Muliyana v Minister for Immigration & Citizenship

Federal Court of Australia (Full Court)|2010-03-15|Before: Edmonds JJ

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

The appeal be allowed.
The first respondent pay the appellant's costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court's website. IN THE FEDERAL 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.

Magistrates Court Crimes (Family Violence) Act 1987(Vic)

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