Reddy v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 192 (9 March 2005)

Reddy v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 192

MIGRATION - application for a Partner (Temporary) (Class UK) visa - nominator withdrew support for application - factors to be considered when determining whether nominator had a mutual commitment to a shared life with the applicant as husband and wife - joint bank accounts - long period of joint residence - nominator made use of applicant in financial terms – relevance of domestic violence by nominator after the date of application – decision-maker had regard to all relevant circumstances

Migration Regulations 1994 (Cth) reg 1.15A, Schedule 2 cl 820.221

Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 followed

SHANDYA REDDY v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS AND MIGRATION REVIEW TRIBUNAL CONSTITUTED BY MICHAEL NORTHCOTT

NSD 1406 OF 2004

TAMBERLIN J
SYDNEY
9 MARCH 2005

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1406 OF 2004

BETWEEN:	SHANDYA REDDY APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT MIGRATION REVIEW TRIBUNAL CONSTITUTED BY MICHAEL NORTHCOTT SECOND RESPONDENT
JUDGE:	TAMBERLIN J
DATE OF ORDER:	9 MARCH 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed.
2. There be no order as to costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1406 OF 2004

BETWEEN:	SHANDYA REDDY APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT MIGRATION REVIEW TRIBUNAL CONSTITUTED BY MICHAEL NORTHCOTT SECOND RESPONDENT

JUDGE:	TAMBERLIN J
DATE:	9 MARCH 2005
PLACE:	SYDNEY

1 This is an appeal from a decision of a Federal Court Magistrate dismissing an application for review of a decision of the Migration Review Tribunal ("the Tribunal") delivered on 5 May 2003, which affirmed a decision of the Minister that the visa applicant ("the appellant") was not entitled to the grant of a Partner (Temporary) (Class UK) visa.

2 The appellant, a national of Fiji, applied for a Class UK visa on 5 May 2000 on the basis of a claimed de facto relationship with the nominator, an Australian citizen. The appellant claimed to have met the nominator in Australia in December 1997 and started living with him in a de facto relationship on 18 February 1998.

3 On 6 December 2000, the nominator withdrew support for the application. The appellant subsequently claimed that she had formed a relationship with the nominator but that things had changed after the application was lodged and he had threatened to withdraw his nomination. The appellant claimed through her representative that she had been subjected to domestic violence by the nominator.

4 A Ministerial delegate refused the visa on 21 August 2001. After an application was taken to the Tribunal for review, a hearing was held on 25 March 2003.

5 The issue for the Tribunal to determine was whether, as at the date of the application, the appellant was the spouse of the nominator.

(ii) are not married to each other under a marriage that is recognised as valid for the purposes of the Act; and

(iii) are not within a relationship that is a prohibited relationship for the purposes of subsection 23B(2) of the Marriage Act 1961; and

(i) if either of the persons is domiciled in Australia – both of them have turned 18; or

(ii) if neither of the persons is domiciled in Australia – both of them have turned 16; and

(i) they have a mutual commitment to a shared life as husband and wife to the exclusion of all others; and

(iii) the extent of any pooling of financial resources, especially in relation to major financial commitments; and

(iv) whether one party to the relationship owes any legal obligation in respect of the other; and

(i) whether the persons represent themselves to other people as being married or in a de facto relationship with each other;

(iii) the degree of companionship and emotional support that the persons draw from each other; and

7 The Tribunal found that it was integral to the definition of "spouse" that the appellant and the nominator should have had a mutual commitment to share life together as husband and wife at the time of the application. The Tribunal accepted that the appellant had such a mutual commitment. It was also accepted that a mutual commitment does not require that the appellant and the nominator have an equal commitment to a shared life. However, the Tribunal expressed grave doubts that the nominator had a commitment to a shared life together with the appellant as husband and wife, having regard to evidence provided by the appellant, and made a finding that there was no such commitment on the part of the nominator.

8 The decision of the Tribunal recites the fact that the appellant asked the nominator in September 1998 whether he had been married before, whereupon the nominator became angry and told her that she was never to delve into his past. Her evidence to the Tribunal was that she did not become aware that the nominator had been married and had fathered two children prior to their relationship until after her relationship with the nominator ceased in December 2000. Her evidence, which was accepted by the Tribunal, was that after she had signed the application, the nominator, unbeknown to her, inserted the names of his wife and children by the marriage.

10 The Tribunal then proceeded to consider other matters, including the history of the violence by the nominator toward the appellant after the application had been lodged. The Tribunal accepted the appellant’s evidence that soon after lodging the application form, matters started to turn bad for the appellant in that the nominator started to show different aspects of his life and acted in a totally different way towards her. The nominator’s behaviour was unpredictable. The appellant said that by the end of August 2000, she was being held to ransom. The nominator would remind her that he had the keys to her future and that if she did not obey his every command he would ensure that she would be deported back to Fiji.

12 The Tribunal’s reasons state that all of the circumstances of the relationship, including the financial aspects of the relationship, the nature of the household, the social aspects of the relationship and the nature of the persons’ commitment to each other, are to be treated as relevant. The Tribunal went on to consider each of these aspects of the matter in relation to the nominator’s commitment to a shared life with the visa appellant as husband and wife.

13 There was some evidence before the Tribunal of joint bank accounts. In relation to these accounts, the reasons indicate that the evidence lent some support to the suggestion that the nominator had a commitment to a shared life with the appellant as husband and wife. However, the reasons also refer to evidence from the appellant that the nominator made use of her in financial terms, forced her to use her credit card to pay off his debts and ensured that she used all her savings during the course of the relationship so that she was totally dependent on him for survival. The Tribunal considered that, in view of this, it was satisfied that the nominator did not have a commitment to a shared life as husband and wife at the time of the application. On balance, it was considered that it was more likely that the nominator was using the appellant for financial gain during the relationship rather than making a commitment to a shared life with the appellant.

14 The reasons proceeded to consider the general history of the relationship and concluded that there had been a continuing pattern of joint residence since 14 December 2004. The reasons indicated that, considered in isolation, this material supported a finding that the nominator had a commitment to a shared life as husband and wife but that this factor had to be considered in relation to the totality of other findings.

15 The Tribunal gave consideration to the social aspects of the relationship. The Tribunal accepted that there were taunts and fits of jealousy and restrictions by the nominator to the appellant and that he prevented her visiting friends or speaking to anyone. At [40] of its reasons, the Tribunal references the fact that it had made adverse findings in relation to the non-disclosure of the nominator’s marriage and children and the onset of domestic violence and referred to the other matters discussed above.

16 When the relationship was considered as a whole, the Tribunal was not persuaded that the nominator had a commitment to shared life together with the appellant.

17 In a comprehensive judgment, her Honour set out in detail the reasoning of the Tribunal. After noting the principal arguments advanced by Mr Jones for the appellant, her Honour concluded that although the emphasised passages in the sections of the judgment which are quoted above at [8] and [11], if taken in isolation, could be considered to lend some support to the appellant’s case, the reasons of the Tribunal, when read as a whole in a fair and reasonable manner as required by Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 271-272 (Wu Shan Liang), did not disclose any error. Her Honour concluded that the findings about the nominator’s lack of candour and violence were to be understood in the context of reg 1.15A and the obligation it imposes to have regard to all the circumstances of the relationship. Her Honour referred to the fact that the sentences in the judgment, which I emphasised above, if read alone, might be seen as general and categorical, however, her Honour said that this was not the appropriate approach to the reasons for decision. In her Honour’s view, the Tribunal did not "impose" a general criterion of candour or absolute honesty about past relationships as being of itself sufficient to determine the outcome of the application adversely to the appellant in the present case. Her Honour considered that the Tribunal had regard to and weighed up the evidence before it, not only of the nondisclosure and the failure to respond to a specific inquiry about his past, but also his positive concealment of the prior marriage and the children and the completion of the visa application without the appellant’s knowledge. In relation to post-application violence, her Honour concluded that the Tribunal did not misstate the evidence and did not find that the existence of serious domestic violence was sufficient of its own force to require the conclusion that the nominator did not have the relevant commitment. Her Honour referred to the extensive canvassing of other considerations and references to the relationship as a whole by the Tribunal. Her Honour dealt in detail with all matters raised by the appellant.

18 On a fair and reasonable reading of the decision below, as required by Wu Shan Liang, I am not persuaded that the Tribunal gave determinative force to the evidence relating to either the non-disclosure or the post-application violence. I am satisfied that the decision-maker had regard to the relevant circumstances and applied the prescribed matters to the circumstances of this particular case. Throughout the Tribunal’s reasons, language is used to indicate that the decision-maker did not treat evidence as to lack of frankness and concealment as requiring a finding that the nominator lacked a mutual commitment. Obviously the decision-maker regarded this positive act of concealment on behalf of the nominator as an important issue which should be given considerable weight. The observations relating to disclosure, when fairly read, are, in my view, simply an indication that, in the normal course, one would expect candour and lack of active concealment where a commitment had been made by a party to a shared life. The language used by the decision-maker is consistent, when read in context, with such an approach. This general observation is then applied to the circumstances of the nominator and the visa appellant in the present case.

19 Likewise, in relation to the consideration of violence, the thrust of the reasoning by the decision-maker is that where the violence begins almost immediately after the date of the application, such conduct can be taken into account in considering the nominator’s approach to the duration of the relationship and whether there was a commitment by the nominator.

20 The conclusion that the violence and lack of candour were not each treated as being conclusive in their own right is reinforced by the detailed further references to financial aspects of the relationship, the nature of the household, the social aspects of the relationship and the extent of the commitment of the parties. These references indicate that the Tribunal was concerned to reach conclusions on balance and looked to the likelihood that the nominator was using the appellant for financial gain during the relationship.

21 The reasoning overall discloses a balancing of considerations although some are clearly considered more weighty than others. It cannot be said that the reasons do not take into account positive considerations in respect of the question whether there was a mutual commitment. In particular, there are some findings which tend to support the nominator’s commitment such as the period of joint residence and the existence of joint bank accounts.

22 In relation to the post-application manifestations of violence, the appellant submits that the Tribunal was not entitled to find that the existence of serious domestic violence could be used as a basis for holding that the nominator did not have a commitment. In support of this argument, reference was made by the appellant to cl 820.221 3(b) of Schedule 2 to the Regulations, which provides that an applicant continues to meet the requirements of subsection (1) if the applicant has suffered domestic violence committed by the nominating spouse before the time of the decision in circumstances where there was a mutual commitment at the time of the application. The appellant’s submission is that the 1995 amendment inserting the provision referring to "domestic violence" was intended to prevent the blackmailing of visa applicants by violent nominators using the threat of deportation as a basis and that such violence should not be taken into account in considering the nature of the commitment at the time of the application. The appellant submits that domestic violence after the application cannot be used as evidence that could lead to the refusal of a spouse visa application, as that would negate the protection intended to be given to a blameless visa applicant because such conduct could retroactively be seen to undermine her status as a spouse at the date of application. The amendment in terms is directed to a situation where the relationship had ceased after the application. The appellant says that the objective was to prevent visa applicants being pressured by nominators who seek to exploit them through the threat of losing their incipient entitlement to residence if they complain of the mistreatment they have received. It is said that it would be contrary to the policy behind those provisions to find a loop-hole that would allow the worst offenders who had planned their abuse from the beginning to escape this requirement. The appellant says that the amendments imply that post-application domestic violence on the part of a nominator should not be admitted as evidence of the nominator’s lack of commitment to the relationship.

23 It can be accepted that a disposition to violent behaviour is not a matter which normally arises overnight but is often a characteristic of a personality, so that the existence of violence immediately or shortly after the application can be seen as an element of the nominator’s character and a factor to take into account when considering whether the nominator had a commitment to a shared life. The existence of a tendency to violence or violence itself are not conclusive because a person can still be committed to another notwithstanding that he or she acts violently towards the other party. Human behaviour is infinitely complex and is not capable of neat segregation into discrete categories. However, provided the factor is not applied in a universal manner to all cases regardless of individual circumstances, it is a legitimate consideration which can be taken into consideration and weighed along with other considerations and, in my view, it is this latter course which the decision-maker appears to have adopted in the present case.

24 The existence of the required commitment is a question of fact and degree for the Tribunal, having regard to the circumstances and history of the particular relationship between the nominator and the appellant. In my opinion, it was open to the Tribunal to consider and give weight to the fact that violent conduct, which can be corrosive of a mutual commitment, as in the present case, is a consideration which points to a finding that there was no mutual commitment to a shared life together on the part of the nominator.

25 The present case is a most unfortunate one for the appellant because she is the "innocent" party who, at the date of the application, was found to have a commitment but the nominator by his deceit and violence was found not to have the required commitment thereby defeating her claim to qualify as a spouse.

26 In my view, however, no error has been demonstrated on the part of the Tribunal which would lead me to a conclusion that the reasoning of the Tribunal in this matter discloses any error in principle such as to warrant the grant of an application for review. In addition, I am in agreement with the careful and detailed reasoning of the learned Magistrate in this matter.

27 For these reasons, the appeal is dismissed. Bearing in mind the unusual and unfortunate circumstances of the appellant, I make no order as to costs.

I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

Solicitor for the Applicant:	Michael Jones

Counsel for the Respondent:	T Reilly

Solicitor for the Respondent:	Australian Government Solicitor

Date of Hearing:	28 February 2005

Date of Judgment:	9 March 2005

(ii)	the opinion of the persons’ friends and acquaintances about the nature of the relationship; and
(iii)	any basis on which the persons plan and undertake joint social activities;

Federal Court of Australia

Reddy v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 192 (9 March 2005)