Ground 1
62 In respect of this ground, the applicant places significant reliance on the case of Deng. The applicant submits that it does not follow that just because it is open to the Tribunal to find that a person was a family member that the Tribunal could simply assume that to be the case, rather the issue has to be considered explicitly (see Deng at [128]).
63 In Deng, the Full Court found that the Tribunal had committed jurisdictional error by acting on a misunderstanding of the law in finding, without express consideration, that because the victim of the appellant's offending was the appellant's "intimate partner", it followed that she was a member of his family for the purpose of the definition of family violence in para 4(1) of Direction 90: at [126].
64 The applicant submits that "Deng is materially indistinguishable from the present case", as in both cases ss 5CB or 5G (and in this case s 5F) of the Act were not referred to in the Tribunal's reasons (see Deng at [123]), it was assumed (without consideration) that the victims of family violence were members of the applicants' families and the family violence was viewed very seriously in the weighing exercise for the decision.
65 The applicant contends that the Tribunal was required to determine whether the applicant's former husband was a member of her family at the time of the offending so as to constitute family violence and that as they were no longer partners, there was no intention to resume their relationship, and therefore he could not be a member of the applicant's family for the purpose of the definition of family violence in Direction 90. The Minister conceded that the issue of whether the applicant's former partner was a member of her family was not expressly addressed by the Tribunal.
66 The applicant further contended that the Tribunal was obliged under s 499(2A) of the Act to comply with Direction 90, paras 5.1(2), 5.1(3), 5.2, 5.2(5), 6, 8.1.1(1)(a)(iii) and 8.1.2(2), which required consideration of certain factors by using the word "must". Paragraph 8.1.1(1)(a)(iii) provided that the Tribunal "must have regard to… family violence". It follows that the Tribunal was necessarily obliged to consider the question of who constituted a "family member" even if the parties did not put that question in issue before the Tribunal.
67 On the applicant's submission, the applicant's case is stronger than the appellant's case was in Deng because the appellant did not put in issue before the Tribunal the question of family violence. In this regard, the Full Court stated that the question of who is a family member was a "contestable", not a "contested" issue: at T[126].
68 The Minister submitted, first, that the Full Court's decision in Deng was incorrectly decided (albeit conceding that the Court is bound by this authority) and, second, that it was otherwise reasonably open to the Tribunal to take the view it did as to the scope of family violence and who a family member is.
69 For the following reasons, I do not accept the applicant's submission. First, in order to construe what "family member" means in Direction 90, it is necessary to construe that phrase within the entirety of Direction 90. One needs to construe the scope of "member of the person's family" by ascertaining the purpose of the paragraph. What appears clear when one construes both examples of the behaviour which fall within the definition of "family violence", together with where "family violence" is otherwise considered in Direction 90, is that the intention of the paragraph is to include forms of violence within a family that have an impact upon, and/or are witnessed by, children.
70 Examples of "behaviour" that may constitute family violence which are extracted at [30] above, include, at (h), unreasonably withholding financial support, and (i), preventing the family member from making or keeping connections with his or her family. Whilst not determinative, the definition would appear to contain indications, by reason of these behaviours, that it includes conduct arising after the dissolution of a relationship. Whilst of course such behaviour may occur within a marriage, it is my view that when contrasted with the following provisions, the intent of the provision is clear and wards against a narrow construction.
71 This is clear, for example, when one considers para 8.2, namely Primary Consideration 2 (family violence committed by the non-citizen), and in particular, what is required by the decision-maker to consider, when determining "the seriousness of the family violence engaged in by the non-citizen", which is extracted as follows:
(3) In considering the seriousness of the family violence engaged in by the non-citizen, the following factors must be considered where relevant:
a) the frequency of the non-citizen's conduct and/or whether there is any trend of increasing seriousness;
b) the cumulative effect of repeated acts of family violence;
c) rehabilitation achieved at time of decision since the person's last known act of family violence, including:
i. the extent to which the person accepts responsibility for their family violence related conduct;
ii. the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
iii. efforts to address factors which contributed to their conduct; and
d) Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen's favour. This includes warnings about the non-citizen's migration status, should the non-citizen engage in further acts of family violence.
(Emphasis added.)
72 The decision-maker must take into account the "cumulative effect of repeated acts of family violence": para 8.2(3)(b). Furthermore, consideration must be given to the rehabilitation achieved at the time of the decision since the person's last known act of family violence, including "the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children)" (emphasis added).
73 At para 8.3, when dealing with Primary Consideration 3 (the best interests of minor children), part of the consideration of the best interests of the minor child, identified at para 8.3(4)(g), includes evidence "that the child has been or is at the risk of being subjected to or exposed to family violence perpetrated by the non-citizen" (emphasis added).
74 Both of these considerations concern the nature of the violence as it occurs between family members, or where a child witnesses or is exposed to that violence. This is consistent with what appears to be the apparent purpose of the provision - To protect children from exposure to violence. Necessarily, unfortunately, much of the acrimony that exists within families occurs within the context of family breakdown. For the definition to be construed in the narrow way for which the applicant contends means that it could not achieve one of the objectives of Direction 90. If this were so, it would produce absurd results. For example, the conduct of a man who had murdered his former spouse would not be covered by this description of "family violence", and nor would the conduct of a woman who violently abused the former spouse of her children in front of her children. This cannot be how one interprets it.
75 Curiously, Direction 90 adopts the definition of "family violence" from s 4AB of the Family Law Act 1975 (Cth). The effect of s 4(1AB) of the Family Law Act is to define a member of the family to include, inter alia, at s 4(1AB)(d) "the first person is, or has been married to, or in a de facto relationship with, the second person" (emphasis added). It also includes persons who are the subject of parenting orders or custody or guardianship rights. It further includes at s 4(1AB)(i), "the first person is or has been a member of the family of a child with the second person". I accept the submissions of both parties that despite the partial adoption of the definition of "family violence" in the Family Law Act, the absence of the adoption of s 4(1AB) means it is of limited utility.
76 The applicant relies on Deng at [123], where the Full Court found that ss 5CB and 5G of the Act are of "[s]ome assistance" in construing the phrase "a member of a person's family". Given the applicant and her former partner were married, the Minister conceded that s 5F was also relevant in this regard, as the applicant had submitted. Paragraph [123] of Deng was as follows:
Paragraph 4(1) of Direction 90 contains a definition of "family violence" that refers to a "member of the person's family". But the Direction does not contain any definition of this expression or of the word "family". Some assistance is provided by ss 5CB and 5G of the Migration Act, but these sections do not contain an exhaustive definition of a member of a person's family. The expression "member of the person's family", as used in the definition of "family violence" in paragraph 4(1) of Direction 90, is to be construed having regard to its text, context and purpose. The context includes paragraph 8.2 of the Direction and ss 5CB and 5G of the Migration Act.
77 I accept the Minister's submission that while the Full Court in Deng placed some importance on the definitions provided in these provisions, their Honours did not suggest that those definitions governed the operation of Direction 90. It is clear from considering those provisions that the purpose of those definitions in the Act are different to the purpose of the definition of "family violence" in Direction 90.
78 The applicant submitted that, in addition to ss 5CB, 5F (in this case) and 5G (extracted above at [32]), regs 1.12 and 1.23 of the Migration Regulations 1994 (Cth) also informed the definition of "family violence" in Direction 90. Regulation 1.23 of the Regulations sets out acts constituting family violence and provides that the violence must have occurred while the married or de facto relationship existed between the alleged perpetrator and alleged victim: regs 1.23(3), (5), (7), (12) and (14). The applicant submits these regulations are informative, albeit not determinative. The applicant conceded that the Regulations were not mentioned by the Full Court in Deng as a result of there not being a timing issue in that case since the "intimate partner" was the appellant's current rather than former partner.
79 I do not accept that reg 1.23 informs the definition of "family member" such that it is confined to current spouses or de facto partners. As the applicant helpfully submitted at hearing, reg 1.23 relates to "partner visas" as described in Sch 2 of the Regulations. At a broad level, an essential criterion for the grant of a partner visa is that the visa applicant and the sponsor are in a continuing relationship: see e.g. cl 820.211(2)(a) of Sch 2 of the Regulations; s 5F(2)(c) (spouse) or s 5CB(2)(b) (de facto partner) of the Act. However, an exception exists where, assuming all other criteria are satisfied, the partner visa can be granted in circumstances where the applicant "has suffered family violence committed by the sponsoring partner": see e.g. cl 820.221(3)(b)(i) of Sch 2 of the Regulations. The apparent purpose of this exception is to avoid a visa applicant being pressured to remain in a relationship, where they were suffering family violence at the hands of their sponsoring partner, in order to get the benefit of a visa.
80 Further, the applicant relied on reg 1.12(2) of the Regulations which defines a "member of the family unit" and does not include a former partner, but does include "spouse" or "de facto partner" (as defined in ss 5CB and 5F of the Act). However, the applicant conceded at hearing that reg 1.12 relates to whether someone is a "member of the family unit" for the purpose of being included in the primary person's visa application. The applicant submitted that the Tribunal should have considered these different provisions and discussed why its approach led to inconsistency. I reject this submission. There was no such need for the Tribunal to do so. It is clear that the limitation in the Regulations regarding partner visas that a visa applicant be a "current" spouse or de facto partner conforms with the purpose of that part of the Regulations and cannot be interpreted such that the purpose of Direction 90 is read down.
81 The applicant further submitted that if a current "intimate partner" could not be assumed to be a member of the person's family (without express consideration) as occurred in Deng, then "it is difficult to see how we would be allowed to assume that a former partner would be a family member". However, the applicant conceded at hearing that a distinction can be made of the fact that the applicant and JA were formerly married, and intimate partners. The relationship was recognised at law and obligations arose from the legal relationship.
82 Secondly, I do not accept that the Full Court authority in Deng is of assistance to the applicant. It is clear that in the case of Deng, the Full Court endorsed the statement of the primary judge that the expression "member of a person's family" in Direction 90 should not be narrowly construed: see Deng at [124]. The primary judge in Deng had stated that the term "should not be limited to close relatives and de facto partners of the non-citizen": Deng at [91].
83 Further, the circumstances in Deng were materially different. There, the issue was whether a former "intimate partner" (who was the appellant's "current" partner at the time of the purported family violence) comprised a "family member". The Full Court observed correctly that such a person "may" fall within the definition, but it was a "contestable issue" that needed consideration (at [126]). Here, it was not a "contestable issue" as to whether the applicant had been in a marital relationship with JA. For the reasons identified above, I am of the view that a former spouse necessarily falls within the definition of "family member".
84 In Deng at [125], it was open to the Tribunal to treat the violence against the appellant's sister as family violence without further consideration. It is not always necessary for the Tribunal to engage in a detailed consideration of whether the victim of violence was a member of the applicant's family. The same was conceded by the applicant at hearing.
85 In addition, here the Tribunal expressly stated that it was satisfied that the conduct amounted to an "act of family violence as defined in the Direction" (at T[76]) and referred to the definition at T[77] (whereas the failure by the Tribunal to do so in Deng was significant).
86 Whilst the applicant concedes that the Tribunal extracted part of the definition of "family violence" at T[77] (see above at [49]), the applicant submits that this was insufficient to demonstrate that the Tribunal considered whether the applicant's former husband was a member of her family. I do not accept this submission.
87 I accept the submission of the Minister that the Tribunal's lack of detailed analysis as to whether the applicant's former husband was a member of her family cannot give rise to an inference that the question was not considered in this case.
88 This is particularly so where the issue was not raised before the Tribunal, as is clear from the extracted representations and submissions at [40]-[42] above. I do not accept the applicant's submission that the applicant had "impliedly submitted" or it was "subsumed in the parties' submissions on family violence" that JA was not part of her family by not including JA in the list of family members in her request for revocation form or her submissions to the delegate. The applicant seeks to support this contention by reference to a description of persons who are members of her family in the context of her description of her "Links to the Australian Community". It cannot be accepted that by the applicant not referring to her former spouse in this unrelated context that it was "impliedly submitted" that the applicant intended, for the purpose of a different consideration under Direction 90 that JA did not fall within the definition of "family violence". Similarly, the applicant cannot rely on a portion of the Request for revocation form and Personal circumstances form dated 17 February 2021 which does not include reference to her former spouse. That form specifically asks for details of "living parents, step-parents, brothers, sisters, and adult children", "other close family members including in-laws, cousins, grandparents, uncles/aunts". Further, nothing can be made of the fact that the form, in this part, does not ask for details of an applicant's relationship status and details of a spouse or partner. Parts 5 and 6 of that form require those details.
89 Further, I do not accept that the Minister himself did "separately" put that in issue. The Minister's submission, extracted at [43] above, cannot be characterised in this way: The Minister's submission is responsive and refers to the consequences of the applicant's behaviour leading to the conclusion that her conduct constituted family violence, rather than any question as to whether JA or KT were "family members". I do not understand the applicant to have ever conceded that her conduct met the definition of "family violence" for the purposes of Direction 90. Nowhere in the applicant's representations, submissions or evidence did the applicant frame the issue by reference to whether or not her former husband was a family member.
90 As recognised by the High Court, "the decision-maker is not required to consider claims that are not clearly articulated [in representations] or which do not clearly arise on the materials before them": Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; 400 ALR 417 at [25].
91 The applicant submits that Plaintiff M1 is not relevant to the present case as it raises different issues. Further, the applicant contends that the plurality's observation that "the decision-maker must have regard to what is said in the representations" (at [24]) does not suggest that a decision-maker should consider only what is contained in those representations but must look at the materials before it, "even if they are not the subject of clear articulation by a review applicant": CKT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 124 at [104].
92 The applicant misunderstands the relevance of Plaintiff M1. As submitted by the respondent, the issue in this application as articulated by the applicant is the extent of consideration required (and whether an inference can be drawn that the issue was not considered). The extent of the required consideration will depend on how, if at all, the issue was articulated by the parties.
93 Unlike the inherent ambiguity of the term "intimate partner" which arose in Deng, a former spouse is more plainly a "family member". I accept the Minister's submission that the former spousal relationship was of sufficient seriousness, longevity, and involved the rearing of children such that the position of JA is much closer to the position of the sister in Deng at [125] than the intimate partner in Deng such that they would be considered a family member without more express consideration.
94 Furthermore, contrary to the applicant's submission, the Tribunal did consider "family violence" (at T[79]). It makes a finding that it is satisfied that the applicant's violence towards the former husband (in the form of threatening text messages) was "family violence". Further, the Tribunal went on to consider whether other breaches of DVOs by the applicant constituted "family violence" and determined that they were not "family violence" according to that definition (at T[103]-[105]) and gave very little weight to them (at T[106]).
95 The applicant was granted leave, after the hearing, to make further submissions in relation to the Minister's submission regarding the issue raised by Plaintiff M1: The extent of consideration of an issue required (and whether an inference may be drawn that it was not considered) when the issue was not articulated by the parties.
96 The applicant then after hearing sought to adduce evidence of the Statement of Facts, Issues and Contentions lodged by the applicant in the Tribunal proceeding that was the subject of the decision in Deng. The applicant sought to rely on this evidence for the purpose of expanding on her submission regarding the comparative strength of the applicant's case to that that of Mr Deng. This falls outside the scope of leave granted by the Court to make further submissions and is rejected.
97 Furthermore, the applicant's further submissions filed after hearing regarding the "first proposition" (which was a further argument with respect to ground 2 and how Deng was to be interpreted) also are outside the scope of leave granted.
98 Given my finding that ground 1 is not made out I do not need to consider the question of materiality. However, I accept if I am wrong in this regard that the applicant would meet the threshold of materiality.