AJX19 v Minister for Home Affairs

[2019] FCCA 550

FEDERAL CIRCUIT COURT OF AUSTRALIA

AJX19 v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 550

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a partner visa – Tribunal finding that the applicant was not the “spouse” of his sponsor for the purposes of the visa criteria – whether the Tribunal provided a fair hearing opportunity considered – whether factual errors made by the Tribunal impacted on the decision considered – no jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), ss.5F, 65, 359AA, 360

Cases cited:

Minister for Immigration v Sabharwal [2018] FCAFC 160

Minister for Immigration v SZJSS (2010) 243 CLR 164

Minister for Immigration v SZUXN (2016) 69 AAR 210

Minister for Immigration v SZMDS (2010) 240 CLR 611

Selvadurai v Minister for Immigration (1994) 34 ALD 347

SZBEL v Minister for Immigration (2006) 228 CLR 152

Applicant: AJX19

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 510 of 2018

Judgment of: Judge Driver

Hearing date: 6 March 2019

Date of Last Submission: 15 April 2019

Delivered at: Sydney

Delivered on: 10 May 2019

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondents: Mr N Swan

Solicitors for the Respondents: Mills Oakley

ORDERS

1. The application as amended on 8 August 2018 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 510 of 2018

AJX19

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

1. The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 23 January 2018.  The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a temporary partner visa.  In these proceedings, the applicant has been allocated a pseudonym because he had previously made a protection visa application.  That protection visa application was an issue in the review before the Tribunal.

2. Background facts relating to this matter are otherwise set out in initial written submissions filed on behalf of the Minister on 17 July 2018. 

3. The applicant is a citizen of Tunisia born in October 1984.[1] He first arrived in Australia in October 2011.[2]  On 1 September 2014, he married the visa sponsor (the sponsor).[3]  On 16 July 2015, he applied for the visa.[4]

   [1] Court Book (CB) 2

   [2] CB 143

   [3] CB 12

   [4] CB 1-30; 31-40

4. In order to be granted the visa, the applicant had to meet a range of criteria.[5] Relevantly, this included clauses 820.211(2) and 820.221 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations). Clause 820.211(2)(a) of Schedule 2 to the Regulations provided that: [6]

   [5] Migration Act 1958 (Cth) (Migration Act), s.65(1)(a)(ii)

   [6] clause 820.221 required that “the applicant … continues to meet the requirements of the applicable subclause” at the time of decision

   (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 …

5. The term “spouse” is defined in s.5F of the Migration Act, which provides:

   (1) For the purposes of this Act, a person is the spouse of another person if, under subsection (2), the 2 persons are in a married relationship.

   (2) For the purposes of subsection (1), persons are in a married relationship if:

   (a) they are married to each other under a marriage that is valid for the purposes of this Act; and

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

   (c) the relationship between them is genuine and continuing; and

   (d) they:

   (i)      live together; or

   (ii)     do not live separately and apart on a permanent basis.

6. In assessing the matters in s.5F(2)(a)-(d), the decision maker must consider the matters set out in regulation 1.15A(3) of the Regulations.[7]

   [7] see s.5F(3) and regulation 1.15A(2)

7. On 10 November 2016, the delegate refused to grant the visa.[8]  On 18 November 2016, the applicant sought review by the Tribunal of the delegate’s decision.[9]  On 23 January 2018, the Tribunal affirmed the delegate’s decision.

   [8] CB 140-169

   [9] CB 170-171

The Tribunal’s decision

1. The Tribunal identified the issue on its review as being “whether the [applicant] is the spouse of [the sponsor] pursuant to s.5F of the Act”.[10] It referred to the evidence given to the Tribunal by the applicant and sponsor,[11] and also explained that it had put to the applicant, pursuant to s.359AA of the Migration Act, two conclusions (about his credibility) reached by the Refugee Review Tribunal (RRT) on review of a protection visa application the applicant had previously made.[12]

   [10] CB 234 [7]

   [11] CB 234-235 [7]-[14]

   [12] CB 235 [11]

2. The Tribunal set out the definition of spouse (contained in s.5F of the Migration Act) and observed that, in determining whether that definition was satisfied, it was required to have regard to all the circumstances of the relationship, including the matters identified in regulation 1.15A(3).[13]

   [13] CB 236 [16]

3. The Tribunal accepted that the applicant and sponsor were validly married and thus satisfied s.5F(2)(a) of the Migration Act.[14]  It then considered the other circumstances of their relationship, by reference to the matters identified in regulation 1.15A(3)(a)-(d).[15]

   [14] CB 236 [17]

   [15] CB 236 [18]-[36]

4. The Tribunal accepted, despite the limited information provided to it, that the “financial aspects” of the applicant’s and sponsor’s relationship provided some evidence of there being a spousal relationship.[16].  It observed that there was no evidence that the applicant and sponsor had joint assets, and that the only evidence showing joint liabilities was a rental agreement (but the evidence did not disclose if the sponsor contributed to rental payments).[17]  The Tribunal also referred to there being evidence of two joint bank accounts, and noted that it was not clear, on the evidence before it, whether the sponsor contributed to the day-to-day household expenses.[18]

   [16] cf. regulation 1.15A(3)(a); CB 237 [22]

   [17] CB 236 [18]-[19]

   [18] CB 236-237 [21])

5. The Tribunal accepted that the evidence as to the “nature of the household” was indicative of there being a spousal relationship.[19]  It referred to evidence that the applicant lived in rented accommodation with the sponsor and her three daughters (from a prior marriage), that the sponsor was a full time homemaker, and also that one daughter had given evidence that the parties maintained a household together.[20]

   [19] cf. regulation 1.15A(3)(b)

   [20] CB 237 [23]

6. In relation to the “social aspects of the relationship”,[21] the Tribunal noted that there was evidence showing the applicant and sponsor spending leisure time together, but expressed its concern that there was no evidence (statements or photographs) supporting the applicant’s and sponsor’s claim that their wider family accepted their relationship.[22]  The Tribunal did accept that there was some photographic evidence of a social relationship between the sponsor’s immediate family and the applicant, and also evidence that the applicant and sponsor undertook activities with the sponsor’s children. It also noted that there were statutory declarations from friends as to their relationship, but noted that these were from 2015.[23] The Tribunal indicated that it expected that the applicant and sponsor would have provided significantly more evidence to it establishing the social aspects of their relationship, including evidence more contemporaneous with the time of the Tribunal’s decision. The Tribunal was thus not satisfied, from the “overall evidence” before it, that the “social aspect” of their relationship was indicative of the parties being in a spousal relationship.[24]

   [21] cf. regulation 1.15A(3)(c)

   [22] CB 237 [24]

   [23] CB 237 [25]

   [24] CB 237-238 [26]

7. In relation to the “nature of the persons’ commitment to each other”,[25] the Tribunal considered that the circumstances in which the relationship was alleged to have commenced were “implausible”.[26]  It also considered that the applicant’s past behaviour in relation to his migration status in Australia was indicative of a desire to secure a permanent migration outcome using whatever means were necessary, and that the applicant had deliberately delayed filing his application for the visa in the present case so as to establish “compelling circumstances” for the decision maker not to apply certain visa criteria (which he could not otherwise meet).[27]  It further considered that the bank statement provided by the parties (in support of their claim to be in a spousal relationship) was “suspicious”, because the account had no balance until a “random” (unexplained) deposit was made proximate to the Tribunal’s hearing.[28]  The Tribunal considered that these matters were not indicative of there being a spousal relationship.[29]

   [25] regulation 1.15A(3)(d)

   [26] CB 238 [30]; 239 [36]

   [27] CB 238-239 [32]-[33]; [36]

   [28] CB 239 [35]

   [29] CB 239 [36]

8. The Tribunal stated that it had considered the matters required by regulation 1.15A(3)(a)-(d), and the “full circumstances of the relationship”, and found that the parties did not have a mutual commitment to a shared life to the exclusion of others. The Tribunal was not satisfied that the applicant and sponsor met the definition of spouse in s.5F of the Migration Act and thus was not satisfied that the applicant met clause 820.211(2)(a) or clause 820.221.[30]  It therefore affirmed the delegate’s decision.

   [30] CB 240 [40]-[42]

The present proceedings

1. These proceedings began with a show cause application lodged on 21 February 2018.  The applicant now relies upon an amended application filed on 8 August 2018.  There are 13 grounds in that application as amended:

   The Tribunal fell into jurisdictional error in arriving at its decision on 23 January 2018 in, inter alia:

   1.Finding that the applicant was not truthful, lacked credibility and/or was an unreliable witness without sufficient evidence to make such finding and/or against the weight of the evidence;

   2.Finding that the applicant was not genuinely committed to a genuine spousal relationship with the sponsoring spouse without sufficient evidence to make such finding and/or against the weight of the evidence;

   3.Failing to properly consider as a relevant consideration the evidence of the sponsoring spouse's feelings of commitment to a genuine spousal relationship with the applicant;

   4.Failing to properly take into account as a relevant consideration the financial hardship that would be caused to the sponsoring spouse and her family if the applicant, as the sole breadwinner, was forced to leave, and failing to consider this relevant consideration a compelling reason for the non-application of Schedule 3 criteria referred to in regulation 820.211 of the Migration Regulations 1994 (Cth);

   5.Failing to give proper weight to relevant evidence indicating a genuine spousal relationship between the applicant and sponsoring spouse, in particular the evidence of the sponsoring spouse's teenage daughters that the applicant behaved like their father, picking them up from school and taking them to sport and activities, he and their mother sleeping in the same room, his payment of bills, he being a good man, and they being able to obtain larger housing accommodation since their mother's remarriage to the applicant;

   6.Failing to find that the social aspects of the relationship between the applicant and sponsoring spouse are indicative of a spousal relationship against the weight of evidence, or failing to give proper weight to relevant considerations, in particular, evidence indicating that the social aspects of the relationship between the applicant and sponsoring spouse are indicative of a genuine spousal relationship;

   7.Failing to give proper weight to relevant evidence, namely statutory declarations from friends dating to 2015 speaking of the genuineness of the relationship between the applicant and sponsoring spouse at that time (3 years ago) and shared social activities at that time, and current photographic evidence indicating a continuing shared social relationship between the applicant and sponsoring spouse presently;

   8.Failing to give proper or sufficient weight to relevant considerations, in particular evidence that the applicant and sponsoring spouse and step children all resided together at …, Condell Park, included but not limited to joint tenancy agreement and joint payment of rent, and in so doing failing to find, despite the weight of the evidence, that such evidence tended to indicate cohabitation between the applicant and sponsoring spouse;

   9.Finding that the manner in which the spousal relationship was initiated was implausible without sufficient evidence to make such finding and/or against the weight of the evidence;

   10. Taking into account an irrelevant consideration, namely the imputed implausibility of the manner in which the relationship was initiated, in reaching its decision;

   11.Taking into account an irrelevant consideration namely an asserted finding by the RRT of the applicant's untruthfulness and concomitant poor credibility in relation to his protection visa application before the RRT, and erroneously considering this a relevant consideration in relation to the proceedings before the AA T with respect to his spousal visa application;

   12.Finding that the delay between first meeting of the applicant and the sponsoring spouse and their subsequent marriage was a deliberate and intentional act by the applicant "to diminish the impact of his failure to satisfy the Schedule 3 criteria" without sufficient evidence to make such finding and/or against the weight of the evidence;

   13.Erroneously taking into account an irrelevant consideration, namely the applicant's desire to remain in Australia, as a factor militating against a finding that a genuine spousal relationship existed, against the preponderance of the evidence.

2. The matter came before me twice for a show cause hearing on 24 July 2018 and again on 4 February 2019.  The reason for the adjournment was to permit the applicant to file an amended application, which he did.  The Minister’s counsel complained at the resumed hearing that he had received insufficient notice of the submissions in support of the amended application, although the amended application had been filed seven months previously.  It was in any event apparent that an issue arose concerning apparent factual errors made by the Tribunal in its decision.  Further, I noticed that the decision of the Tribunal was on a different basis to the decision of the delegate.  This raised a question in my mind whether the applicant had been put on notice of the dispositive issues before the Tribunal.  I also noted that the applicant had lost legal representation between the initial and resumed show cause hearings.  The applicant’s former counsel had prepared written submissions on 31 January 2019 which were lodged in the registry on 1 February 2019 but were not filed until 6 February 2019.  I had those submissions before me at the resumed show cause hearing on 4 February 2019 but the applicant was not in apposition to address them orally and counsel for the Minister had had very limited time to consider them.

3. At that time, I made a show cause order in the following terms:

   Pursuant to rule 44.12(1)(b) of the Federal Circuit Court Rules 2001 (Cth), Minister is to show cause why relief should not be granted to the applicant in relation to the question of whether the Administrative Appeals Tribunal complied with its obligation under s.360 of the Migration Act 1958 (Cth) to afford a fair hearing to the applicant, with particular reference to the principle in SZBEL v Minister for Immigration (2006) 228 CLR 152.

4. I also called for further written submissions and a transcript of the Tribunal hearing.

5. At the trial of this matter on 6 March 2019, I received into evidence the court book filed on 24 April 2018 and the affidavit of Mr Parthakumar Jeyakkumar made on 20 February 2019, to which is annexed a transcript of the Tribunal hearing conducted on 2 November 2017.  I also received the applicant’s affidavit made on 6 August 2018 and filed with his amended show cause application.

6. Both the applicant and the Minister provided pre-hearing submissions in writing and made oral submissions at the trial.  I gave the parties the opportunity to file further post-hearing submissions, limited to the question of whether the Tribunal made factual errors in examining the applicant’s migration history, and, if so, the legal significance of those errors.  The Minister took up that opportunity on 20 March 2019.  The Minister also filed an affidavit by Olivia Scully made on 20 March 2019 which I received.  The affidavit details the applicant’s migration status at various times.

7. On 12 February 2019 the applicant emailed (by two emails) to my chambers a bundle of photographs, computer screenshots, bank statements and other documents, which appeared to be intended to go to the merits of his visa claims, or perhaps to address disputed factual issues.  I gave the applicant the opportunity to file submissions in reply to the Minister’s post hearing submissions by 3 April 2019.  On 15 April 2019 the applicant emailed to my chambers a bundle of the same or very similar documents, none of which assisted in resolving the legal issues.

Consideration

Did the Tribunal comply with its obligations under s.360?

1. I am satisfied that there was no breach of the Tribunal’s fair hearing obligations under s.360 in this case. First, although the delegate’s decision was made on a different basis to that of the Tribunal, it is apparent from the delegate’s decision that the applicant was put on notice that the genuineness of the spousal relationship would be an issue in any review.[31]

   [31] CB 146

2. Further, the applicant, through his representative, made extensive submissions to the Tribunal concerning the nature of the spousal relationship that was plainly directed to that issue.  Thirdly, the issue of whether the relationship between the applicant and his wife is a genuine spousal relationship was explained at length at the Tribunal hearing.  This issue is discussed in more detail below, consistently with the Minister’s submissions on the issue.

3. Section 360(1) of the Migration Act provides that “the Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review”. As held in SZBEL v Minister for Immigration:[32]

   The Act defines the nature of the opportunity to be heard that is to be given to an Applicant for review by the Tribunal. The applicant is to be invited “to give evidence and present arguments relating to the issues arising in relation to the decision under review”…

   (emphasis in original)

   [32] (2006) 228 CLR 152 at [33]

4. The High Court then also added that the reference to those emphasised words “is important”. The “issues arising in relation to the decision under review” are to be identified by the Tribunal.  The Tribunal is not confined to whatever the determinative issues were before the delegate, and it is entitled to identify additional issues as arising on the review.[33]

   [33] SZBEL at [33]-[36]

5. In this case, as I observed at the show cause hearing, the delegate and the Tribunal refused to grant the applicant the visa, in reliance on different criteria. The delegate refused to grant the visa because the delegate was not satisfied that the applicant met clause 820.211(2)(d)(ii) of Schedule 2 to the Regulations. That was because:[34]

   a)the applicant did not (at the time of his application) hold a substantive visa;

   b)the applicant did not satisfy criterion 3001 (see Schedule 3 to the Regulations); and

   c)the delegate was not satisfied that there were “compelling reasons” not to apply criterion 3001.

   [34] see CB 143-146

1. The Tribunal affirmed the delegate’s refusal decision because the Tribunal was not satisfied that the applicant met clause 820.211(2)(a) and 820.221. That was because the Tribunal was not satisfied that the applicant was in a spousal relationship with the sponsor (as defined in s.5F of the Migration Act).[35] Despite the Tribunal refusing to grant the visa by reference to a different criterion than the delegate, no breach of s.360(1) is established.

   [35] CB 239 [36]; 240 [41]-[42]

2. It is apparent, from the transcript of the Tribunal’s hearing, that the applicant was put on notice that an issue arising in relation to the Tribunal’s review, of which the applicant would need to satisfy the Tribunal, was whether the applicant and the sponsor satisfied the definition of “spouse” in s.5F of the Migration Act and thus whether the applicant satisfied clause 820.211(2)(a) and 820.221. For example:

   a)the Tribunal explained to the applicant that its review was “your last opportunity to prove that you do meet the requirements of the migration law”. It then explained that there were “two parts to a partner visa in your particular circumstances”;[36]

   b)shortly after,[37] the Tribunal stated that one such part was the “relationship part”, and that the applicant had “to meet the definition of spouse”.  The Tribunal then explained that “what we have to do is prove that you are spouses, right”;[38]

   c)the Tribunal indicated its acceptance that the applicant and spouse were married.[39] The Tribunal then explained that “the second bit” is “actually proving that you meet the definition…that’s in section 5F of the Migration Act”. The Tribunal then explained, in detail, what the definition of spouse[40] required;[41]

   d)the Tribunal explained that, in determining whether the applicant satisfied the definition of spouse, it was required to consider “the full circumstances” of the relationship and all of the matters in regulation 1.15A.[42]  The Tribunal further explained, in detail, the particular matters (arising under regulation 1.15A(3)) that it would consider in assessing whether the applicant and sponsor were spouses.[43]  The Tribunal also stated that it was assessing whether there was a “mutual commitment” between the applicant and sponsor;[44]

   e)the Tribunal re-iterated the necessity for the applicant to satisfy the definition of spouse, stating “got to get all that – you’ve got to meet all that, satisfy me about all of that”;[45]

   f)the Tribunal stated that it was looking “to be sure that the relationship between the two of you is genuine and continuing…that I could be convinced that you, together, have a mutual commitment to a shared life”;[46] and

   g)the Tribunal indicated to the applicant that it was uncertain, and concerned, as to whether the applicant was genuinely committed to the sponsor.[47]

   [36] at transcript 3.44-4.5

   [37] at transcript 6.35-40

   [38] at transcript 7.27-28

   [39] transcript 7.33-35

   [40] as contained in s.5F of the Migration Act

   [41] see transcript 7.39-8.25

   [42] transcript 8.16-20

   [43] see eg. transcript 8.39-41 and transcript 9.7-28 (financial aspects); transcript 9.1-3 (social aspects); transcript 9.32-37 (nature of the relationship)

   [44] at transcript 9.41

   [45] transcript 10.5-6

   [46] at transcript 17.38-42

   [47] at transcript 32.25-39 (towards the end of the hearing)

3. The Tribunal also squarely raised with the applicant the concerns that it held about the applicant’s credibility and reliability as a witness, owing to findings that had previously been made by the RRT in relation to the applicant.[48]  The Tribunal further explained that those (earlier) findings might lead it to question whether the applicant was being truthful.[49]

   [48] see transcript 18.13-19.19

   [49] transcript 18.21-30; 19.17-26

4. Further, the Tribunal gave the applicant sufficient opportunity to “give evidence and present argument” in relation to whether he was the spouse of the sponsor.  For example, the applicant, as well as the sponsor and her children, gave evidence to the Tribunal, including in relation to the nature of the applicant’s and spouse’s relationship.  The applicant was also afforded the opportunity to provide post-hearing submissions to the Tribunal.

5. The need for the applicant to establish that he was the “spouse” of the sponsor was also drawn to his attention outside of the Tribunal’s hearing. For example:

   a)on 10 October 2016, the Minister’s Department wrote to the applicant and requested that he provide further information and evidence to satisfy the delegate that he was in a spousal relationship with the sponsor;[50] and

   b)the delegate’s decision expressly drew attention to the need for the applicant, in order to be granted the visa, to show “compelling reasons” for not applying criterion 3001 (ie. so as to satisfy clause 820.211(2)(d)(ii)), but also to the need for the applicant to establish that he was in a spousal relationship with the sponsor (and thereby to satisfy clause 820.211(2)(a)). That is, it was made apparent, in the delegate’s decision, that while the delegate had found against the applicant on the basis of clause 820.211(2)(d)(ii), the applicant would also need to satisfy, in order to be granted the visa, the criteria which required him to be in a spousal relationship with the sponsor.[51]

   [50] CB 71-72

   [51] CB 146

6. Finally, it is also plain that the applicant and his migration agent understood the need for the applicant to prove, including to the Tribunal, that the applicant was in a spousal relationship with the sponsor. The applicant provided a range of documentary evidence for that purpose (eg. statements, as well as documents allegedly establishing such a relationship, such as tenancy agreements and bank statements). The applicant’s migration agent also provided a written submission.

The grounds of review in the amended application

1. The grounds advanced in the application as amended do not establish any jurisdictional error.  I agree with the Minister’s submissions on those grounds.

Grounds 2, 3, 5, 6 and 7

1. These grounds appear to impugn the Tribunal’s conclusion[52] that the applicant and sponsor were not in a spousal relationship. However, none of these grounds establish jurisdictional error by the Tribunal.

Ground 2

[52] at CB 239 [36]

1. This ground appears to allege that the Tribunal fell into jurisdictional error by finding that the applicant was not in a spousal relationship with the sponsor “without sufficient evidence to make such [a] finding and/or against the weight of the evidence”.

2. This ground is misconceived.  Contrary to the suggestion in the ground, the weighing of the evidence is a matter for the Tribunal alone.[53]  Also, the Tribunal does not require rebutting evidence before holding that a factual assertion made by a review applicant is not made out.[54]  Insofar as the ground challenges the weighing or “sufficiency” of evidence, it appears to rise no higher than an expression of the applicant’s disagreement with the Tribunal’s findings, thereby inviting impermissible merits review.

   [53] Minister for Immigration v SZJSS (2010) 243 CLR 164 at [33]

   [54] see Selvadurai v Minister for Immigration (1994) 34 ALD 347 at 348

3. The Tribunal’s finding that the applicant and sponsor were not in a spousal relationship had a logical and rational basis.  In reaching that conclusion, the Tribunal observed, among other things, that:

   a)while the financial aspects of the relationship did provide some evidence of a spousal relationship,[55] there was no evidence of the parties having joint assets,[56] or that they shared day-to-day expenses;[57]

   b)the evidence before it as to the social aspects of the relationship was not indicative of a spousal relationship;[58]

   c)the applicant’s and sponsor’s claim as to how their relationship began was implausible;[59]

   d)it held concerns about the applicant’s reliability as a witness, given the findings of the RRT in respect of the earlier protection visa application.[60]  The Tribunal was also concerned by the applicant’s past attempts to remain in Australia unlawfully and the applicant’s extensive delay in applying for the visa. These matters suggested that the applicant would do “whatever it takes” to obtain permanent residence in Australia;[61] and

   e)it was concerned that a large and unexplained cash deposit into the applicant’s and sponsor’s joint bank account had been made only to bolster their case before the Tribunal.[62]

   [55] CB 237 [22]

   [56] CB 236 [18]

   [57] CB 236-237 [21]

   [58] CB 238 [26]

   [59] CB 238 [30]

   [60] CB 238 [29], [31]

   [61] CB 238-239 [31]-[36]

   [62] CB 239 [35]

4. A rational and logical decision maker could have come to the same conclusion, on the same evidence that was before the Tribunal. Accordingly, no irrationality or illogicality is shown.[63]

Ground 3

[63] see Minister for Immigration v SZMDS (2010) 240 CLR 611 at [131], [135] per Crennan and Bell JJ and Minister for Immigration v Sabharwal [2018] FCAFC 160 at [45]

1. This ground alleges that the Tribunal failed “to properly consider…the evidence of the sponsoring spouse’s feelings of commitment to a genuine spousal relationship”. Insofar as this ground alleges a failure to “properly consider” the sponsor’s evidence it, too, expresses disagreement with the Tribunal’s factual findings and invites impermissible merits review. It is clear that the Tribunal did consider, and place weight on, the sponsor’s evidence about her relationship with the applicant.[64]  That evidence was, however, simply insufficient to satisfy the Tribunal that the applicant and sponsor were in a spousal relationship, given the other concerns held by the Tribunal. No jurisdictional error is shown.

Ground 5

[64] see eg. CB 235 [13]; CB 236 [21]; CB 237 [23] and CB 239 [33]-[34])

1. This ground alleges that the Tribunal failed “to give proper weight” to relevant evidence, being evidence of the sponsor’s daughters about the applicant. Again, insofar as this ground disputes the Tribunal’s weighing of the evidence before it, the ground invites impermissible merits review. Also, this is not a case where the Tribunal has ignored, overlooked, or simply given no weight at all to the sponsor’s daughters’ evidence.[65]  No jurisdictional error is shown.

Ground 6

[65] See, for example, CB 235 [14] (where the Tribunal summarised the evidence they had given), CB 237 [23] (where the Tribunal placed “significant weight” on the daughters’ evidence about the household), CB 237 [25] (where the Tribunal referred to evidence of the applicant and the sponsor’s daughters undertaking activities together) and CB 239 [34] (where the Tribunal stated that it had placed weight on the daughters’ evidence)

1. This ground alleges that the Tribunal’s non-satisfaction that the social aspects of the relationship were indicative of a spousal relationship was “against the weight of evidence” or involved a failure “to give proper weight to relevant considerations”. Again, insofar as this ground disputes the Tribunal’s weighing of the evidence before it, the ground invites impermissible merits review.

2. At [24]-[25], the Tribunal noted that the applicant had provided photographic evidence of himself, the sponsor and her family sharing time together, and also statutory declarations from friends about their relationship (dated in 2015). However, at [26], the Tribunal explained that it was concerned as to the lack of contemporaneous evidence before it of the social aspects of the relationship, including as to how the applicant and sponsor presented themselves to others, and the opinion of others about their relationship. It was this concern that resulted in the Tribunal simply being not satisfied that the social aspects of the relationship were indicative of a spousal relationship.[66]  A rational and logical decision maker could have held the same concerns, and come to the same conclusion, on the evidence before the Tribunal. No irrationality or illogicality is shown.[67]

Ground 7

[66] CB 238 [26]

[67] SZMDS

1. This ground alleges that the Tribunal failed to “give proper weight” to statutory declarations from friends and also to photographic evidence submitted by the applicant. Again, insofar as this ground disputes the Tribunal’s weighing of the evidence before it, the ground invites impermissible merits review.  As stated above (in relation to Ground 6), the Tribunal did take into account the statutory declarations and photographs provided by the applicant.[68]  The Tribunal’s non-satisfaction that the social aspects of the relationship were indicative of a spousal relationship arose from other concerns it held.

   [68] see CB 237-238 [24]-[26]

Grounds 1, 9, 10 and 11

1. These grounds appear to relate to the Tribunal’s concern about the circumstances in which the applicant’s and sponsor’s relationship was alleged to have commenced.

Ground 9

1. This ground alleges that the Tribunal’s finding of implausibility in relation to the circumstances in which the applicant’s and sponsor’s relationship had commenced, was made “without sufficient evidence” and “against the weight of the evidence”. Again, insofar as this ground disputes the Tribunal’s weighing of the evidence before it, the ground invites impermissible merits review.

2. There was also nothing illogical or irrational in the Tribunal finding that the applicant’s and sponsor’s claim about how their relationship commenced was implausible.  In particular, the Tribunal referred[69] to its concern that a “brief random encounter” involving a “lost mobile phone”, “purported eye contact” and a “short conversation” had somehow led the applicant to become “instantly infatuated” by the sponsor, especially in circumstances where there was a significant age difference between them. The Tribunal’s concern as to the plausibility of the applicant’s claims was also supported by other concerns the Tribunal held about the applicant’s evidence, such as the applicant having previously provided untruthful evidence to another Tribunal (in support of a protection visa application),[70] the Tribunal’s view that the applicant would do “whatever it takes” to obtain a positive migration outcome,[71] and the circumstances in which the applicant’s bank statement had been provided to the Tribunal.[72]  A rational and logical decision maker could have held the same concerns, and come to the same conclusion, on the evidence that was before the Tribunal.

Ground 10

[69] at CB 238 [30]

[70] CB 238 [29]-[31]

[71] CB 238 [32]

[72] CB 239 [35]

1. This ground alleges that the Tribunal erred by taking into account an irrelevant consideration, namely the implausibility in which the applicant and sponsor’s relationship commenced. However, that matter was plainly relevant to the Tribunal’s decision. The Tribunal was required to assess whether the applicant and sponsor were in a spousal relationship (as defined in s.5F of the Migration Act). Regulation 1.15A(3)(d) expressly required the Tribunal to consider the “nature of the persons’ commitment to each other”. If the applicant and sponsor had been untruthful about the circumstances in which their (alleged) spousal relationship commenced, that could logically impact upon an assessment of the “nature” of their “commitment” to each other, as well as call into question whether the applicant and sponsor had been truthful about the other aspects of their relationship (and evidence). No jurisdictional error is shown.

Grounds 1 and 11

1. These grounds appear to allege that the Tribunal took into account an irrelevant consideration, being the previous Tribunal’s finding as to the applicant’s credibility and untruthfulness. No jurisdictional error is shown.  Past findings by a Tribunal as to the untruthfulness (or lack of credibility) of a review applicant could logically bear upon another Tribunal’s analysis of a review applicant’s later claims and evidence. As the Tribunal explained at [11],[73] the past findings by the RRT could lead the Tribunal to conclude that the applicant was an “unreliable witness” which, in turn, might lead the Tribunal to doubt the applicant’s truthfulness and the reliability of statements he was making in support of his current application. There is nothing illogical about that, especially given that the past credibility findings also arose out claims and evidence made in support of another visa application.  Also, this is not a case where the Tribunal rejected the applicant’s claims solely because of the previous RRT findings.  Rather, those findings were only one of a number of matters the Tribunal referred to in concluding that it was not satisfied of the applicant’s claim to be in a spousal relationship with the sponsor.

Ground 12

[73] CB 235

1. This ground appears to impugn the Tribunal’s concern, expressed at [32]-[33],[74] that the applicant had intentionally delayed lodging his application for the visa. No error by the Tribunal is shown. At [32], the Tribunal referred to the applicant’s application having been filed “significantly out of time”. In that respect, the Tribunal observed at [27] that the applicant had not filed the application until July 2015 (despite having been married in September 2014),[75] and that this delay created a “time lag sufficient” for the applicant to argue that a “long term spousal relationship” existed.[76] That was a basis (contained in the applicable Departmental Policy) on which the Schedule 3 criteria may be waived (being criteria the applicant would otherwise have to satisfy). This delay, the Tribunal explained at [32], supported its view that the applicant’s past behaviour in Australia indicated a desire to “secure a positive migration outcome…using ‘whatever it takes’”. There was nothing illogical or irrational about the Tribunal’s conclusion, because a logical and rational decision maker could also have reached it.[77]

Ground 4

[74] CB 238-239

[75] CB 238 [27]

[76] CB 238-239 [32]

[77] see SZMDS, above

1. This ground alleges that the Tribunal failed to take into account, as a relevant consideration in determining whether to waive the Schedule 3 criteria, the financial hardship the sponsor would suffer if the applicant was forced to leave Australia in order to apply for the visa.

2. This ground is misconceived. The Tribunal’s decision turned on whether the applicant and sponsor were in a spousal relationship, not whether the Tribunal should waive compliance with the Schedule 3 criteria. Accordingly, the Tribunal was not required to consider the financial hardship that might have arisen to the sponsor if the Schedule 3 criteria were not waived.

Grounds 8 and 13

1. These grounds were not developed in the applicant’s submissions and in my view have no substance.

The factual errors

1. In his oral submissions, the applicant drew attention to what he described as significant factual errors made by the Tribunal in its decision.

2. The applicant is from Tunisia.  At [8][78] he is described as being “Egyptian”.  At [21][79] the Tribunal refers to the possibility of the applicant having “to return to Algeria”. These are regrettable errors but, in my view, they are not material. It is clear from the transcript that the Tribunal was aware that the applicant is from Tunisia and his nationality is referred to correctly, for example at [13].[80]

   [78] CB 234

   [79] CB 236

   [80] CB 235

3. The applicant also contends that the Tribunal made a factual error at [18] where it stated that there was no evidence before it that the parties had no joint assets. It is apparent that they do, because they are discussed at [20]. The explanation is that the assets in issue at [18] are a different class of assets from those discussed at [20].

4. Of more seriousness is the question of the applicant’s migration history.  At [29], the Tribunal stated:[81]

   The applicant, as has been previously outlined, is a failed PV applicant.  Throughout the period from January 2013 to his application on 16 July 2015 the applicant was an unlawful non-citizen.  His initial attempt to gain permanent residency had been thwarted by the refusal of his PV application and the later request for Ministerial Intervention.  The refusal was subsequently affirmed by a previous Tribunal (then RRT) Member as elaborated pursuant to s.359AA of the Act.  The primary reasons for the refusal of the visa were the applicant’s untruthfulness and a concomitant poor credibility finding by the RRT Member.  This led inexorably to the decision to affirm the refusal.

   [81] CB 238

1. It is apparent that the Tribunal decision turned in no small degree on adverse credibility findings made by the RRT in dealing with the protection visa application.  At [31] the Tribunal stated:[82]

   It is the firm view of the Tribunal that the credibility findings of the RRT Member can be juxtaposed with the implausible explanation for the initiation of the relationship between the parties.  This conclusion has led the Tribunal to the view that the relationship scenario has been concocted to give verisimilitude to a genuine spouse relationship.

   [82] CB 238

2. At the trial, I considered that, if the Tribunal were in error in relation to the applicant’s migration history, that error could be material.  He claims that at no stage was he an unlawful non-citizen.  I invited counsel for the Minister to seek further instructions on that question and provided an opportunity to make further submissions. 

3. The affidavit of Ms Scully satisfies me that the applicant was an unlawful non-citizen for approximately four months between 14 January 2013 and 22 May 2013, and for one day on 7 May 2015.

4. Accordingly, what the Tribunal wrote at [29] of its reasons, “Throughout the period from January 2013 to his application on 16 July 2015 the applicant was an unlawful non-citizen”, misstates the times at which the applicant was unlawfully in Australia, as he did hold a bridging visa between 23 May 2013 and 16 July 2015 (other than on 7 May 2015).

5. Notwithstanding [29] of the Tribunal’s reasons, for the following reasons, this is not a case where it should be inferred that the Tribunal has proceeded, in making its decision, on a wrong understanding of the times at which the applicant was an unlawful non-citizen.

6. During the Tribunal’s hearing, the Tribunal member discussed with the applicant the periods in which he was an unlawful non-citizen. In particular:[83]

   a)at transcript 23.36-24.9, the Tribunal discussed with the applicant his status as an unlawful non-citizen in Australia;

   b)at transcript 23.39-42, the Tribunal observed that the applicant held a subclass ZM-988 visa from 17 July 2011, and that he last entered Australia on that visa on 9 January 2013. The Tribunal had earlier observed that the applicant stayed beyond his permitted shore leave in January 2013, which resulted in him becoming an unlawful non-citizen;[84]

   c)at transcript 23.42 onwards, the Tribunal observed that the applicant was granted a Bridging Visa-C on 22 May 2013. The Tribunal also observed that this occurred as a result of the applicant having lodged his protection visa application in May 2013;[85] and

   d)at transcript 24.2-9, the Tribunal recorded that the applicant was granted a Bridging Visa-E on 8 May 2015, and that he had been granted further bridging visas (which continued to be in effect at the time of the Tribunal’s hearing).

   [83] See the transcript filed by the Minister on 20 February 2019, as Annexure PJ-01 to the affidavit of Mr Jeyakkumar

   [84] see transcript 21.26-28

   [85] see transcript 21.32-22.4 and transcript 24.38-40

7. The matters stated by the Tribunal during the hearing (summarised above) correctly reflected the applicant’s past migration status in Australia and show that the Tribunal member had considered and was aware of the correct periods in which the applicant was an unlawful non-citizen. In particular, the Tribunal was aware that the applicant was granted a Bridging Visa-C when he lodged his application for a protection visa (in May 2013), which made him a lawful non-citizen.

8. Furthermore, the Tribunal also discussed, at [9] of its reasons, the applicant’s past visa history. The Tribunal there noted that the applicant “last arrived in Australia on 9 January 2013. He then stayed ashore beyond his permitted leave and (as was explained to him in the hearing) became an unlawful non-citizen. He applied for a protection visa on 21 May 2013…”.  There is nothing in this paragraph that is indicative of the Tribunal misunderstanding the times at which the applicant was an unlawful non-citizen. The Tribunal noted that the applicant became an unlawful non-citizen in January 2013, and that he had applied for the protection visa in May 2013. Moreover, the Tribunal here also refers back to its discussion of the applicant’s past immigration status with him at the hearing, in which, as set out above, the Tribunal member correctly identified the periods at which the applicant was an unlawful non‑citizen.

9. It is apparent that the Tribunal member was aware that the applicant was granted a Bridging Visa-C when he lodged his application for a protection visa in May 2013 and that he ceased being an unlawful non‑citizen at this time.[86]  The impugned sentence, in [29] of the Tribunal’s reasons, states that the applicant was an unlawful non-citizen from January 2013[87] “to his application on 16 July 2015”. It appears that the Tribunal member has made a typographical error in recording the date of the applicant’s protection visa application as “16 July 2015” (which was, in fact, the date that he lodged the partner visa application), instead of “May 2013”. The inference of a typographical error can be drawn given the matters set out above and, in particular, the Tribunal member’s awareness that the applicant was granted a Bridging Visa-C on the lodging of his protection visa application, in May 2013.

   [86] cf. transcript 22.3-4; 23.42-24.1; 24.38-40

   [87] which is correct, see above

10. Accordingly, this is not a case where it should be inferred that the Tribunal has proceeded, in making its decision, on a wrong understanding of the times at which the applicant was an unlawful non‑citizen.

11. Even if I were wrong and, by reason of what is stated at [29] of the Tribunal’s reasons, the Tribunal did proceed on a mistaken understanding of when the applicant was an unlawful non-citizen in Australia, in my view no jurisdictional error results. If the Tribunal did err, that error only related to the period between May 2013 and July 2015 (ie. even if the Tribunal erred, it was still correct that there was a period of unlawfulness between January to May 2013). Nothing in the Tribunal’s decision appears to turn, or rely, on the applicant being an unlawful non-citizen (or not) in the particular period between May 2013 and July 2015. Moreover, that the applicant had been unlawfully in Australia was only one of many matters taken into account by the Tribunal in not being satisfied that the applicant and sponsor were in a spousal relationship. The Tribunal placed importance in its decision, for example, on:

    a)the evidence advanced by the applicant as to the social aspects of the relationship (eg. photographs and statutory declarations) not being indicative of a spousal relationship;[88]

    b)the relationship statements provided by the applicant and sponsor were “unconvincing” and the applicant’s account as to the circumstances in which his relationship with the sponsor commenced was “implausible”, and not convincing;[89]

    c)that the (then) RRT had previously found the applicant to be an unreliable witness, which supported the Tribunal’s concern as to the implausibility of the circumstances in which the applicant and sponsor claimed their relationship had commenced;[90]

    d)the applicant had delayed lodging his partner visa application in a manner that suggested that he was attempting to diminish the impact of his inability to satisfy the Schedule 3 criteria;[91]

    e)a “random large payment” had been made into the applicant’s and sponsor’s bank account shortly before the Tribunal hearing, which appeared to be intended to “secure a successful migration outcome”;[92] and

    f)medical evidence provided by the applicant appeared worded in a way designed to strengthen the applicant’s case for remaining permanently in Australia.[93]

    [88] at CB 237-238 [24]-[26]

    [89] CB 238 [28]-[31]; 239 [36]

    [90] CB 238 [31]

    [91] CB 238-239 [32]-[33]

    [92] CB 239 [35]

    [93] CB 239 [38]

12. The Tribunal’s finding in relation to the applicant being an unlawful non-citizen was not “critical” to, or a “foundational element” of, the Tribunal’s conclusion that the applicant and sponsor were not in a spousal relationship. It played only a minor role in the Tribunal’s decision. Any error in relation to the period in which the applicant was unlawfully in Australia thus did not result in jurisdictional error.[94]

    [94] see Minister for Immigration v SZUXN (2016) 69 AAR 210, especially at [55] and [71] per Wigney J

13. The applicant also submitted orally that the Tribunal gave undue attention to the adverse credibility findings made in relation to his protection visa application. It is clear from the transcript that the Tribunal’s concern about those findings was squarely put to the applicant in accordance with s.359AA. The prior adverse credibility findings were not an irrelevant consideration. At the same time, the fact that an applicant may have been untruthful in seeking protection does not necessarily lead to a conclusion that they have been untruthful in a later visa application. The Tribunal was troubled in the present case about the account of how the relationship commenced. Relevant discussion is at [30] where the Tribunal stated:[95]

    The parties have claimed in their relationship statements to the Department that they were present simultaneously in a pizzeria. The sponsor left her phone accidentally behind. He returned the lost phone to the sponsor and then attempted to engage her in a conversation. She, for her part, claimed he had been making eye contact with her prior to the handover of the phone. Having engaged her in conversation when handing back the phone he then requested her telephone number. She obliged him. He disclosed that after the above scenario he "couldn't believe to go home and ring her. I made the first call about 7 pm." She confirmed that he rang her that evening. Thus it appears that a brief random encounter over a lost mobile phone, some purported eye contact and a short conversation led the applicant somehow to become instantly infatuated by the sponsor. The Tribunal has factored into its assessment of this scenario the ages and marital status of the parties. It followed a momentary encounter in a pizzeria occasioned by the finding of a lost telephone. The Tribunal finds such a scenario to be implausible.

    [95] CB 238

14. I had the benefit of observing both the visa applicant and the sponsor at the trial and at several earlier interlocutory hearings.  They impressed me as sincere people and, in my view, the sponsor shows genuine affection for the applicant.  Nevertheless, the adverse credibility conclusions reached by the Tribunal were open to it on the material before it and it was open to the Tribunal to take into account the adverse credibility conclusions reached by the RRT in relation to the protection visa application.  As the Tribunal observed at its hearing in this case, the fact that the sponsor (and her children) may have genuinely committed to the relationship does not mean that the applicant has.

Conclusion

1. I conclude that the applicant is unable to demonstrate that the decision of the Tribunal is affected by any jurisdictional error.  The decision is therefore a privative clause decision and the application must be dismissed.  I will so order.

2. I will hear the parties as to costs.

I certify that the preceding seventy-three (73) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date: 10 May 2019