Ahm22 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 6
•19 January 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AHM22 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 6
File number(s): PEG 8 of 2022 Judgment of: JUDGE KENDALL Date of judgment: 19 January 2022 Catchwords: MIGRATION – Partner visa – decision of the Administrative Appeals Tribunal – whether the Tribunal failed to complete its statutory desk to make findings on the matters set out in regs 1.09A(3) and 1.15A(3) of the Regulations and whether any error in this regard was material – jurisdictional error established – writs issued. Legislation: Migration Act 1958 (Cth), ss 5CB, 5F, 375A, 376
Migration Regulations 1994 (Cth), regs 109A, 115A, cll 820.211 and 820.221 and Part 820 of Schedule 2Cases cited: ABX15 v Minister for Immigration [2015] FCCA 3003
BYM16 v Minister for Immigration [2017] FCCA 2445
He v Minister for Immigration and Border Protection [2017] FCAFC 206
Minister for Immigration and Border Protection v SZMTA [2019] HCA 3
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17
Nguyen v Minister for Immigration & Border Protection [2018] FCA 1374
PQSM v Minister for Home Affairs [2020] FCAFC 125Division: Division 2 General Federal Law Number of paragraphs: 136 Date of hearing: 20 October 2021 Place: Perth Counsel for the Applicant: Mr H Glenister Solicitor for the Applicant: Savannah Legal Counsel for the First Respondent: Mr P Macliver Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore ORDERS
PEG 8 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AHM22
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
19 JANUARY 2022
THE COURT ORDERS THAT:
1.A writ of certiorari issue quashing the decision of the second respondent dated 29 October 2020.
2.A writ of mandamus issue directed to the second respondent requiring it to reconsider and determine the applicant’s application for review according to law.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE KENDALL:
BACKGROUND
The applicant was born in the Hong Kong Special Administrative Region of the People’s Republic of China (Court Book (“CB”) 2). She arrived in Australia in 2012 as the holder of a working holiday visa. She departed in April 2013 (CB 99). The applicant then returned to Australia in April 2014 as the holder of a student visa (CB 99).
The applicant claims to have met [omitted] (the/her “sponsor”) on 1 August 2015. She claims to have entered into a de facto relationship with the sponsor on 10 January 2016 (CB 17).
On 28 April 2017, the applicant lodged an application for a Partner (Temporary) (Class UK) (Subclass 820) / Partner (Residence) (Class BS) (Subclass 801) visa (the “visa”) (CB 1-27) on the basis of her relationship with the sponsor.
On 10 August 2017, a “notification of change in circumstances” form was provided to the then Department of Immigration and Border Protection (the “Department”) advising that the sponsor had obtained Australian citizenship (CB 29).
Additional documents were provided to the Department in support of the applicant’s visa application (CB 32-133), including a Sponsorship application form (CB 32-43), two Form 888 statutory declarations (CB 87-90), a Form 80 (CB 91-108) and other medical, financial, travel and property related material.
On 4 July 2018, the Department asked the applicant to provide additional evidence of her relationship with the sponsor (CB 134-139).
In response to that request, the applicant provided written submissions to the Department (CB 140-141) and further supporting material (CB 142-159).
On 7 September 2018, a delegate of the first respondent (the “Minister”) refused to grant the applicant the visa (CB 166-210). The delegate was not satisfied that the applicant was the “spouse” or “de-facto partner” of the sponsor as that term is defined in the Migration Act 1958 (Cth) (the “Act”) and the Migration Regulations 1994 (Cth) (the “Regulations”). Accordingly, the applicant did not meet cl 820.211 of the Regulations. On that basis, the delegate refused to grant the applicant the visa.
On 14 September 2018, the applicant filed an application for review of the delegate’s decision in the Administrative Appeals Tribunal (the “Tribunal”) (CB 211-213). The applicant was represented by a registered migration agent (CB 214).
On 20 September 2018, the Department provided the Tribunal with a certificate and notification regarding the disclosure of information under s 376 of the Act (CB 219).
On 28 September 2018, the Tribunal wrote to the applicant (through her registered migration agent) requesting additional information about her relationship with the sponsor (CB 220-225).
On 2 October 2018, the Department provided the Tribunal with a certificate and notification regarding disclosure of information under s 375A of the Act (CB 226).
The applicant provided additional information to the Tribunal, comprising travel receipts, photographs, financial records and property related documents (CB 227-274).
On 13 May 2019, the Tribunal wrote to the applicant (through her registered migration agent) requesting further additional information regarding the circumstances of the applicant’s relationship with the sponsor (CB 275-280).
The applicant provided further additional information to the Tribunal, comprising health insurance documents, receipts, financial records, tax returns, utility bills, invoices and photographs (CB 281-321).
On 24 February 2020, the Tribunal invited the applicant to attend a hearing before it on 12 March 2020 (CB 322-325).
The applicant provided further material to the Tribunal comprising photographs, utility bills, various tax invoices, tax returns, financial records and a marriage certificate for the applicant and the sponsor (CB 330-453).
On 12 March 2020, the applicant appeared at a first hearing before the Tribunal with the sponsor. The applicant was assisted by her registered migration agent and an interpreter in the Cantonese and English languages (CB 454-457).
Following the hearing on 12 March 2020, the Tribunal invited the applicant to attend a further hearing before it on 14 April 2020 (CB 458-461).
On 13 March 2020, the applicant’s representative wrote to the Tribunal providing a response to hearing invitation and notifying the Tribunal of concerns raised by the sponsor (CB 462-466).
On 17 March 2020, the applicant’s representative provided the Tribunal with email correspondence between the Perth Marriage Office and the applicant regarding an initial meeting to lodge a Notice of Intended Marriage on 10 April 2018 (CB 469-471). Later that day, the Tribunal advised the applicant’s representative that an opportunity would be provided at the hearing to discuss issues raised by the sponsor (CB 472).
On 20 March 2020, the Tribunal notified the applicant (through her representative) that the hearing would be postponed “to minimise the risk of transmission of COVID-19”
(CB 473-475).
The applicant then provided further material to the Tribunal comprising employment documents, photographs, educational records, travel documents and a personal statement from the sponsor (CB 478-524).
On 20 July 2020, the Tribunal invited the applicant to attend a further hearing before it on 10 August 2020 (CB 528-532).
The applicant provided further material to the Tribunal comprising marriage documents and photographs (CB 539-552).
On 3 August 2020, the applicant’s representative provided written submissions to the Tribunal via email (CB 553-556).
On 10 August 2020, the applicant appeared at a second hearing before the Tribunal with the sponsor. The applicant was again assisted by her registered migration agent and an interpreter in the Cantonese and English languages (CB 557-560).
On 29 October 2020, the Tribunal affirmed the delegate’s decision not to grant the applicant the visa (CB 564-574).
On 25 November 2020, the applicant applied to this Court for judicial review of the Tribunal’s decision. The application is brought pursuant to s 476 of the Act. To obtain assistance from this Court, the applicant must show that the Tribunal fell into jurisdictional error.
TRIBUNAL’S DECISION
The Tribunal’s decision is 11 pages long and spans 69 paragraphs. The final page of the decision contains an extract of relevant provisions contained in the Regulations.
The Tribunal began by identifying the type of visa refusal decision under review (at [1]). It outlined when the applicant applied for the visa, the basis upon which the application was made, summarised the legislative criteria (at [2]) and explained why the delegate refused to grant the applicant the visa (at [3]).
The Tribunal also confirmed that the applicant and the sponsor had appeared before it on 12 March 2020 and again on 10 August 2020 (at [4]). The Tribunal noted that the delay in scheduling the second hearing was due to the COVID-19 pandemic and explained that, given integrity concerns the Tribunal had with respect to the applicant, the Tribunal opted to postpone until the hearing could be conducted in person (at [5]).
The Tribunal explained that oral evidence was received from the sponsor at the hearing on 10 August 2020 and noted that no other witnesses had given evidence. The Tribunal also confirmed that a translator in the Cantonese and English languages was used at both hearings (at [6]) and that the applicant’s registered migration agent also attended those hearings (at [7]).
The Tribunal identified that the issue before it was whether the applicant and the sponsor “were in a genuine married relationship” as required by the Regulations (at [9]).
The Tribunal then referenced a comprehensive list of the documentary evidence which had been provided to it (and which was not before the delegate) (at [10]).
The Tribunal explained that the Departmental file included non-disclosure certificates which were issued under ss 375A and 376 of the Act and that the Tribunal was satisfied that those certificates were valid (at [11]).
In relation to the certificates, the Tribunal noted that:
(a)the s 375A certificate was issued in relation to a document containing information regarding third parties and was either provided in confidence or as part of an ongoing investigation (at [12]);
(b)the s 376 certificate was issued in relation to information given in confidence and to which s 375A of the Act did not apply (at [13]);
(c)copies of the certificates were provided to the applicant by the Tribunal (at [14]);
(d)despite being provided an opportunity to do so, the applicant made no submissions regarding the validity of either certificate (at [15]); and
(e)the information indicated that the applicant was “working in the sex industry” and that her relationship with the sponsor may have been “for the purpose of maintaining a visa to stay in Australia (at [16]).
The Tribunal explained:
17.The Tribunal exercised its discretion to disclose the substance of the allegation to the visa applicant as it relates directly to questions regarding the genuine nature of the relationship.
The Tribunal then detailed that it had informed the applicant of the information contained in the certificates at the first hearing (on 12 March 2020) and provided particulars of the information at that hearing to the applicant pursuant to s 359AA of the Act. The Tribunal explained that:
(a)the applicant was advised that the Department had information which suggested that she was “working as a prostitute” (including the relevant business name and locations) and questioned the reason she had entered into a relationship with the sponsor (at [18]);
(b)it had told the applicant that its concern was not about “the nature of the work” but, rather, the motivation for the applicant commencing a relationship with the sponsor and whether the sponsor was aware of “the nature of her work” (at [19]);
(c)the hearing had been adjourned for a period of time to allow the applicant to seek advice from her representative (at [20]);
(d)upon resumption of the hearing, the applicant “denied ever working as a sex worker” and informed the Tribunal that she was employed to do beauty work with a particular focus on “eyelash extensions” (at [21]);
(e)upon further questioning as to the services provided by her employer, the applicant confirmed that she did “provide sexual services” and, when asked by the Tribunal if the sponsor was aware of this, the applicant said that “he was not” (at [22]);
(f)the Tribunal adjourned the hearing again to allow the applicant an opportunity to inform the sponsor before he was questioned by the Tribunal about the applicant’s evidence (at [23]);
(g)upon resumption of the hearing, the applicant told the Tribunal that the sponsor “was not overly concerned by … her employment as a sex worker” (at [24]); and
(h)the hearing was adjourned when the applicant became distressed and was “not in a state to continue to answer questions” (at [25]).
The Tribunal continued:
26.The Tribunal, with consideration to the vastly different replies given as sworn evidence from the visa applicant during the first hearing held significant concerns with regard to the credibility of the visa applicant as a witness.
The Tribunal continued:
Whether the parties are in a spouse or de facto relationship
28.Clauses 820.211(2)(c)(B) and 820.221 require that at the time the visa application was made, and at the time of this decision, the applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. In the present case the applicant claims to be the spouse of the sponsor who is an Australian citizen.
29.‘Spouse’ is defined in s.5F of the Act and provides that a person is the spouse of another where the two persons are in a married relationship. Persons in a married relationship must be married to each other under a marriage that is valid for the purposes of the Act, there must be a mutual commitment to a shared life as a married couple to the exclusion of all others, the relationship must be genuine and continuing, and the couple must live together, or not live separately and apart on a permanent basis: s.5F(2)(a)-(d). In forming an opinion about these matters, regard must be had to all of the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the parties’ household and their commitment to each other as set out in r.1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in r.1.15A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.
Are the parties validly married?
30.If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship.
31.The application for the visa was lodged on 28 April 2017. As the parties were not married the delegate assessed the application under section 5CB for de facto couples. At the time of the delegate's decision on 7 September 2018, the parties claimed to remain in a de facto relationship. The Tribunal was provided a marriage certificate for marriage held on 13 October 2018 in Western Australia and the Tribunal accepts the validity of that marriage. The Tribunal considered the relationship requirements under section 5CB for time of application criteria, and as well as section 5F(2)(a), married criteria for time of decision.
In relation to other requirements for a spouse relationship, the Tribunal noted:
32.The Tribunal considered all of the aspects of each matter in r.1.15A(3)(a), (b), (c) and (d), and other circumstances of the relationship under r.1.15A(2), with the following findings.
In assessing the financial aspects of the relationship, the Tribunal:
(a)considered joint assets and liabilities, pooling of financial resources, legal obligations or joint liabilities and general sharing of household expenses (at [33]);
(b)acknowledged evidence of a joint bank account which was used for the sharing of some expenses and noted that the applicant and the sponsor had some understanding of the other’s financial situation. Further, they had identified each other as “a spouse” for taxation purposes as early as 2017. The Tribunal placed weight on that aspect of financial situation (at [34]);
(c)noted that the applicant and the sponsor owned no major assets together and had no joint liabilities. However, given the applicant’s visa status, the Tribunal concluded that it was unrealistic to expect such joint liabilities and, accordingly, placed little weight on a lack of evidence in that regard (at [35]);
(d)detailed various receipts for the purchase of goods which were provided but noted that the lack of explanation about whether they were individual purchases or gifts meant that little weight could be placed on those documents (at [36]);
(e)confirmed receipt of utility bills in individual names which were issued to the same address but considered that the bills supported the claim that the applicant and sponsor reside at the same address (not that they pooled financial resources). Little weight was placed on these documents (at [37]); and
(f)placed some weight on health and other insurance held in joint names (at [38]).
The Tribunal noted that it was reasonable expect the applicant and sponsor to have some knowledge of the other’s financial situation, however, oral evidence given at the hearing indicated that the applicant was working in a job and earning an income that the sponsor was not aware of (at [39]).
Similarly, the Tribunal considered it reasonable to expect the applicant to have knowledge of the ownership of the property she lived in with the sponsor (at [40]). However, at the time of the Tribunal’s decision, whilst there was evidence to suggest that the sponsor’s parents had provided funding for the purchase of the property, there was no evidence before the Tribunal about any financial arrangements or obligations in place between the sponsor and his parents or if rent had been paid or received (at [41]).
The Tribunal concluded:
42.With consideration to all of the financial aspects of the relationship, the Tribunal is not satisfied that the parties have demonstrated sufficient knowledge of each other's employment and financial situation to indicate they were in a genuine de facto relationship at the time of application, or a genuine marriage at the time of this decision.
In assessing the nature of the household, the Tribunal considered evidence of that nature, including joint responsibility for care of children, living arrangements and sharing of housework (at [43]). The Tribunal:
(a)noted that the applicant and sponsor did not have any children but confirmed that it had heard evidence that previous and current addresses of the applicant and the sponsor were shared by another friend (at [44]);
(b)accepted “evidence indicating the parties have resided at the same location” (at [45]); and
(c)noted that the applicant had two pet cats which resided with the applicant and her sponsor until April 2020 when they moved into the house owned (or financed) by the sponsor’s father. Further, the Tribunal noted that the sponsor’s parents were unaware that the applicant lived with the sponsor or that the sponsor was married to the applicant (at [46]).
The Tribunal concluded:
47.The Tribunal accepts that the parties most likely do reside together and share to a degree housework. However, given as it appears that the sponsor won't allow the visa applicant to keep her pets in the house in order to keep the marriage secret from his parents, the Tribunal finds the nature of the household is more representative of housemates sharing a house than that of a genuine married relationship.
In assessing the social aspects of the relationship, the Tribunal indicated that it had considered whether “the parties represent themselves to other people as being married”, the opinions of friends and acquaintances about their relationship and any planning or undertaking of joint social activities (at [48]).
The Tribunal:
(a)determined that it was clear that the sponsor’s parents remained completely unaware of the relationship between the sponsor and the applicant, with the sponsor claiming that they did not approve of the relationship (at [49]);
(b)noted that the parties claimed to have met in August 2015, commenced their relationship in January 2016, submitted the visa application on 28 April 2017 and were married on 7 September 2018 (at [50]);
(c)noted that wedding photographs submitted to the Tribunal indicated that only three guests attended the wedding ceremony (at [51]); and
(d)accepted that the applicant and sponsor undertook some joint travel and photographs were provided showing them in various settings with friends (at [52]).
The Tribunal concluded:
53.The Tribunal notes that no third-party witnesses were offered to provide evidence in relation to the social aspects of the relationship. Whilst it is submitted that the parties are introverted persons and remain private, it is reasonable to expect that a third-party witness might be submitted, considering the included photos of claimed friends in their company.
54.With little evidence from other parties as to how they represent their relationship to others, and with consideration that the sponsor’s family remain unaware of the relationship, marriage and co-habitation of their son with the visa applicant, the Tribunal places little weight on the social aspects of the relationship.
In considering “the nature of the persons’ commitment to each other”, the Tribunal noted that consideration had been given to the duration of the relationship, the length of time the applicant and sponsor had lived together, the degree of companionship and emotional support and whether the relationship was seen as long-term (at [55]).
The Tribunal:
(a)noted the conflicting oral evidence given by the applicant about her work in the sex industry. In this regard, the applicant originally said that she had informed the sponsor she was considering such work and that the sponsor had “promised to take care of her” to dissuade her from working in that area. However, later evidence suggested that the sponsor remained unaware of the applicant’s employment until the first Tribunal hearing on 12 March 2020 (at [56]);
(b)described evidence given about multiple trips that the sponsor took to Hong Kong without the applicant but noted that this did not itself indicate that “a relationship is not genuine” (at [57]);
(c)was concerned by evidence that the sponsor had returned to Hong Kong in December 2018, engaged in a sexual relationship with a friend while in Hong Kong and that that person visited the sponsor in early 2019. Of further concern to the Tribunal was that the applicant returned to work in the sex industry upon hearing of the affair as a “form of revenge” against the sponsor (at [58]);
(d)acknowledged that neither taking part in a short affair, nor employment as a sex worker, means that a relationship could not be considered genuine or exclusive (at [59]).
The Tribunal concluded:
60.The Tribunal, having heard multiple versions of greatly different evidence from the visa applicant about when she engaged in what work and when her sponsor was aware of her employment, finds the visa applicant to significantly lack credibility as a witness. I therefore place very little weight on her evidence of the relationship.
61.Whilst the parties submitted that they provide some companionship and emotional support to each other, I am not satisfied they see the relationship as long-term.
The Tribunal considered the circumstances of the relationship between the applicant and the sponsor, including oral and written submissions (at [62]) and ultimately found that:
63.The Tribunal is [sic] notes that, given the nature of the sponsor's employment and the position of trust expected from such position, the sponsor has entered into the relationship in good faith. As noted above, the Tribunal holds serious credibility concerns about the applicant's evidence of the relationship. Having regard to the evidence and in light of those credibility concerns, the Tribunal does not accept the commitment to the relationship was mutual.
64.The Tribunal remains unsatisfied that sufficient evidence was presented to establish the genuine nature of the de facto relationship at the time of the visa application.
65.Further, and in any event, given consideration as the evidence as a whole, the passage of time and including the subsequent marriage of the parties, the Tribunal is unsatisfied the parties remained in genuine a de facto or married relationship at the time of this decision.
The Tribunal was not satisfied that the requirements of s 5CB of the Act had been met at the time of the visa application or that ss 5CB or 5F of the Act were met at the time of its decision (at [66]). The applicant therefore did not meet cll 820.211(2)(a) or 820.221 of the Regulations (at [67]) and did not satisfy the criteria for the grant of the visa (at [68]).
On the basis of the above, the Tribunal affirmed the decision not to grant the applicant the visa (at [69]).
PROCEEDINGS IN THIS COURT
In submissions filed by the applicant on 4 October 2021, the applicant sought leave to amend her grounds of review. The amended grounds provide as follows:
Ground 1
The Second Respondent (Tribunal) made a jurisdictional error by failing to complete its statutory task due to its misunderstanding of reg 1.09 and reg 1.15A of the Migration Regulations 1994 (Cth) which required it to make findings on the matters set out in reg 1.09(3) and reg 1.15A(3).
Particulars
i. The Tribunal failed to make findings on:
a.the opinion of the Applicant’s and the sponsor’s friends and acquaintances about the nature of the relationship (reg 1.09(3)(c)(ii), reg 1.15A(3)(c)(ii)); and
b.the duration of the relationship (reg 1.09(3)(d)(i), reg 1.15A(3)(d)(i)); and
c.the length of time the Applicant and the sponsor have lived together (reg 1.09(3)(d)(ii), reg 1.15A(3)(d)(ii)).
Ground 2
The Tribunal made a jurisdictional error by failing to consider the Form 888 statutory declarations made by witnesses to the Applicant’s relationship with the sponsor.
The Minister, in submissions filed on 13 October 2021, opposed leave being granted.
The matter proceeded to a hearing on 20 October 2021.
The applicant was represented by Mr Glenister of counsel. The Minister was represented by Mr Macliver of counsel. As noted above, both counsel provided outlines of written submissions dated 4 October 2021 and 13 October 2021 respectively. The Court thanks both parties for the clarity of their written submissions.
Mr Glenister and Mr Macliver also appeared, respectively, at the hearing before the Court on 20 October 2021. Their oral submissions were clear and concise and the Court thanks both advocates for their considerable assistance with this matter and for the sensitivity with which they handled the factual issues relevant to this matter.
At the start of the hearing, Mr Glenister asked that his affidavit (affirmed and filed on 19 October 2021) be taken as read and in evidence. The Court agreed. Mr Glenister then advised the Court that the applicant no longer pressed (proposed) amended ground 2 and would seek only to substitute (proposed) amended ground 1 (as outlined above). Mr Macliver advised the Court that his instructions were to “to oppose the proposed amendment”.
Mr Macliver provided oral submissions in this regard as follows.
Mr Macliver asked the Court to take note of passages cited from two decisions of Judge Smith (as His Honour then was) which were referred to in his written submissions (at paragraph [17]) with respect to late requests for amendments. Those passages are detailed below.
In ABX15 v Minister for Immigration [2015] FCCA 3003, Judge Smith (as His Honour then was) stated:
20.In those circumstances, even if I accepted that the points sought to be raised by the amendment were either important or reasonably arguable (which I do not), I would refuse the application for leave to amend. I must use the power to allow an amendment in a way that enables the just, efficient and economical resolution of the proceedings and to avoid them being protracted. To exercise the power to allow an amendment in circumstances where there is no explanation given for a failure to comply with the Court’s directions and a very late application for amendment would, in my view, be an improper exercise of the power.
Further, in BYM16 v Minister for Immigration [2017] FCCA 2445, Judge Smith (as His Honour then was) held:
4.The applicant filed his written submissions on 26 May 2017 and also filed a document purporting to be an amended application. This “amended application” amended the two grounds in the original application and inserted four completely new grounds. No application in a case was filed and no explanation was given, by affidavit or otherwise, for the failure to comply with the Court’s orders.
5.The Minister filed his submissions on 29 May 2017. In those submissions, the Minister attempted to deal with the grounds raised for the first time in the applicant’s written submissions on the previous working day. He submitted that leave to amend the application should be refused. I agree.
6.There appears to be an attitude amongst legal practitioners who act for applicants in migration proceedings that neither the rules of Court nor Court orders, even those made by consent, apply to them. Perhaps that attitude has been encouraged by years of judicial lassitude, combined with the cost-consciousness of practitioners appearing for the Minister, or their adherence to the perceived breadth of the obligations of the model litigant. Whatever be the cause of this attitude, it must change.
7.The power of the Court to grant an amendment is to be exercised for the purpose of enabling the just, efficient and economical resolution of the proceedings. No doubt, the merits of any grounds sought to be raised by an amendment are ordinarily relevant to the exercise of that power. However, in circumstances where an opportunity to amend has already been given, but eschewed, and there is no explanation for a very late and prejudicial application for amendment, the merits are not necessarily decisive.
8.There is no excuse for the delay in this case. The same solicitors have acted throughout these proceedings. They were involved in the review process conducted by the IAA. They knew of the orders allowing an amendment 2½ months after the orders and 7 months before the hearing. They had all of the relevant material by early October 2016, if not far earlier. They knew of the timetable for submissions. In those circumstances, the solicitors’ conduct of this case is unforgiveable and cannot be condoned by the grant of leave to amend.
The Court considered this information in detail and noted that the affidavit of Mr Glenister (affirmed and filed on 19 October 2021) stressed that the late amendment was not due to any error on the part of the applicant.
In the circumstances of this matter, where Mr Macliver for the Minister had comprehensively responded to the proposed amended grounds of review (in written submissions filed on 13 October 2021), the Court concluded that Mr Macliver was in a position to respond to the proposed amended grounds of review and did not consider there to be any prejudice to the Minister in granting the applicant leave to rely on the (now sole) amended ground of review. In the event that the Minister claims any prejudice (which Mr Macliver did not address at the hearing of the matter), any such prejudice can, in any event, be cured by an order for costs thrown away (as submitted by Mr Glenister in his affidavit at [7d]).
In the circumstances, the Court granted the applicant leave to rely on the proposed amended ground 1 (as outlined in submissions filed on behalf of the applicant on 4 October 2021).
The material before the Court thus includes written submissions filed on behalf of the applicant (including amended ground 1), the affidavit of Hamish William Glenister affirmed and filed on 19 October 2021, a Court Book filed with the Court in three volumes and numbering 574 pages in total (marked as Exhibit 1) and written submissions filed on behalf of the Minister on 13 October 2021.
CONSIDERATION
Legislative provisions
Before considering the applicant’s sole ground of review, it is useful to first set out the relevant legislative provisions applicable in this matter.
Here, the applicant applied for a Subclass 820 visa. The criteria for the grant of that visa include the criteria outlined in Part 820 of Schedule 2 of the Regulations.
Clause 820.2 of Schedule 2 of the Regulations sets out the primary criteria which must be satisfied by “at least 1 member of a family unit”.
The criteria which must be satisfied at the time of application are set out in cl 820.21 of Schedule 2 of the Regulations.
Relevant in this case is that, at the time of application, the applicant was required to satisfy cl 820.211(2) of Schedule 2 of the Regulations which states:
820.211
…
(2) An applicant meets the requirements of this subclause if:
(a) the applicant is the spouse or de facto partner of a person who:
(i)is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and
(ii)is not prohibited by subclause (2B) from being a sponsoring partner; and
…
At the time of the application for the visa, the applicant was a de facto partner of the sponsor.
The criteria which must be satisfied at the time of decision are set out in cl 820.22 of Schedule 2 of the Regulations.
Relevant in this case is that, at the time of decision, the applicant was required to satisfy cl 820.211(1) of Schedule 2 of the Regulations which states:
820.221
…
(1)In the case of an applicant referred to in subclause 820.211(2), (5), (6), (7), (8) or (9), the applicant either:
(a)continues to meet the requirements of the applicable subclause; or
(b) meets the requirements of subclause (2) or (3).
…
At the time of the Tribunal’s decision, the applicant was the spouse of the sponsor.
The definition of “spouse” is set out in s 5F of the Act and the definition of “de facto” partner is set out in s 5CB of the Act. Common to both the definitions of “spouse” and “de facto partner” are the requirements that the applicant and the sponsor:
(a)have a mutual commitment to a shared life to the exclusion of all others;
(b)be in a relationship that is genuine and continuing; and
(c)live together or do not live separately on a permanent basis
Further, both definitions state that the Regulations “may make provision in relation to the determination of whether one or more of [those] conditions [outlined above] exist”. For both a de facto and a spousal relationship, the Regulations do so at regs 1.09A and 1.15A respectively.
Regulations 1.09A(2) and 1.15A(2) state that, where the Minister is considering an application for a partner visa, “consideration must be given to all of the circumstances of the relationship, including the matters set out in subregulation (3)”.
The matters set out in subregulation (3) with respect to regs 1.09A and 1.15A of the Regulations include a list of 15 prescribed matters which are set out in four broader categories as follows:
(a)the financial aspects of the relationship;
(b)the nature of the household;
(c)the social aspects of the relationship; and
(d)the nature of the persons’ commitment to each other.
The Minister (and, by extension, the Tribunal) must therefore have regard to all 15 prescribed matters set out in the Regulations when considering if a de facto or spousal relationship exists at the time of application. At the time of decision, the Minister (or the Tribunal) need only be satisfied that that relationship continues to exist.
Amended Ground 1
As outlined above, at the hearing of the matter, the applicant did not press proposed amended ground 2. Hence, the sole ground of review in this matter is the proposed amended ground one which contains three particulars as follows:
Ground 1
The Second Respondent (Tribunal) made a jurisdictional error by failing to complete its statutory task due to its misunderstanding of reg 1.09 and reg 1.15A of the Migration Regulations 1994 (Cth) which required it to make findings on the matters set out in reg 1.09(3) and reg 1.15A(3).
Particulars
i. The Tribunal failed to make findings on:
a.the opinion of the Applicant’s and the sponsor’s friends and acquaintances about the nature of the relationship (reg 1.09(3)(c)(ii), reg 1.15A(3)(c)(ii)); and
b.the duration of the relationship (reg 1.09(3)(d)(i), reg 1.15A(3)(d)(i)); and
c.the length of time the Applicant and the sponsor have lived together (reg 1.09(3)(d)(ii), reg 1.15A(3)(d)(ii)).
Applicant’s submissions in relation to amended ground 1 as a whole
Mr Glenister made general submissions at the hearing broadly addressing amended ground one as a whole. He subsequently made submissions in relation to each particular.
In relation to the amended ground as a whole, Mr Glenister cited the decision of the Full Court in He v Minister for Immigration and Border Protection [2017] FCAFC 206 (“He”), referencing in particular [76] and [78] which provide:
76In our opinion, the requirement that the Tribunal “consider” the circumstances in reg 1.15A(3) means that the Tribunal is required to make findings upon each of the prescribed matters numbered with Roman numerals. The nature of these specific matters is such that each of them poses, in effect, a question or questions for the Tribunal. For example, in respect of “the nature of the household”, the Tribunal must ask:
(i)whether there are children and whether there is any joint responsibility for their care and support;
(ii)what the living arrangements of the persons are; and
(iii)whether and to what extent there is sharing of the responsibility for housework.
The regulation poses these questions in order to ensure that the Tribunal takes into account particular circumstances of the marriage as part of the active mental process involved in giving proper, genuine and realistic consideration to the prescribed matters. The legislative intention must be that these questions will be answered, not merely thought about. They must be answered so that the circumstances identified by the answers are included in the evaluation of whether there is a “married relationship”. In some cases, the Tribunal’s answer may be that there is no material, or insufficient material, to be able to form a conclusion on a prescribed matter: cf Paerau at [27], [69] and [119]. However, there must be an answer, or, in other words, a finding, even if the finding is that no conclusion can be reached upon the matter.
…
78The conclusions we have reached are a function of the way in which reg 1.15A has been drafted. The drafting style employed has both advantages and disadvantages. Whenever a legislator prescribes a long list of factors, each of which must be taken into account by a decision-maker in the course of reaching an inherently evaluative conclusion, the advantage will be that it ensures that a decision-maker cannot overlook a consideration which the legislature has intended must be taken into account. However, such a legal obligation necessarily turns each such factor, unless the decision-maker expressly refers to it (and, where findings are necessary, makes such findings explicitly) into a potential trigger for the assertion of jurisdictional error.
Mr Glenister submitted that the Tribunal has to do more than simply “think about each of the matters”. Rather, it needs to make a specific finding on each matter. Further, where the Tribunal does not detail its finding in its reasons, while this does not necessarily mean that it has not made that finding, an inference can sometimes be drawn that it did not do so. As will be discussed below, that (according to Me Glenister) is what occurred here.
Minister’s submissions in relation to amended ground 1 as a whole
Mr Macliver provided brief oral submissions in relation to amended ground 1 as a whole.
Mr Macliver submitted that the Tribunal need not consider and set out specific findings in relation to each of the 15 matters outlined in the Regulations.
In that regard, Mr Macliver also cited the decision of the Full Court in He, making specific reference to [80] of the judgment, which provided:
80The Tribunal’s reasons were not structured in a manner that formulaically addressed each of the relevant matters in turn, but they did not have to be: see Zhang at [20]. Further, as Charlesworth J said in Singh at [20], the impressionistic and evaluative nature of the Tribunal’s task must be taken into account when drawing implications from its reasons, and, further, such reasons are not to be construed minutely and finely with an eye attuned to the perception of error.
Mr Macliver also highlighted the following passages in He (emphasis added):
84.Regulation 1.15A(3)(b)(ii) requires the Tribunal to consider the persons’ living arrangements. This imports a requirement to consider their living arrangements throughout the marriage, so far as is revealed by the material before the Tribunal. The evidence of Ms He and Mr Xu was that they had cohabited throughout their marriage. The Tribunal considered that evidence. The Tribunal rejected Mr Xu’s explanation as to why, in his incoming passenger cards, he gave addresses other than the address of the nominated marital home. Further, the Tribunal found that the home visit revealed little evidence that Mr Xu lived there. The Tribunal said it was not prepared to find that Ms He and Mr Xu were credible witnesses. In view of these findings, the Tribunal rejected the appellants’ case that Ms He and Mr Xu had cohabited throughout their marriage.
85.It is true that the Tribunal set out no express finding as to whether Ms He and Mr Xu were cohabiting at the time of the decision. However, an inference is available from the Tribunal’s reasons read as a whole that the Tribunal did make such a finding upon this matter as part of its mental process in making its decision. As we have said, the Tribunal rejected the evidence of Ms He and Mr Xu that they had cohabited throughout their marriage. The appellants advanced no case that Ms He and Mr Xu had lived together for a time, and then separated for a time, but had resumed living together by the time of the hearing before the Tribunal. The Tribunal was not required to speculate about that prospect. The Tribunal was not satisfied that there was ever a genuine and continuing marital relationship. The Tribunal must be understood to have found that it was not satisfied that they had lived together at any time. The Tribunal did consider Ms He’s and Mr Xu’s living arrangements as at the date of its decision as was required under reg 1.15A(3)(b)(ii).
Mr Macliver again stressed that the Tribunal’s reasons for decision should be looked at as a whole and emphasised that there is no need for specific findings to be made in relation to any of the individual matters detailed in the Regulations.
Particular 1
By particular 1 of amended ground 1, the applicant claims that no finding was made in relation to the opinion of the applicant’s and the sponsor’s friends and acquaintances about the nature of the relationship (as required by regs 1.09A(3)(c)(ii) and 1.15A(3)(c)(ii) of the Regulations).
Applicant’s submissions
Mr Glenister drew the Court’s attention to two Form 888 statutory declarations (at CB 87-88 and CB 89-90) (as evidence which was before the Tribunal provided by the applicant’s and the sponsor’s friends or acquaintances).
The two Form 888 statutory declarations in this matter provide as follows:
Statutory declaration of Dr [omitted] (CB 87-88)
In response to question 3:
State how you know the applicant and the applicant’s partner or fiancé(e), and indicate how often you have been in contact with them:
•Once biweekly over past 10 months contact.
•I have known [sponsor] since 2014. He was my work colleague at Bunbury Hospital in WA.
•I met [applicant] last year during a social gathering. She was introduced to me by [sponsor] as his partner.
In response to question 4:
State whether you believe the relationship of the applicant and his/her partner or fiancé(e) to be genuine and continuing, and give your reasons for your belief:
Yes I believe the relationship is genuine and continuing.
Reasons:
(1) They are co-habitating
(2) Photographic evidence on social media
(3) Their interaction appeared genuine as a couple
(4)Witnessed electronic communication between [sponsor] and his partner seemed genuine
Statutory declaration of [omitted] (CB 89-90)
In response to question 3:
State how you know the applicant and the applicant’s partner or fiancé(e), and indicate how often you have been in contact with them:
I have known [applicant] when she first came to Australia. We met in a friend’s house party and since then we have remained good friends. We used to stay in the same suburb Bentley and see each other on a regular basis E.g. shopping / going out for meals.
She introduced her partner to me around 2 years ago and I have known him ever since then. We meet up at least once a month and sometimes more often or less depending on work.
In response to question 4:
State whether you believe the relationship of the applicant and his/her partner or fiancé(e) to be genuine and continuing, and give your reasons for your belief:
I believe their relationship to be genuine and continuing based on our social interaction and personal observations:
- They have been living together. I have been to their apartment a lot of times.
- We meet up regularly and they interact as a couple
- They have known each other for more than 2 years
- They have travelled together on several occasions
Mr Glenister took the Court through the contents of the statutory declarations, noting specifically that both witnesses believe that the applicant and the sponsor were in a genuine and continuing relationship and stressing that the reasons provided by the witnesses are not identical – rather, they are (in Mr Glenister’s submission) “separate and distinct”.
When asked, Mr Glenister noted that the Tribunal had made reference to the opinion of friends and acquaintances at [48] in its reasons.
For completeness, it is useful to set out [48] of the Tribunal’s reasons which states:
48.The Tribunal considered social aspects of the relationship - including whether parties represent themselves to other people as being married to each other; the opinion of friends and acquaintances about the nature of the relationship; and any basis on which the persons plan and undertake joint social activities.
In Mr Glenister’s submission, [48] represents no more than a reiteration of each of the specific matters which ordinarily falls under the more general consideration. Further, in Mr Glenister’s submission, what was said by the Tribunal in this regard is “really more than an introductory paragraph and does not refer to any opinion, mention what the opinion was or whose opinion the Tribunal was taking into account” (transcript at page 7, [25]).
Mr Glenister submitted that “no further mention of those aspects can be found in the balance of the Tribunal’s reasons” other than a statement at [54] of the Tribunal’s reasons which provides (emphasis added):
54.With little evidence from other parties as to how they represent their relationship to others, and with consideration that the sponsors family remain unaware of the relationship, marriage and co-habitation of their son with the visa applicant, the Tribunal places little weight on the social aspects of the relationship.
Mr Glenister noted that the Tribunal here does not refer to any of the information contained within two Form 888 statutory declarations and did not make any specific findings about that material. He stressed that it is, contextually, unclear whether the Tribunal has had any reference to the evidence provided in those declarations and that, as such, whether the Tribunal has assessed all of the matters it is required to assess.
Mr Glenister noted that the statutory declarations were also not listed in the extensive list of evidence provided by the Tribunal at [10] of its reasons and, whilst he conceded that the list was prefaced by a statement indicating it included material which was not before the delegate, where the Tribunal has been so forensic in detailing almost all of the other evidence before it, one could expect that the Form 888 documents would also be listed.
Finally, Mr Glenister drew the Court’s attention to the Minister’s written submissions which suggested that the dated nature of the statutory declarations (being declared in 2017 and 2018 respectively) may have meant that the Tribunal did not give them much weight or take them into account. Mr Glenister rejected that argument, arguing that the Form 888 documents are very relevant to (at least) the question of whether the applicant and the sponsor were in a relationship at the time of the application.
Minister’s submissions
In response to particular 1, Mr Macliver submitted that the list of documents the Tribunal refers to at [10] of the Tribunal’s reasons relates only to material not before the delegate. This is additional evidence the parties provided – as such, the statutory declarations are not listed because they were before the delegate and were not, thus, new material.
Mr Macliver further submitted that the age of the statutory declarations in question should be taken into consideration. This is because the documents were dated 15 May 2017 and 21 October 2018, whilst the Tribunal made its decision in October 2020 (that is, three and a half years after the date of the first statutory declaration was made and more than two years after the second was made). Mr Macliver submitted that the evidence about the relationship from third parties was of “considerable age” and that is why the Tribunal only makes a minor reference to a lack of evidence from other parties at [54] of its reasons.
Mr Macliver stressed that, in circumstances where there was no other evidence submitted from other parties, the Form 888 documents were the only evidence from other parties about the relationship and, given they were of considerable age, were referenced as “little evidence from other parties” (at [54]).
In the alternative, Mr Macliver submitted that, in context, the Tribunal, at [54], may also have been referencing the fact that no third party witnesses were offered to give oral evidence at either of the Tribunal hearings.
Finally, Mr Macliver referenced the Tribunal’s decision at [48] where the Tribunal, in Mr Macliver’s submission, specifically mentions having considered “the opinion of friends and acquaintances about the nature of the relationship”. On that basis, Mr Macliver submitted, there is no basis to conclude that the Tribunal did not have regard to the two statutory declarations.
Consideration
As noted by both counsel in this matter, the Full Court of the Federal Court in He details what the Tribunal is required to do in matters such as this. The relevant principles are summarised by Justice White in Nguyen v Minister for Immigration & Border Protection [2018] FCA 1374 at [46] (“Nguyen”), as follows:
46.As the decision of the Full Court in He v Minister for Immigration and Border Protection [2017] FCAFC 206; (2017) 255 FCR 41 provided the foundation for the appellant’s submissions on this ground, it is convenient to refer first to that judgment. In that case, the Full Court (Siopis, Kerr and Rangiah JJ) considered the effect of s 5F of the Act and of reg 1.15A of the Regulations. Their Honours concluded:
(a)the matters set out in reg 1.15A(3) are relevant considerations which the decision‑maker is bound to consider, at [52];
(b)this requires the decision‑maker to bring an active intellectual process to each matter, giving proper, genuine and realistic consideration to each, at [52];
(c)the requirement that the Tribunal “consider” the circumstances in reg 1.15A(3) means that the Tribunal is required to make findings upon each of the prescribed matters numbered with Roman numerals. The legislative intention is that the enumerated matters must be addressed, and not merely thought about, at [76]‑[77]. However, it is not necessary for the Tribunal to address each of the enumerated matters in a formulaic manner. Nor is it necessary that it make findings upon every piece of evidence bearing upon an enumerated matter. Nevertheless, the Tribunal is required to make findings upon the matters enumerated in reg 1.15A(3), at [82]‑[83]; and
(d)the failure by the Tribunal set out in its reasons a finding concerning any of the enumerated matters may (but will not necessarily) lead to an inference that the Tribunal member made no such finding as part of his or her mental process in arriving at the decision, at [79].
Justice White continues:
60.…it is not necessary for the Tribunal to refer to every item of evidence bearing on a matter. The very fact that the Tribunal member chose to use the four topics mentioned in subreg (3) as the headings for sections of her reasons, tends to suggest the Tribunal has had regard, at least to some extent, to those matters.
61.The difficulty, however, lies with the level of abstraction with which the Tribunal has addressed each topic. When the Tribunal refers at a high level of generality to one of the requisite matters, it may be said that the Tribunal has “considered” that matter. However, reg 1.15A requires more than a generalised consideration, as the concluding words of reg 1.15A(2) indicate. They oblige the Minister (and the Tribunal when standing in his shoes) to consider “all of the circumstances” of the relationship “including” those set out in subreg (3). The requirement that the Tribunal consider all of the circumstances is inconsistent with a requirement that the subreg (3) matters be considered merely as abstract topics. Further, as the Full Court noted in He, the obligation to “consider” requires the decision maker to bring an active intellectual process to each matter: Tickner v Chapman (1995) 57 FCR 451 at 462, 464 and 495 6; Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107, (2017) 252 FCR 352 at [36] [45]; Bondelmonte v Bondelmonte [2017] HCA 8, (2017) 259 CLR 662 at [43].
62.In the present case, there is so much material to which the Tribunal member did not refer, or about which the Tribunal member did not make findings, that it cannot be concluded that the Tribunal brought “an active intellectual process” to its consideration of the reg 1.15A(3) matters, in the manner in which the Full Court decision in He indicates is required.
The Court acknowledges that the Tribunal’s reasons should not be read with an eye attuned to error and that the reasons provided should be read as a whole. It is also recognises that the Tribunal is not required to make an express finding on each of “the matters” in circumstances where it can be demonstrated (or is seen to be implicit from the Tribunal’s decision as a whole) that findings were made in respect of those matters: He at [80]-[87].
Here, as was the case in Nguyen, material appears to be referred to by the Tribunal with a “high level of abstraction”. The Tribunal states simply (at [54]) that there is “little evidence from other parties as to how they represent their relationship to others”. While, hypothetically, this might be a reference to the statutory declarations, what is actually said by the Tribunal fails to demonstrate any active intellectual engagement with the evidence as a whole and, as such, amounts to a failure to actively engage with one of the matters the Tribunal must assess: that is, the opinion of friends and acquaintances about the nature of the relationship (as required by regs 1.09A(3)(c)(ii) and 1.15A(3)(c)(ii) of the Regulations).
Context matters. As does content. For ease of reference, the two Form 888 declarations before the Tribunal provide the following evidence:
Statutory declaration of Dr [omitted] (CB 87-88)
In response to question 3:
State how you know the applicant and the applicant’s partner or fiancé(e), and indicate how often you have been in contact with them:
•Once biweekly over past 10 months contact.
•I have known [sponsor] since 2014. He was my work colleague at Bunbury Hospital in WA.
•I met [applicant] last year during a social gathering. She was introduced to me by [sponsor] as his partner.
In response to question 4:
State whether you believe the relationship of the applicant and his/her partner or fiancé(e) to be genuine and continuing, and give your reasons for your belief:
Yes I believe the relationship is genuine and continuing.
Reasons:
(1) They are co-habitating
(2) Photographic evidence on social media
(3) Their interaction appeared genuine as a couple
(4)Witnessed electronic communication between [sponsor] and his partner seemed genuine
Statutory declaration of [omitted] (CB 89-90)
In response to question 3:
State how you know the applicant and the applicant’s partner or fiancé(e), and indicate how often you have been in contact with them:
I have known [applicant] when she first came to Australia. We met in a friend’s house party and since then we have remained good friends. We used to stay in the same suburb Bentley and see each other on a regular basis E.g. shopping / going out for meals.
She introduced her partner to me around 2 years ago and I have known him ever since then. We meet up at least once a month and sometimes more often or less depending on work.
In response to question 4:
State whether you believe the relationship of the applicant and his/her partner or fiancé(e) to be genuine and continuing, and give your reasons for your belief:
I believe their relationship to be genuine and continuing based on our social interaction and personal observations:
- They have been living together. I have been to their apartment a lot of times.
- We meet up regularly and they interact as a couple
- They have known each other for more than 2 years
- They have travelled together on several occasions
It cannot be said here with any degree of certainly that the Tribunal’s statement (at [54]) that there is “little evidence from other parties as to how they represent their relationship to others” is a reference to the Form 888 Declarations. The declarations in question, while not lengthy, are detailed and do, arguably, address a matter of importance. If the Tribunal rejected that evidence, that is its right. But it needs to say why. Here, without more, the applicant (and, indeed, this Court) is “left wondering” whether evidence which, she says, supports her argument, was looked at and, if so, why it was ultimately rejected or cast aside. Jurisprudentially, the applicant deserves more. Contextually, the Tribunal’s “reasoning” requires the applicant to rely on hypotheticals that ultimately leave her guessing about why she was not successful.
The Court is not satisfied that the Court has addressed the evidence included in the Form 888 statutory declarations and, as such, cannot state unequivocally that the Tribunal has assessed the opinion friends and acquaintances about the nature of the relationship (as required by regs 1.09A(3)(c)(ii) and 1.15A(3)(c)(ii) of the Regulations).
The Tribunal has failed in relation to its statutory task and has fallen into error.
Materiality
An error will only be a “jurisdictional error” where it is material or where the error in question would have realistically deprived the applicant of the opportunity of a successful outcome: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3 (“SZMTA”); MZAPC v Minister for Immigration and Border Protection [2021] HCA 17 (“MZAPC”).
MZAPC confirmed that, as set out in SZMTA, the “existence or non-existence of a realistic possibility that the decision could have been different” is a “question of fact”. Further, the applicant in a matter of this sort (being a judicial review application) “bears the onus of proof” in that regard: MZAPC at [2]-[3].
The question for the Court in this matter is whether, if the Tribunal had made findings in relation to the opinions of the applicant’s and the sponsor’s friends or acquaintances (as required by the Regulations) and ultimately considered that those opinions weighed in favour of the existence of a relationship between the applicant and the sponsor, was there a “realistic possibility” that the Tribunal’s decision would have been different?
Applicant’s submissions
Mr Glenister accepted that some of the findings made by the Tribunal tended to go against the applicant and that, whilst not expressly stated, it was fairly clear that the Tribunal had concluded that the applicant and sponsor were in a “sham relationship”.
However, Mr Glenister noted that, towards the end of its decision, specifically at [63] of the Tribunal’s reasons, the Tribunal found that the sponsor was a genuine witness and that he genuinely thought that the relationship he was in was a genuine spousal relationship. On the other hand, the Tribunal had issues with the applicant’s credibility and discrepancies in her evidence and, on that basis, rejected some of the evidence that she provided.
In Mr Glenister’s submission, none of the reasons given by the Tribunal can be said to be standalone reasons as to why the application should fail. While there were considerations that went against the applicant, there was also evidence that was in her favour. Read as whole, Mr Glenister submitted, it is impossible to determine the point at which the Tribunal determined that the applicant and the sponsor were not in a genuine relationship and it cannot be ruled out that, with required scrutiny of further evidence (here, the statutory declarations), the Tribunal might, ultimately, have concluded that there was indeed a genuine relationship.
Mr Glenister noted that, whilst unclear at what point that change in conclusion might have happened in the mind of the Tribunal, in the case of materiality the applicant only has to establish that there is a realistic possibility that some or all of the considerations that the applicant alleges the Tribunal failed to assess could have taken the Tribunal down a different path.
Minister’s submissions
Mr Macliver agreed with Mr Glenister that is not an easy task for the Court to determine whether an error of the sort seen here is or is not “material”. However, reading the decision as a whole (as per the decision in PQSM v Minister for Home Affairs [2020] FCAFC 125), in Mr Macliver’s submission, it would be very difficult for the Court to conclude that the error here was material because, even of the evidence had been properly assessed, that particular Tribunal would not have come to a different decision.
Consideration
The majority in SZMTA stated that:
48.The court must be careful not to intrude into the fact-finding function of the Tribunal. Yet the court must be alive to the potential for a document or information, objectively evaluated, to have been of such marginal significance to the issues which arose in the review that the Tribunal's failure to take it into account could not realistically have affected the result.
As outlined above (and as submitted by counsel for the applicant), the onus of proof with respect to materiality falls with the applicant. However, as counsel for the applicant rightly points out, there need only be a “realistic possibility” that the outcome could have been different.
In this matter, having reviewed the Tribunal’s decision as a whole, it cannot be said that the Tribunal’s failure to make findings in relation to the opinion of the applicant’s and the sponsor’s friends could not have made a difference to the outcome.
As submitted by the applicant, this is not a case where the Tribunal made no findings in favour of the applicant. Hence, it cannot be said that the evidence of third parties could not have “tipped the scale” in favour of a finding that the applicant and sponsor were in a genuine relationship.
In circumstances such as those seen here, where there is a “possibility” that the assessment of evidence of third parties could have impacted on the Tribunal’s findings in that regard, the failure to assess that evidence is material. Where an error is material, it is a jurisdictional error.
Conclusion
The Tribunal failed to make findings in relation to the two Form 888 statutory declaration documents containing the opinion of friends and acquaintances about the nature of the relationship. It cannot be said, in that context, that the Tribunal has properly assessed all of the matters it is required to assess in determining the nature of the relationship between the applicant and her sponsor. The Court also finds that, had the Tribunal assessed that evidence and made findings, it could realistically have resulted in a different outcome. The failure to do so is thus material and the Tribunal has, accordingly, fallen into jurisdictional error by failing in relation to its statutory task.
Particulars 2 and 3
In circumstances where the Court has found error with particular 1 of amended ground 1, and where that error is found to be material (and thus jurisdictional), the Court does not consider it necessary to consider the further particulars of amended ground 1.
Other
Having reviewed the factual background to this matter, the Court determined that it was appropriate to assign a pseudonym to the applicant and to issue a new court file number. The Court has done so with the consent of the parties.
CONCLUSION
The applicant’s amended ground of review (as outlined in written submissions filed by the applicant on 4 October 2021) has identified jurisdictional error.
The Tribunal’s decision will be set aside and the matter will be remitted for rehearing.
I certify that the preceding one hundred and thirty-six (136) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 19 January 2022
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