FEDERAL COURT OF AUSTRALIA Nirbhai v Minister for Immigration and Border Protection [2016] FCA 161 Appeal from: Nirbhai v Minister for Immigration [2015] FCCA 2833 File number: SAD 393 of 2015 Judge: WHITE J Date of judgment: 29 February 2016 Catchwords: Migration – application for judicial review – decision of Migration Review Tribunal to affirm decision of the Minister to refuse visa application – relationship between appellant and sponsoring spouse has ceased – appellant claims to have suffered family violence – meaning of the term 'family violence' in Migration Regulations – whether appellant has "suffered family violence" by reason of alleged infidelity of spouse. Held: appeal dismissed Legislation: Migration Act 1958 (Cth) s 476 Migration Regulations 1994 (Cth) regs 1.22, 1.23, 1.24, 1.25, 801.221, 820.221 Cases cited: Bushell v Repatriation Commission (1992) 175 CLR 408 Cakmak v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 257; (2003) 135 FCR 183 Sok v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 56; (2005) 144 FCR 170 Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 at 438 Date of hearing: 18 February 2016 Registry: South Australia Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 35 Counsel for the Appellant: The Appellant appeared in person Counsel for the Respondents: Mr P d'Assumpcao Solicitor for the Respondents: Australian Government Solicitor ORDERS SAD 393 of 2015 BETWEEN: NIRBHAI NIRBHAI Appellant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: WHITE J DATE OF ORDER: 29 FEBRUARY 2016 THE COURT ORDERS THAT: 1. The appeal be dismissed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT WHITE J: 1 The primary question on this appeal is whether a person "suffers family violence" within the meaning of reg 820.221(3) of the Migration Regulations 1994 (Cth) when the infidelity of the person's spouse results in her becoming pregnant to another man and, consequently, the person becomes depressed. The secondary question is whether, if so, a failure of the Migration Review Tribunal (the MRT) to recognise that that was so was a form of jurisdictional error in respect of which judicial review should be granted. 2 The framing of the questions in that way involves some concessions to the circumstance that the appellant has been, and continues to be, without legal representation but nevertheless I think it states fairly the issues for the Court's determination. 3 In my opinion, the primary question should be answered in the negative. It is therefore not necessary to address the secondary question. 4 The primary question arises in the following circumstances. The appellant, who is an Indian national, came to Australia in August 2008 on a Student visa. He met his future wife on 27 November 2010 and, on 31 August 2011, they married. At that time the appellant held a Bridging visa. 5 The appellant applied for a Partner visa on 30 September 2011. The Department of Immigration and Citizenship treated this as an application for two separate visas, being a Partner (Temporary) (Class UK 820) visa and a Partner (Residence) (Class BS 801) visa. The appellant's wife was the "sponsoring partner". On 22 June 2012, the Minister's delegate refused the application on the basis that the appellant did not satisfy a criterion requiring him to have made his visa application within 28 days of the date upon which he had ceased to hold a substantive visa. 6 On review, the MRT concluded that there were "compelling reasons" in the appellant's case not to apply that criterion. The MRT then remitted the matter to the Department for consideration of the remaining matters arising from the appellant's application. 7 Before the Minister's delegate had determined the matter, solicitors for the appellant's wife informed the Department that, on their instructions, the marital relationship had terminated. The solicitors' letter made other assertions concerning the circumstances of the marriage which it is not necessary to recount in these reasons. 8 On 23 December 2013, the appellant was granted the Partner (Temporary) UK 820 visa. 9 After giving him an opportunity to comment on his wife's assertion, the Minister's delegate found (on 30 December 2013) that the appellant did not satisfy the requirements of reg 801.221 for the Residence visa. 10 The decision was confirmed by the MRT on review after hearing evidence from both the appellant and his wife. It was common ground that the relationship between the two had broken down. The wife produced a birth certificate for her son born in January 2014 naming a person other than the appellant as the child's father. The appellant later produced medical records indicating that he had suffered some depression since the marital separation. One record indicated that the separation had occurred in February 2013 and another in July 2013. At the initial hearing on 2 October 2014, the appellant informed the MRT that his wife was living with the father of her child. However, the wife told the MRT that that relationship had also ceased. 11 The MRT found that the appellant did not meet the criteria in reg 801.221(2) because he was no longer being sponsored by his wife, who had been his sponsoring partner. The MRT then considered the alternative means by which the reg 801.221 criteria could be satisfied. The criterion in subreg (6) is the only criterion said now to be relevant so that it is not necessary to refer to the alternatives. 12 Regulation 801.221(6) provides (relevantly): (6) An applicant meets the requirements of this subclause if: … (b) the applicant would meet the requirements of subclause (2) or (2A) except that the relationship between the applicant and the sponsoring partner has ceased; and (c) either or both of the following circumstances applies: (i) either or both of the following: (A) the applicant; (B) a dependent child of the sponsoring partner or of the applicant or of both of them; has suffered family violence committed by the sponsoring partner; … There was no suggestion that the appellant could meet the criteria specified in reg 801.221(6)(c)(ii) and so it has not been quoted. 13 The terms of reg 801.221 meant that, if it was to be applicable, the appellant had to be a person who had suffered "family violence" committed by his wife. The MRT found that there was no such evidence to that effect. Accordingly, his application for review failed. 14 The appellant then applied to the Federal Circuit Court (the FCC) for judicial review of the MRT decision, pursuant to s 476 of the Migration Act 1958 (Cth). His application raised complaints which differ from that raised on the appeal to this Court. Those grounds were as follows: (1) Review of Tribunal Decision. I am not satisfied with it. (2) She did not considered true points to make decision. (3) My wife and me (spouse) we are together now and she refused saying we are not in relation anymore. My wife angry with me and goin[g] to her mother's house and she sayin[g] she livin[g] with her mother in law. Her mother in law is in India, not here. So my decision need to review and need to justify with true facts not false. So I need it to be review[ed] by the Federal Court. 15 By these grounds the appellant appeared to challenge the basis upon which the MRT had proceeded, namely, that the marital relationship had ceased. The FCC Judge regarded this as "an inchoate plea for a merits rehearing" which was beyond the jurisdiction of that Court: Nirbhai v Minister for Immigration [2015] FCCA 2833 at [32]. 16 The sole ground of appeal in the Notice of Appeal to this Court is as follows: 1. In the Tribunal's decision from paragraph 21 to 26 its quite evident that my wife got pregnant from another man while in being relationship with me. In paragraph 33 of decision, Tribunal state that "In the present case there is no evidence that sponsoring partner is died or that the applicant has suffered family violence perpetrated by the sponsoring partner. There is further no evidence and it has been claimed in this case that applicant has a dependent child." Tribunal contradicts with its own observation stated in paragraph 15-26. My wife getting pregnant with some else's child while being in relationship with me in itself constitutes as domestic violence. Tribunal made errors in its decision. I have pointed out Jurdictional error in the tribunals' judgement in my Application for Federal Circuit Court but still FCC made an order against me. 17 As can be seen, by this ground the appellant complains that the MRT should have found that his wife's conduct in becoming pregnant to another man whilst in a relationship with him was a form of family violence so that, in the terms of reg 801.221(6)(c)(i), he has "suffered family violence committed by the sponsoring partner". 18 Ordinarily, parties are not permitted to raise on appeal a point not taken in the Court below: Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 at 438. However, counsel for the Minister accepted that insofar as the appellant's ground of appeal raises a question of law the Court could hear and determine it. 19 There has been no finding of fact (and, indeed, there is some scope for doubt) that the appellant's wife did become pregnant to another while her relationship with the appellant subsisted but, for the purposes of resolving the present appeal, I will proceed on the basis (without deciding) that that was so. 20 At the hearing on 2 October 2014, the appellant asked the MRT Member for advice about a "family violence claim". The Member declined to give advice but gave the appellant until 30 October 2014 to take advice on such a claim and to submit any further information he wished. The appellant then provided by fax copies of records from his general practitioner which indicated that he had been experiencing depression since the separation from his wife, but did not otherwise claim that he had been a victim of family violence. 21 The term "suffered family violence" is elaborated in regs 1.22 and 1.23 of the Migration Regulations. 22 By reg 1.22, a reference in the Migration Regulations to a person having suffered family violence is a reference to a person being taken, under reg 1.23, to have suffered family violence. Regulation 1.23 provides for five circumstances in which an alleged victim is taken to have suffered family violence. Three of those circumstances require that there have been a form of judicial determination or order concerning the allegations or, at the least, resolution of such proceedings by an undertaking to a court. These circumstances were not applicable in the present case. 23 In those cases in which there have been no court proceedings, there must be an allegation that the alleged victim has suffered "relevant family violence". No such allegation was made to the MRT in this case. 24 The term "relevant family violence" is defined in reg 1.21 to mean: relevant family violence means conduct, whether actual or threatened, towards: (a) the alleged victim; or (b) a member of the family unit of the alleged victim; or (c) a member of the family unit of the alleged perpetrator; or (d) the property of the alleged victim; or (e) the property of a member of the family unit of the alleged victim; or (f) the property of a member of the family unit of the alleged perpetrator; that causes the alleged victim to reasonably fear for, or to be reasonably apprehensive about, his or her own well-being or safety. 25 Regulations 1.24 and 1.25 contain requirements for particular forms of evidence to be provided when an allegation of family violence is made. 26 In Cakmak v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 257; (2003) 135 FCR 183, the Full Court considered the effect the definition of "relevant domestic violence" which was then expressed in the following terms: A reference to relevant domestic violence is a reference to violence against the alleged victim or his or her property that causes the alleged victim or a member of the alleged victim's family, to fear for, or to be apprehensive about, the alleged victim's personal well-being or safety. The Full Court (Gyles, Conti and Allsop JJ) said: [61] [I]t is the plainest use of language, we think, that to "commit" or "perpetrate" violence or the threat of violence involves the act, or threat of, application of physical force. It goes without saying that the application of force (especially the threat of it) may be exhibited by, and in the context of, a myriad of factual circumstances. The person disposed to commit the acts of violence may have to do little way of word or deed to strike fear into someone as to their safety. Also, it goes without saying, that violence by spouse against spouse or other family member may well be accompanied by belittling, expressions of contempt and other conduct likely or intended to bring about coercion, humiliation, surrender or abasement. [62] However, belittling, lowering self esteem, "emotional violence" or "psychological violence" and such behaviour as surrogates or synonyms for violence is, we think, to broaden the scope of the regulations beyond their words. There must be "violence", or the "threat of violence", involving the application, or threat of application, of force such that the alleged victim is caused to fear for, or be apprehensive about, his or her well-being or personal safety. 27 In the later case of Sok v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 56; (2005) 144 FCR 170, the majority (Branson and Marshall JJ) held that the expression "domestic violence" should be understood as encompassing a wide range of behaviours and not limited to conduct involving actual or threatened physical harm, at [14]-[16]. Hely J considered himself bound to follow the decision in Cakmak. His Honour noted, however, at [87]: It would have been a simple drafting matter to give the regulation a broader reach. Had the regulation been couched in terms of conduct towards the alleged victim, then it would have encompassed intimidatory threats made to the alleged victim provided they engendered the requisite fear or apprehension in the alleged victim about his or her personal well-being or safety, however, that is not the course which the drafter adopted. 28 The terms of the present reg 1.21 appear to be an adoption of the suggestion made by Hely J. It now refers to "conduct", whether actual or threatened, towards identified persons or property which has the effect of causing the alleged victim to fear reasonably for, or to be reasonably apprehensive about, his or her own well-being or safety. 29 In the present case, there was not even a submission, let alone evidence, in the MRT that the wife had engaged in conduct causing the appellant to fear for, or be reasonably apprehensive about, his own well-being or safety. All the MRT had, on the assumed basis on which I am proceeding, was that the appellant's spouse had become pregnant to another while still in a relationship with him and that he had suffered some depression after their separation. It is not possible to discern any basis upon which the conduct which the appellant imputes to his wife (assuming that it did occur) could be said to have caused him to fear reasonably for, or to be reasonably apprehensive about, his own well-being or safety so that it could be characterised as a form of family violence as defined. 30 The MRT was of course obliged to consider any claim by the appellant arising reasonably from the materials placed before it: Bushell v Repatriation Commission (1992) 175 CLR 408 at 424-5. It cannot be said that the MRT failed to discharge that duty in the present case because a claim that the appellant had suffered family violence in the sense defined in regs 1.22 and 1.23 did not, and could not, arise from the materials presented by him. This was so even though the MRT had provided the appellant with an adjournment in which to consider such a claim. 31 For these reasons, the appeal cannot succeed on the grounds stated in the Notice of Appeal. 32 In these circumstances, it is unnecessary to consider the secondary question identified at the commencement of these reasons. 33 I add that, at the appeal hearing, the appellant again submitted that the MRT should not have found that the marital relationship had terminated. 34 The FCC Court Judge was correct to find that the submission to this effect did not raise a ground for judicial review. I note, in any event, that the time at which the continuance or otherwise of the relationship was to be considered was the time at which the MRT made its decision, namely, 31 October 2014. The appellant had acknowledged at the hearing in the MRT on 2 October 2014 that the relationship had ceased. Accordingly, even if the MRT had found that the marital relationship did subsist for a period after July 2013, it would have not availed the appellant. 35 For these reasons, the appeal cannot succeed and must be dismissed. I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice White. Associate: Dated: 29 February 2016