then returned to Australia without her. Her family bought her a one-way ticket back to Australia [12–13].
On 15 February 2007, she went to her husband's residence, which she regarded as her home. He refused to let her in, verbally abused and pushed her, threw her belongings into the street, threatened to kill her if he saw her again, and threatened to destroy her remaining property [14]. She called police and obtained an interim intervention order. Her husband also signed an undertaking not to assault, harass, threaten or intimidate her [15].
The Tribunal accepted that the appellant had suffered domestic violence on 15 February 2007. It also found that the spousal relationship had ceased before the Tribunal made its decision [22]. Applying the definition of “spouse” in reg 1.15A, it considered that the husband was no longer committed to a shared life as husband and wife by at least 31 December 2006. It therefore treated the violence as occurring after the relationship ended [23]. Relying on Sok, it read cl 100.221(4)(c) as requiring violence during the relationship and affirmed the refusal of the visa [24–25].
The Federal Magistrates Court disagreed with the Tribunal's interpretation but dismissed the judicial review application because it considered itself constrained by Alin [27]. The Full Court allowed the appeal on 15 March 2010 [39]. The further supplementary orders ultimately set aside the Federal Magistrates Court orders, quashed the Tribunal's decision, and directed it to reconsider the matter according to law.
The Court approached the issue as one of statutory construction. The Tribunal and Minister relied on a construction under which domestic violence had to occur during the spousal relationship, or at least be a reason for its ending. The Court rejected both restrictions.
First, the text did not impose either limitation. The Court noted that the provision's express words did not say the violence had to occur during the relationship or cause its cessation [33]. It then considered the clause in context, applying the approach to statutory construction referred to in CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408 [36]. The Court found no relevant contextual or extrinsic material that supplied the proposed limitation [36].
Second, the Court considered the protective policy behind the provision. The earlier approach in Sok had identified the purpose as allowing a person to leave an abusive relationship without compromising immigration status [33]. The Full Court considered that account too narrow. In its view, the protection also applied to a person whose relationship had ended for another reason but who later experienced domestic violence and would otherwise be forced back into the relationship to preserve immigration status [34]. The policy therefore addressed both being forced to stay in an abusive relationship and being forced to return to one [34].
The Court's interpretation did not mean that any violence between people who were once spouses necessarily met the regulatory definition. It expressly recognised that violence occurring many years after a relationship ended might not qualify as “domestic violence” under the broader regulatory concept it described as a “non-judicially determined claim for domestic violence”. But it found that was not this case, because the Tribunal had made an unchallenged finding that the appellant had suffered domestic violence [35].
Third, the Court rejected the Minister's argument that the violence had to be a reason why the appellant no longer remained the sponsor's spouse [30, 32]. The clause did not require an inquiry into the cause of the relationship's cessation. The Court considered that such an inquiry would require the Minister or delegate to determine why a relationship ended, which it described as a matter for experts rather than Ministers or their delegates [37]. On the Court's construction, the necessary findings were simply that the relationship had ceased and that the applicant had suffered domestic violence committed by the sponsor [38].
Justice Moore agreed with the conclusion and generally with Siopis and Edmonds JJ's reasoning. He emphasised that, absent clear words limiting the violence to the period before cessation, cl 100.221(4)(c) covered any domestic violence perpetrated on the visa applicant. He also observed that it would be unsatisfactory if a perpetrator's prior declaration that the relationship had ended deprived the victim of the provision's protection [1].
Before this decision, the Tribunal had followed the approach in Sok, which read cl 100.221(4)(c) as requiring domestic violence to occur during the relationship [24, 28]. In Sok, Riley FM acknowledged that the words did not expressly require violence during the relationship, but inferred that limit from the identified policy of enabling a person to leave an abusive relationship without jeopardising immigration status [28, 33].
A separate Federal Court decision, Alin, had also been relied on. As quoted in the appeal reasons, Sundberg J observed that the relationship in that case ended before the alleged violence occurred [29]. The Federal Magistrate in the present case considered judicial comity required adherence to Alin, despite disagreeing with its interpretation [27].
The Full Court rejected the temporal restriction adopted in Sok and the interpretation relied on from Alin. Its central conclusion was that the relevant clause did not require violence to occur before relationship cessation [34–36]. The Court also made clear that the violence did not have to cause or contribute to that cessation [36–38]. Thus, the legally relevant sequence could be: the relationship ends, and the applicant later experiences qualifying domestic violence by the sponsoring spouse.
The decision did not dispense with the other elements of the visa criteria. The quoted cl 100.221(4) required, among other things, that the applicant first entered Australia as the holder of the specified subclass 309 visa, that the applicant would otherwise meet the relevant ordinary criteria except that the relationship had ceased, and that one of the listed circumstances applied [19]. The Court decided only the interpretive dispute about the domestic violence circumstance. It did not itself determine that the appellant satisfied every criterion for a subclass 100 visa. The orders required the Tribunal to reconsider and determine the matter according to law.
At [34], the Court said the policy covered both “not to force a person to stay in an abusive relationship” and “not to force a person to go back into an abusive relationship”. In plain English, the protection was not confined to a person whose violence caused the initial breakup. It could also matter where a relationship had ended first, but later violence meant returning to the sponsor could compromise the applicant's immigration position.
At [35], the Court cautioned that violence between former spouses might not always satisfy the relevant regulatory concept. It gave the example of violence occurring many years after the relationship had ended. In plain English, the decision removes a categorical timing rule, but it does not establish that every later incident automatically counts as domestic violence under the Regulations. The facts still have to meet the applicable definition. In this appeal, the Tribunal's finding that domestic violence had occurred was not challenged.
At [36], the Court found no basis in the legislation's text, context or relevant extrinsic material for requiring the violence to cause, or be a reason for, the relationship's end. In plain English, the visa criterion did not require the applicant to prove that the violence broke up the marriage.
At [37], the Court explained that the Minister's interpretation would require decision-makers to identify the cause of the relationship's cessation. In plain English, the Court considered that adding a causal requirement would create a factual task the clause did not call for.
At [38], the Court set out the relevant findings as cessation of the relationship and domestic violence by the sponsoring spouse. In plain English, those matters did not have to be linked by a particular sequence or causal explanation.
Justice Moore's concurrence at [1] makes a related point: if the perpetrator could end the victim's access to the protection simply by declaring the relationship over before committing violence, that would be an unsatisfactory reading of the provision.
The precedent is directly relevant where a decision-maker accepts that the applicant suffered domestic violence committed by the sponsoring spouse and that the spousal relationship ceased, but rejects the domestic violence criterion solely because the violence occurred after cessation. The Court held that this timing alone does not defeat the criterion [34–38].
It is also relevant where the decision-maker treats the violence as insufficient because it did not cause or contribute to the relationship ending. The Court rejected that causal requirement [36–38]. The reasons identify a protective purpose that includes preventing both forced continuation of an abusive relationship and forced return to one [34].
The decision has limits. It concerns the construction of cl 100.221(4)(c) in the regulatory version applicable to this application. The judgment notes that amendments effective from 15 October 2007 applied only to applications made on or after that date, while the appellant applied in 2005 [16–18]. The reasoning should therefore be read with attention to the relevant version of the Regulations in any later matter. The Court did not decide how every later amendment should be construed.
Nor does the decision say that any violence by a former spouse meets the regulatory definition. The Court expressly observed that a long interval after the relationship ended could mean an incident did not qualify as domestic violence under the relevant broader concept [35]. It decided the interpretive question on the basis that the Tribunal had already found domestic violence in this appellant's case.
The judgment itself provides no account of decisions after 2010 and does not cite later judicial treatment. On the supplied judgment alone, it is not possible to describe how subsequent courts have applied, limited or distinguished the decision. The precedent relationships that can be identified from this judgment are those it discusses: it applies CIC Insurance's contextual approach to statutory construction [36], and rejects the temporal construction adopted in Sok and relied on from Alin [27, 33–36].
The judgment also refers to Ibrahim when describing the provision as serving a “humanitarian” purpose [34]. Shaikh and Meroka appear in the Minister's submissions or in the account of earlier reasoning [29, 31]. The Full Court's central reasoning does not set out a separate analysis of those decisions. Any assessment of later treatment, or of the current statutory position, would require materials beyond this judgment.
The judgment resolves the disputed temporal and causal requirements for the version of cl 100.221(4) before the Court. It does not determine whether the appellant ultimately met every visa criterion. That was left for the Tribunal to reconsider under the correct legal construction.
The judgment also leaves open how the regulatory definition of “domestic violence” applies to particular conduct, especially where the parties have been separated for a substantial period. At [35], the Court recognised that the passage of time and circumstances may affect whether later conduct qualifies. It did not draw a general boundary or specify a maximum period.
A further question is how the reasoning applies to later versions of the Regulations. The reasons record that amendments effective from 15 October 2007 applied only to applications made on or after that date [18]. This case concerned an application made in October 2005. The judgment does not analyse the effect of later amendments on the clause's language or operation.
Finally, the Court's statement at [38] identifies the necessary findings relevant to the issue before it, but it should not be read as a complete checklist for all subclass 100 applications. The other criteria set out in cl 100.221(4), including the visa-status requirement in para (a), remained part of the regulatory framework [19]. The Tribunal was directed to reconsider the matter according to law, not directed to grant the visa.
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THE COURT ORDERS (IN ADDITION TO ORDER 1 OF 15 MARCH 2010) THAT:
1 The orders of 24 March 2010 be vacated. 2 The orders of the Federal Magistrates Court made on 5 August 2009 be set aside and, in lieu thereof: (1) A writ in the nature of certiorari be issued to quash the decision of the Second Respondent, MRT reference 071933300 dated 9 February 2009. (2) A writ in the nature of mandamus be issued directing the Second Respondent to reconsider and determine the matter according to law. (3) The First Respondent pay the costs of the Applicant before the Federal Magistrates Court as taxed or agreed. 3 Order 2 be renumbered order 3.
I certify that the preceding three (3) numbered paragraphs are a true copy of the Further Supplementary Judgment herein of the Honourable Justices Moore, Siopis and Edmonds.
Associate: Dated: 12 April 2010 IN THE FEDERAL COURT OF AUSTRALIA
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
THE COURT ORDERS (IN ADDITION TO ORDER 1 OF 15 MARCH 2010) THAT:
1 The orders of 15 May 2010 be varied by: (a) adding the words "in the court below and on the appeal" at the conclusion of order 2. (b) Order 2 be renumbered order 3. (c) making a further order as order 2 namely "Order 2 made 5 August 2009 in the Federal Magistrates Court be set aside." I certify that the preceding one (1) numbered paragraph is a true copy of the Supplementary Judgment herein of the Honourable Justices Moore, Siopis and Edmonds.
Associate: Dated: 24 March 2010 IN THE FEDERAL COURT OF AUSTRALIA
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
REASONS FOR JUDGMENT MOORE J: 1 I have had the benefit of reading the judgment of Siopis and Edmonds JJ in a draft form. Save for their Honours' observations in [37], I agree with their conclusion and generally with their reasoning. I agree that in the absence of clear language identifying the relevant domestic violence as only violence occurring before the spousal relationship ceased, cl 100.221(4)(c) should be construed as comprehending any domestic violence perpetrated on the visa applicant. A prior declaration by the perpetrator of the violence that the relationship had ended would be an unsatisfactory basis for depriving the victim of the violence of the protection the provision was plainly intended to afford. As their Honours point out, the link created in the provision between the spousal relationship and the violence is that the latter must be "domestic violence". 2 I agree with the orders their Honours propose. I certify that the preceding two (2) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
Introduction 3 This is an appeal from the Federal Magistrates Court (Smith FM) dismissing an application for review of a decision of the Migration Review Tribunal ('the Tribunal') which had dismissed an application to review a decision made by a delegate of the first respondent ('the Minister') to refuse the appellant a Partner (Migrant) (Class BC) (subclass 100) visa under s 65 of the Migration Act 1958 (Cth) ('the Act'). 4 The issue presented by the appeal concerns the proper construction of cl 100.221(4)(c) of Sch 2 of the Migration Regulations 1994 (Cth) ('the Regulations'), namely, whether it is to be read as requiring the 'domestic violence' to which it refers, to have occurred before the relationship between the applicant and the sponsoring spouse ceased, the cessation of that relationship being the immediately preceding requirement in cl 100.221(4)(b).
Background Facts 5 The facts established before the Tribunal and accepted in the court below are not in dispute. 6 The appellant married her husband, Himanshu Pravinchandra Muliyana, in India on 25 January 2005. The marriage had been arranged by their parents and was according to Hindu custom. 7 The husband had previously acquired permanent residence in Australia. Following the marriage he returned to his employment in Melbourne in February 2005. 8 While waiting for permission to join him, the appellant completed her studies and started work as a teacher. But her parents-in-law required her to give up her employment, which she did in November 2005, and to reside with them, which she did for a period from February 2006. 9 Her parents-in-law were very controlling, dictating whom she saw and what she did. They were critical of her and thought that her performance, e.g. her cooking, was not up to their standards. They caused problems between her and her husband by reporting about her to him in Melbourne. Her husband however encouraged her to apply for a visa so they could have a fresh start in Australia. 10 The appellant applied for a Partner (Migrant) (Class BC) visa on 14 October 2005, with her husband as sponsoring spouse. The decision to grant her a temporary spouse visa was made on 23 September 2006. She entered Australia on 26 November 2006 and was reunited with her husband. They shared accommodation in Melbourne, had a sexual relationship, went shopping and watched cricket. The appellant's evidence was that they had a nice relationship during this time. 11 Unknown to the appellant, however, on 5 December 2006, within days after her arrival in Australia, her husband informed the Department of Immigration that their relationship 'was not continuing' or 'was not continuing at the moment' and that he neither wanted her to come to Australia nor to support her in Australia. 12 On 31 December 2006, the appellant travelled with her husband on a visit to India. In relation to the period 31 December 2006 to 5 February 2007, the Tribunal recorded the appellant's evidence as follows: 'About one week prior to departing Australia on 31 December 2006, the sponsor had suggested to the applicant that they return home to sort out the family interference. By family interference, the applicant means that they wanted to sort out the sponsor's family's dissatisfaction regarding whether the applicant was fulfilling their expectations ... When they arrived in India the sponsor took the applicant to her parent's home. They had dinner together and the sponsor stayed the night. The next morning, the sponsor's brother came and took the sponsor to his parent's home. The applicant and the sponsor spoke on the phone a few times and the sponsor told the applicant that they would meet soon once he had made arrangements for the families to communicate. They spoke until Thursday but on Friday, when the applicant phoned the sponsor, she could not locate him. She then rang the sponsor's grandfather who told her that the sponsor had returned to Australia ... The applicant had no idea at this time that the sponsor was unhappy with the marriage.' 13 The appellant tried unsuccessfully a number of times to contact her husband. She was regarded in Indian culture as her husband's responsibility. Her parents did not want to take responsibility for her and were concerned that if she continued to live with them that would have a negative effect on the prospects of her sisters marrying. They told her to leave their home and either live apart from them or return to her husband. They bought a one-way ticket for her to Australia. 14 The appellant arrived in Australia in February 2007. On 15 February 2007, she went to her husband's residence in Melbourne, which she regarded as her home. Her husband refused to let her in, verbally abused her, and shoved and pushed her out of the house. He said he did not want her back and did not care what happened to her, threw her belongings into the street, and threatened to kill her if he saw her again. He also threatened to destroy property of hers still in the house. 15 The appellant called the police and subsequently obtained an interim intervention order against her husband under the Magistrates Court Crimes (Family Violence) Act 1987 (Vic). The husband then signed an undertaking not to assault, harass, threaten or intimidate the appellant, co-signed by the appellant.
The Relevant Criteria 16 On 14 October 2005, when the appellant's application was made (see [10]) above), the criteria relevant to this appeal in subclass 100 of Sch 2 of the Regulations for grant of a Partner (Migrant) (Class BC) (subclass 100) visa were as set out in [19] below. 17 Relevant to the appellant's circumstances is cl 100.221(4) and the part of that of primary relevance to this appeal is subcl (4)(c). 18 Minor amendments to those criteria were made with effect from 15 October 2007 by the Migration Amendment Regulations (No 13) 2007 (Cth) but by operation of cl 3 thereof those amendments applied only to an application for a visa made on or after 15 October 2007. 19 The criteria relevant to this appeal in subclass 100 of Sch 2 of the Regulations are as follows: 'Subclass 100 Spouse … 100.22Criteria to be satisfied at time of decision 100.221 (1) The applicant meets the requirements of subclause (2), (2A), (3), (4) or (4A). (2) The applicant meets the requirements of this subclause if: (a) the applicant: (i) is the holder of a Subclass 309 (Spouse (Provisional)) visa; or (ii) was the holder of a Subclass 309 (Spouse (Provisional)) visa granted before 1 November 1999 that has ceased to be in effect because the applicant: (A) was outside Australia at the end of the 30 month period specified in the Subclass 309 visa for travelling to and entering Australia; or (B) left Australia after the end of the 30 month period specified in that visa for travelling to and entering Australia; and (b) the applicant is the spouse of the sponsoring spouse; and (c) subject to subclauses (5), (6) and (7), at least 2 years have passed since the application was made. (2A) The applicant meets the requirements of this subclause if: (a) the applicant is the holder of a Subclass 309 (Spouse (Provisional)) visa which the Minister has decided, under section 345, 351, 391, 417, 454 or 501J of the Act, to grant to the applicant; and (b) the applicant is the spouse of the sponsoring spouse; and (c) subject to subclauses (5), (6) and (7), at least 2 years have passed since the Minister made the decision mentioned in paragraph (a). (3) The applicant meets the requirements of this subclause if the applicant: (a) first entered Australia as the holder of a Subclass 309 (Spouse (Provisional)) visa and either: (i) continues to be the holder of that visa; or (ii) is no longer the holder of that visa because the visa: (A) was granted before 1 November 1999; and (B) has ceased to be in effect because the applicant: (I) was outside Australia at the end of the 30 month period specified in the Subclass 309 visa for travelling to and entering Australia; or (II) left Australia after the end of the 30 month period specified in that visa for travelling to and entering Australia; and (b) would meet the requirements of subclause (2) or (2A) except that, after the applicant first entered Australia as the holder of the visa mentioned in paragraph (a), the sponsoring spouse has died; and (c) satisfies the Minister that the applicant would have continued to be the spouse of the sponsoring spouse if the sponsoring spouse had not died. (4) The applicant meets the requirements of this subclause if: (a) the applicant first entered Australia as the holder of a Subclass 309 (Spouse (Provisional)) visa and either: (i) continues to be the holder of that visa; or (ii) is no longer the holder of that visa because the visa: (A) was granted before 1 November 1999; and (B) has ceased to be in effect because the applicant: (I) was outside Australia at the end of the 30 month period specified in the Subclass 309 visa for travelling to and entering Australia; or (II) left Australia after the end of the 30 month period specified in that visa for travelling to and entering Australia; and (b) the applicant would meet the requirements of subclause (2) or (2A) except that the relationship between the applicant and the sponsoring spouse has ceased; and (c) after the applicant first entered Australia as the holder of the visa mentioned in paragraph (a) - either or both of the following circumstances applies: (i) either or both of the following: (A) the applicant; (B) a member of the family unit of the sponsoring spouse or of the applicant or of both of them; has suffered domestic violence committed by the sponsoring spouse; (ii) the applicant: (A) has custody or joint custody of, or access to; or (B) has a residence order or contact order made under the Family Law Act 1975 relating to; at least 1 child in respect of whom the sponsoring spouse: (C) has been granted joint custody or access by a court; or (D) has a residence order or contact order made under the Family Law Act 1975; or (E) has an obligation under a child maintenance order made under the Family Law Act 1975, or any other formal maintenance obligation. Note For special provisions relating to domestic violence, see Division 1.5. (4A) The applicant meets the requirements of this subclause: (a) if the applicant held a Subclass 309 (Spouse (Provisional)) visa that ceased on notification of a decision of the Minister to refuse a Subclass 100 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 100 visa apart from the criterion that the applicant hold a Subclass 309 visa; or (ii) has determined that the applicant satisfies the criteria for the grant of a Subclass 100 visa apart from the criterion that the applicant hold a Subclass 309 visa. (5) Paragraphs (2) (c) and (2A) (c) do not apply to an applicant who at the time of making the application was in a long-term spouse relationship with the sponsoring spouse. (6) Paragraphs (2) (c) and (2A) (c) do not apply to an applicant whose sponsoring spouse: (a) is, or was, the holder of a permanent humanitarian visa; and (b) before that permanent visa was granted, was in a spouse relationship with the applicant of which Immigration was informed before that permanent visa was granted. (7) Nothing in paragraphs (2) (c) and (2A) (c) prevents the Minister, less than 2 years after the application is made, from: (a) refusing to grant a Subclass 100 visa; or (b) granting a Subclass 100 visa to an applicant who meets the requirements of subclause (3) or (4).' (Emphasis added)
The Delegate's Decision 20 On 8 November 2007, a delegate of the Minister refused to grant the appellant a Partner (Migrant) (Class BC) visa under s 65 of the Act because the delegate was not satisfied that the appellant was the spouse of the sponsor.
The Tribunal's Decision 21 The appellant applied to the Tribunal on 11 December 2007 for review of the delegate's decision. 22 The Tribunal was satisfied that the evidence established, in terms of cl 100.221(4)(c) (i)(A) and reg 1.23 (which, with other regulations in Div 1.5, give meaning to references to 'domestic violence' in the Regulations), that the appellant had suffered domestic violence at the hands of her husband on 15 February 2007. It was also satisfied, in terms of cl 100.221(4)(b) that the appellant's spousal relationship had previously existed but had ceased before the time of its decision. 23 The Tribunal also accepted that the appellant genuinely did not believe that her relationship with her husband was over until 15 February 2007. However, applying the definition of 'spouse' in reg 1.15A of the Regulations, in particular that the persons have a mutual commitment to a shared life as husband and wife to the exclusion of all others, the Tribunal decided that the husband was no longer committed to a spousal relationship with the appellant from at least 31 December 2006 and that the spousal relationship had therefore ceased from at least that date. It followed that the domestic violence had occurred after cessation of the relationship. 24 At [51], the Tribunal held: 'While the express words of cl.100.221(4)(c) do not state that the domestic violence needed to have caused or contributed to the cessation of the spousal relationship, the Tribunal is of the view that it is appropriate to read that clause as requiring the domestic violence to have occurred during the currency of the relationship: Sok v MIAC [2007] FMCA 1525 (Riley FM, 7 September 2007) at [37]-[39].' 25 For that reason, the Tribunal found that the appellant did not meet the criteria for grant of a Partner (Migrant) (Class BC) visa and affirmed the decision under review.
The Judgment Below 26 The appellant applied to the Federal Magistrates Court on 9 March 2009 for judicial review of the Tribunal's decision. 27 The learned Federal Magistrate disagreed with the Tribunal's interpretation of cl 100.221(4)(c) and gave detailed reasons for his contrary view, which the appellant embraced by way of submission on the hearing of the appeal. His Honour said that if he had been free to apply his own opinion, he would have held that, on the correct construction of the Regulations, and upon the findings of fact made by the Tribunal, the appellant satisfied the criteria in cl 100.221(4) of Sch 2 (at [29]). Although not disposed to follow Sok v Minister for Immigration & Citizenship [2007] FMCA 1525 (the decision of Riley FM on which the Tribunal had relied), he came to the view that even if he was not bound by what Sundberg J said in Alin v Minister for Immigration & Multicultural Affairs [2002] FCA 979 at [14], namely, that a reason for dismissing the application in that case was because '… the parties' relationship came to an end before the alleged violence occurred', judicial comity required him to follow it. Consequently, his Honour dismissed the appellant's application.
The Minister's Submissions on Appeal 28 In his submissions on the hearing of the appeal, the Minister sought to support the conclusion of the Tribunal that because the domestic violence perpetrated by the sponsoring spouse against the appellant did not occur during the currency of their spousal relationship, the requirement of cl 100.221(4)(c) for the grant of the visa was not satisfied. In this respect, great reliance was placed upon what was said by Riley FM in Sok at [37] - [39]: '37. The express words of clause 100.221(4)(c) of Schedule 2 of the Regulations simply require, relevantly, that after the applicant first entered Australia, he suffered domestic violence committed by his sponsor. The provision does not state that the domestic violence needed to have occurred during the currency of the spousal relationship or that the domestic violence needed to have caused or contributed to the cessation of the spousal relationship. 38. However, there is an obvious policy behind the provisions which permit a person in circumstances of domestic violence to obtain a permanent partner visa notwithstanding that the relationship with the partner has come to an end. That policy is to enable such a person to leave an abusive relationship without compromising his or her immigration status. 39. In the circumstances, I accept the submissions of the first respondent on this point. I consider that it is appropriate to read clause 100.221(4)(c) as requiring the domestic violence to have occurred during the currency of the relationship. Accordingly, I consider that the author of the second opinion did not misunderstand the relevant provisions and her opinion was therefore not an irrelevant consideration.' 29 Reliance was also placed on what Sundberg J said in Alin at [14]: 'There is a further reason why the spouse visa criteria could not be met by the applicant. As Ryan J said in Meroka v Minister for Immigration and Multicultural Affairs [(2002) 117 FCR 251] … at par 38, the evident purpose of sub-clauses 801.221(5) and (6) is to deal with persons who are the holders of Subclass 820 visas and whose relationship has come to an end through the death of the sponsoring spouse or as a result of domestic violence for which the sponsoring spouse was responsible. Here the parties' relationship came to an end before the alleged violence occurred. See the definition of "spouse" in reg 1.15A(1A). The Tribunal found, in accordance with information provided by the sponsor, that the relationship came to an end on 1 September 2000. The alleged violence did not occur until 16 September 2000.' 30 The Minister submitted: 'There is nothing in the altered language (comparing clause 801.221 as it was before Sundberg J with clause 100.221 before the Tribunal in the present case) which may be seen as over-riding what Sundberg J found to be the relevant purpose. The provisions are aimed at providing an exception to the requirement that the visa applicant be, at the time of the decision, in a spousal relationship with the sponsor (as defined in regulation 1.15A(1A)), in the case where the spousal relationship has come to an end following domestic violence for which the sponsoring spouse was responsible. It will not apply where the said relationship has already come to an end before any domestic violence has occurred.' And again: 'Here, paragraphs (b) and (c)(i) of sub-clause 100.221(4) are cumulative components of an exception to sub-clauses 100.221(2) or (2A) and that context informs their construction. They fulfil a purpose of generally requiring there to be a spousal relationship, continuing at the time of the decision, between the applicant and the sponsor, but allowing an exception where that spousal relationship has come to an end following / by reason of domestic violence committed by the person who was the sponsor.' 31 Reliance was also placed on other authority as supporting the approach taken by Sundberg J in Alin and by Ryan J in Meroka. Reference was made to passages from the reasons in Shaikh v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 174 at [17] per Heerey, Marshall and Weinberg JJ, and Ibrahim v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1279 at [40] per Wilcox J. Those passages, it was submitted, envisage spousal relationship breaking down after and, probably, as a result of domestic violence. 32 Ultimately, the Minister submitted that, for cl 100.221(4) to be satisfied, the commission by the sponsoring spouse of domestic violence against the applicant (or a member of the family unit as described) must be a reason why the applicant does not remain the spouse of the sponsoring spouse. According to the Minister, this does not involve words being read into the explanatory memorandum to the Migration Regulations (Amendment) 1996 (Cth), but rather it involves the clause (and what is written in the explanatory memorandum) being understood in the correct way.
Reasoning 33 In Sok, Riley FM observed that the express words of cl 100.221(c) of Sch 2 of the Regulations do not state that the domestic violence needed to have occurred during the currency of the spousal relationship or that the domestic violence needed to have caused or contributed to the cessation of the spousal relationship. Her Honour nevertheless identified an 'obvious policy' behind the provisions to enable a person in circumstances of domestic violence to leave an abusive relationship without compromising his or her immigration status. Her Honour concluded that the policy so identified required the domestic violence to have occurred during the currency of the relationship. 34 However, in our view, her Honour's identification of an 'obvious policy' behind the provisions to enable a person in circumstances of domestic violence to leave an abusive relationship without compromising his or her immigration status, is too narrowly stated. There is no warrant, in terms of policy, for treating such a 'humanitarian ground', to adopt the phrase used by Wilcox J in Ibrahim at [40], as inapplicable to a person who has suffered domestic violence after the spousal relationship has ceased for whatever reason (whether temporarily or not) who does not wish to return to that relationship but in taking this position, would not be compromising her (or less frequently, his) immigration status. In short, the policy is intended to cover both situations: not to force a person to stay in an abusive relationship; and not to force a person to go back into an abusive relationship, in either case without compromising his or her immigration status. If that is the correct identification of the policy, then it matters not whether the domestic violence occurred before or after the cessation of the spousal relationship; just that domestic violence occurred and the spousal relationship has ceased; and that may well explain why there is no temporal limitation in the text of cl 100.221(4)(c) confining it to the former situation. 35 No doubt there will be cases where the violence occurs between former spouses in circumstances, for example, many years after the relationship has ended, such that it would not qualify as 'domestic violence' within the broader concept of a 'non-judicially determined claim for domestic violence'. But that is not this case where the Tribunal made an unchallenged finding that the appellant had suffered domestic violence. 36 Absent the confined policy identified by her Honour, there is nothing in the text of the legislation viewed in its context: CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408, and nothing in any referrable relevant extrinsic material, which would suggest that the domestic violence had to be the cause or a reason for the cessation of the spousal relationship and, for that reason, had to have occurred prior to the cessation of the spousal relationship. Indeed, acceptance of the broader policy identified in [34] above, inevitably leads to the conclusion that it matters not when the violence occurred, before or after cessation of the spousal relationship, provided it was 'domestic violence' as defined. 37 There are other reasons why we think our construction is to be preferred over that submitted on behalf of the Minister. Chief amongst them is that the Minister, on his own submission, would be involved in ascertaining and determining the cause or reason for a cessation in the spousal relationship. That is a matter for experts, not Ministers of the Crown or their delegates. But that is what would be involved, in many cases, if the fact-finding exercise requires one to fix the time of the cessation of the spousal relationship; and such time fixing would be necessary if the domestic violence must occur before that time for the requirement of cl 100.221(4)(c) to be satisfied. 38 No such fact-finding would be involved on the part of the Minister if the construction which we embrace is adopted. All that would be necessary would be findings that: (4) The spousal relationship has ceased: cl 100.221(4)(b); and (5) the visa applicant has suffered domestic violence committed by the sponsoring spouse: cl 100.221(4)(c).
Conclusion 39 For these reasons, we are of the view that the appeal should be allowed with costs. I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Siopis and Edmonds.
Muliyana
Minister for Immigration & Citizenship
[2009] FMCA 691
[2007] FMCA 1525
(1997) 187 CLR 384
(2002) 117 FCR 251
Appeal allowed. The final supplementary orders set aside the Federal Magistrates Court orders, issued certiorari quashing the Tribunal's decision dated 9 February 2009, and issued mandamus directing the Tribunal to reconsider and determine the matter according to law. The Minister was ordered to pay the appellant's costs before the Federal Magistrates Court as taxed or agreed. The 15 March 2010 order also provided for the Minister to pay the appellant's appeal costs.