Ali v Minister for Immigration

[2017] FCCA 374

FEDERAL CIRCUIT COURT OF AUSTRALIA

ALI v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 374

Catchwords:
MIGRATION – Review of decision by Administrative Appeals Tribunal – whether Administrative Appeals Tribunal’s decision affected by jurisdictional error – whether the Administrative Appeals Tribunal took into account relevant considerations – whether the Administrative Appeals Tribunal failed to ask the correct question – whether the Administrative Appeals Tribunal misconstrued the relevant legislative requirements – no jurisdictional error – application dismissed.

Legislation:
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5F, 31, 65, 338, 359A, 359AA, 360, 474
Migration Regulations 1994 (Cth), reg.1.15A, cl. 820.211

Cases cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547

Applicant: AZIK ALI

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1984 of 2015

Judgment of: Judge Emmett

Hearing date: 1 March 2017

Date of Last Submission: 1 March 2017

Delivered at: Sydney

Delivered on: 1 March 2017

REPRESENTATION

Counsel for the Applicant: Mr Ashok Kumar

Solicitors for the Applicant: Harish Prasad & Associates

Solicitor for the Respondents: Mr Andrew Keevers
(Sparke Helmore)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1984 of 2015

AZIK ALI

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Administrative Appeals Tribunal dated 1 July 2015 (“the Tribunal”) affirming a decision of a delegate of the first respondent not to grant the applicant a Partner (Temporary) (Class UK) visa.

2. The background of this matter and the Tribunal’s decision are accurately summarised in the submissions of the first respondent, as follows:

   “2. The applicant applied for a partner visa on 17 June 2013 (Court Book “CB” 1-24). The applicant and his sponsor were married on 12 January 2013 (CB 43). On 13 June 2014, a delegate of the Minister refused the grant of the visa on the basis that the applicant did not satisfy cl 820.211 of Schedule 2 to the Migration Regulations 1994 (Cth) (“Regulations”) as the delegate was not satisfied that the applicant and sponsor were in a genuine spousal relationship (CB 105-122).

   3. On 16 June 2014, the applicant applied to the Tribunal for review of the delegate’s decision (CB 131-132). On 23 June 2015, the applicant and the sponsor appeared at a hearing before the Tribunal to give evidence and present arguments (CB 307). On 1 July 2015, the Tribunal affirmed the decision of the delegate not to grant the visa (CB 336-344).

   Tribunal decision

   4. The Tribunal identified that the issue before it was whether the applicant was the spouse of the sponsor within the meaning of s. 5F of the Act (CB 337 at [4]). The Tribunal identified that cl. 820.211(2) and 820.221 of Schedule 2 to the Regulations required that, at the time the application was made and at the time of the Tribunal’s decision, the applicant was the spouse of an Australian citizen, an Australia permanent resident or an eligible New Zealand citizen (CB 337 at [6]). The Tribunal also set out the definition of “spouse” as defined in s 5F of the Act and the requirements of reg 1.15A(3) of the Regulations in forming an opinion as to the matters set out in s 5F(2)(a)-(d) (CB 337 at [6]).

   5. The Tribunal found that, on the evidence, the parties were married to each other under a marriage that was valid for the purposes of s 5F(2)(a) of the Act (CB 337 at [7]).

   6. The Tribunal found that the parties had not been truthful in their evidence as to how they met and the development of their relationship and that they had “simply fabricated an account, rather than described the circumstances as they existed” (CB 339 at [14]). This was based on several inconsistencies that the Tribunal considered to be “significant” in the evidence of the applicant and the sponsor (CB 338-339 at [9]-[10], [13]).

   7. The Tribunal was not convinced that the applicant and the sponsor formed a genuine commitment to marriage within about three weeks (being the duration between their first meeting in person and when they filed the notice of intention for marriage) (CB 338 at [11]).

   8. The Tribunal had substantial concerns about the applicant’s and the sponsor’s living arrangements, noting that the evidence was that the applicant lived predominantly in Sydney with his mother and the sponsor lived in Queensland (CB 339 at [15]). The Tribunal noted that the parties claimed this was because of their employment commitments and financial circumstances (CB 339 at [15]). As there was no evidence that the applicant had applied for jobs in Queensland, and as the applicant’s training as a cook was not limited to a geographical location, the Tribunal was not convinced that the applicant was incapable of finding employment in Queensland for the two and half years since their marriage (CB 339 at [15]). For the same reasons, the Tribunal was not satisfied that the sponsor would have been unable to find a job in Sydney (CB 339-340 at [15]).

   9. The Tribunal accepted that the applicant travelled to Queensland on a number of occasions and was prepared to accept that the couple lived together during these periods (CB 340 at [16]). However, the Tribunal found that these periods were brief and it was not satisfied that there were good reasons for the couple to live separately, that they had taken adequate steps to ensure they could live together, or that they had established a joint household (CB 340 at [16]). The Tribunal was of the view that this offered a strong indication that they lacked “mutual commitment to a relationship and [did] not view it as a long term one” (CB 340 at [16]).

   10. In relation to the financial aspects of the relationship, the Tribunal formed the view that the parties’ joint account was only opened for the purpose of the migration application and did not reflect the parties’ desire to share financial resources (CB 340 at [17]). This was based on concerns that the parties operated individual bank accounts for daily transactions and the sponsor’s lack of knowledge as to the amount in the joint account (CB 340 at [17]).

   11. The Tribunal acknowledged that the parties had provided wills nominating each other as beneficiaries (CB 340 at [18]). While noting that the purpose of the wills was unclear, the Tribunal had regard to the evidence that neither party had had a will before and that the applicant’s migration agent recommended that they draft a will (CB 340 at [18]). On this basis, the Tribunal formed the view that the sole purpose of the parties arranging wills nominating each other as beneficiaries was to establish evidence for the migration application and that the wills did not show a willingness to share finances (at [18]).

   12. The Tribunal formed the view that the parties did not have the adequate knowledge of each other’s finances that could be expected of a couple in a genuine and committed relationship, and was not convinced the parties had discussed their financial arrangements with each other (CB 341 at [19]-[20]). This was based on the inconsistencies in the evidence of the applicant and the sponsor in this regard (CB 341 at [19]). Overall, the Tribunal was satisfied that the couple had a joint bank account and had made some effort to share their finances but it formed the view that they had done so solely for the purpose of establishing evidence for the visa application (CB 341 at [21]).

   13. In considering the social aspects of the relationship, the Tribunal had some concerns regarding the involvement of the parties’ families in their wedding (CB 341-342 at [22]). The Tribunal accepted that the parties had disclosed their relationship to others and that there was at least some family and social recognition of the relationship, but was not satisfied that the parties presented themselves as being in a genuine and committed relationship to a wide range of people (CB 342 at [23]).

   14. In relation to the parties’ commitment to each other, the Tribunal considered the parties’ evidence (CB 342 at [24]) but formed the view that the inconsistencies in their evidence as to each other’s daily life, while not of great significance on their own, in this case signified the parties’ lack of interest in each other’s affairs (CB 342 at [25]-[26]). In light of the parties’ claim of regular communication, the Tribunal expected the parties to have greater knowledge of each other’s employment arrangements (CB 342 at [26]). The Tribunal set out further inconsistencies in the parties’ evidence (CB 342-343 at [27]) and found that the parties’ knowledge of each other was not consistent with the existence of a genuine and committed relationship that had lasted two and half years (CB 342-343 at [27]). The Tribunal found the applicant’s explanation of these inconsistencies to be unconvincing (CB 343 at [29]).

   15. Having had regard to all aspects of the relationship and for the reasons given above, the Tribunal was not satisfied that the applicant and the sponsor had a mutual commitment to a shared life together to the exclusion of all others and was not satisfied that the relationship between them was genuine and continuing (CB 344 at [32]). Accordingly, the Tribunal was not satisfied that at the time of the visa application and the time of the decision, the parties were in a spousal relationship and found that the applicant did not meet cl 820.211(2) (CB 344 at [32]).

   16. The Tribunal was not satisfied that the applicant met any of the alternative criteria in cl 820.211 (CB 344 at [32]) and therefore found that he did not satisfy the criteria for the grant of the visa (CB 344 at [33]). Accordingly, the Tribunal affirmed the decision under review (CB 344 at [34]).”

Legislative framework

1. Pursuant to s.65(1)(a) of the Act, if satisfied of a number of matters, the first respondent may grant a visa. Section 31(1) of the Act provides that there are to be prescribed classes of visa. One class of visa is a Protection (Class UK) visa (reg.2.01 of the Migration Regulations 1994 (Cth) (“the Regulations”) and Schedule 1 to the Regulations).

2. At the time of the Tribunal’s decision, the applicant was required to meet the requirements in cl.820.211(2)(a) of Schedule 2 to the Regulations for the grant of a Partner (Temporary) (Class UK), as follows:

   “820.21 Criteria to be satisfied at time of application

   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;

   …”

3. “Spouse” is defined in s.5F of the Act, as follows:

   “Spouse

   (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.

4. This definition of “spouse” is supplemented by reg.1.15A of the Regulations, as follows:

   “1.15A  Spouse

   (1) For subsection 5F(3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5F(2)(a), (b), (c) and (d) of the Act exist.

   (2)  If the Minister is considering an application for:

   …

   (d)  a Partner (Temporary) (Class UK) visa;

   the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).

   (3)  The matters for subregulation (2) are:

   (a)  the financial aspects of the relationship, including:

   (i) any joint ownership of real estate or other major assets; and

   (ii)  any joint liabilities; and

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

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

   (v) the basis of any sharing of day-to-day household expenses; and

   (b)  the nature of the household, including:

   (i) any joint responsibility for the care and support of children; and

   (ii) the living arrangements of the persons; and

   (iii) any sharing of the responsibility for housework; and

   (c)  the social aspects of the relationship, including:

   (i) whether the persons represent themselves to other people as being married to each other; and

   (ii) the opinion of the persons’ friends and acquaintances about the nature of the relationship; and

   (iii) any basis on which the persons plan and undertake joint social activities; and

   (d)  the nature of the persons’ commitment to each other, including:

   (i)  the duration of the relationship; and

   (ii)  the length of time during which the persons have lived together; and

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

   (iv) whether the persons see the relationship as a long-term one.”

5. Under s.338 of the Act, a decision to refuse to grant a protection visa is a decision which may be reviewed by the second respondent.

6. The requirements of the natural justice hearing rule are exhaustively stated in Division 5 of Part 5 of the Act (s.357A of the Act). Division 5 Part 5 includes ss.359A and 360, which provide that:

   “359A  Information and invitation given in writing by Tribunal

   (1)  Subject to subsections (2) and (3), the Tribunal must:

   (a) give to the Applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review.

   360  Tribunal must invite Applicant to appear

   (1) 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.”

7. Section 359AA of the Act permits the Tribunal to give orally to an applicant clear particulars of any information that the Tribunal considers would be the reason or part of the reason for affirming the decision under review. The Tribunal must ensure that the applicant understands the relevance of the information and the consequences of any information being relied upon. The Tribunal must also invite the applicant to comment on or respond to the information and advise the applicant that the applicant may seek additional time to comment on or respond to the information.

8. Under s.474(2) of the Act, a decision of the second respondent is a “privative clause decision”. Under s.474(1)(a) of the Act, a privative clause decision is final and conclusive.

9. However, a purported decision of the second respondent which is affected by jurisdictional error is not a decision which is made under the Act and therefore is not a privative clause decision (see Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476).

The proceeding before this Court

1. The applicant was represented before the Court this morning by Mr Kumar, of counsel. 

2. Mr Kumar confirmed that the applicant relied on the Grounds contained in the Amended Application filed on 10 November 2015.  Those Grounds are as follows: 

   “Ground 1

   1. The Tribunal committed jurisdictional error when it asked failed to ask the correct question and ignored relevant considerations and / or took into account irrelevant considerations / constructively failed to exercise jurisdiction.

   Particulars

   1.1 The Tribunal erred when it took into account irrelevant considerations of the circumstances of meeting of the Applicant with the Sponsor and the marriage within short time of the meeting (CB 338; AAT dec p3 at [9] - [11]; CB 339 at [15])

   1.2 Take into account subsequent events;

   1.3 Failed to take into account the mutual intention of the parties (as to why the Sponsor remained in Queensland).

   1.4 Not given consideration to the Applicant and Sponsor's future plans.

   Ground 2

   2. The Tribunal committed jurisdictional error when it asked failed to ask the correct question and / or asked the incorrect question and / or misconstrued the Act and Regulations regarding Applicant and sponsor's demonstration of commitment to family and wider group of people.

   Particulars

   2.1 The Tribunal erred when it asked the wrong question and failed the correct question regarding the Applicant and sponsors demonstration of commitment to family and wider group of people.

   2.2 Not asked correct questions regarding (CB 342 at [23]) regarding Applicant and sponsor's demonstration of commitment to others.

   2.3 Not asked correct questions / misconstrued the provisions (CB 342 at [23]) when it found that it is not satisfied “that the parties present themselves as being in a genuine and committed relationship to a wide range of people."

   2.4 The Act and / or relevant Regulations does not impose such requirements.

   2.5 The Tribunal committed jurisdictional error.

   Ground 3

   3. The Tribunal committed jurisdictional error when it asked failed to ask the correct question / or asked the incorrect question or ignored relevant consideration. The Tribunal committed jurisdictional error when it asked failed to ask the correct question and / or asked the incorrect question regarding the Applicant and sponsor being together.

   Particulars

   3.1 The Tribunal erred when it asked the wrong question and failed the correct question – whether the parties could remain in different states and satisfy requirements of s 5CB(2) of the Migration Act (CB 338 – 9).

   3.2 The Tribunal failed to address the parties' intentions.

   3.3 Not asked correct questions regarding subsequent events and mutual intentions of the parties to the marriage.

   Ground 4

   4. The Tribunal committed jurisdictional error when it asked failed to ask the correct question and / or asked the incorrect question.

   Particulars

   4.1 The Tribunal erred when it asked the wrong question and failed the correct question regarding the joint bank account;

   4.2 Not asked correct questions regarding volume / amount of transactions (CB 338 – 9 at (17)) occurring bin the various bank accounts - asked the incorrect question that the volume of transactions was determinative of the marriage relationship when the Act or Regulations does not impose such requirements.

   Ground 5

   5. The Tribunal committed jurisdictional error when it asked failed to ask the correct question and / or asked the incorrect question regarding wills.

   Particulars

   5.1 The Tribunal erred when it asked the wrong question and failed the correct question regarding the wills;

   5.2 Failed to ask the Applicants regarding the wills;

   5.3 Made determinative conclusions without being clear (or being “unclear”(CB 340 at [17]) and without making findings.

   Ground 6

   6. The Tribunal committed jurisdictional error when it asked failed to ask the correct question and ignored relevant considerations and / or took into account irrelevant considerations / constructively failed to exercise jurisdiction.

   Particulars

   6.1 In failing to ask the correct questions concerning all other matters and /or ignoring relevant materials and taking into account irrelevant considerations the Tribunal committed jurisdictional error.

   6.2 Took into account irrelevant considerations (CB 342 at [25] – [26]).”

   (Errors in original).

1. Mr Kumar did not press Ground 1, particulars 1.1 and 1.2 and Ground 6 of the Amended Application. The grounds make general assertion of error and are not properly particularised. They are dense, convoluted and difficult to navigate.   

Ground 1

1. Ground 1 appears to assert that the Tribunal erred in failing to take into account the mutual intention of the parties as to why the applicant’s sponsor (“the Sponsor”) remained in Queensland, and did not give consideration to the applicant and the Sponsor's future plans.

2. In considering the various aspects of the relationship of the applicant and the Sponsor, the Tribunal noted that it had substantial concerns about their living arrangements.  The evidence before the Tribunal was that the applicant lives predominantly in Sydney with his mother, while the Sponsor lives in Queensland.  The Tribunal noted the applicant's claim that such arrangements were necessary because neither could get a job in the other's home state. 

3. The Tribunal ultimately found that evidence to be unconvincing and did not accept that in two and a half years, the applicant would be unable to obtain a job in Queensland as a cook. Similarly, the Tribunal did not accept that the Sponsor would have been unable to find a job in Sydney. The Tribunal noted that there was no evidence of any job applications presented in support of the assertions by the parties, or any evidence of steps taken by either party to upgrade their skills in order to secure employment in the other’s home state.

4. The Tribunal also noted that for about two years after the marriage, the applicant was unemployed. The Tribunal found, in those circumstances, that there did not seem to be a good reason why the applicant could not have remained in Brisbane with the Sponsor in that period.

5. The Tribunal noted that the applicant had suggested that there were financial concerns, as his mother had been supporting him. However, the Tribunal noted the applicant had conceded that his mother could have supported him if he lived in Queensland.  The Tribunal did accept that the applicant travelled to Queensland on a number of occasions and that the couple lived together during those periods, although the Tribunal found those periods to be relatively brief. 

6. All in all, the Tribunal found that in the two and a half years of the couple's marriage, they spent only a few months together.  The Tribunal was not satisfied that there were good reasons for the parties to live separately, and was not satisfied that the parties had taken adequate steps to ensure that they could live together, or that they had established a joint household.  The Tribunal concluded that the parties' separate living arrangements and their failure to take adequate steps to establish a joint household were a strong indication that they lacked mutual commitment to a relationship and did not view it as a long-term relationship.

7. Regulation 1.15A(1) of the Migration Regulations 1994 (Cth) (“the Regulations”) plainly requires the Tribunal to consider, inter alia, the nature of the persons' commitment to each other, when determining whether the parties are in a genuine spousal relationship. This includes the duration of the relationship, the length of time during which the persons lived together, the degree of companionship and emotional support they drew from each other, and whether they see the relationship as a long-term one.

8. In making the findings about the couple's living arrangements, the Tribunal was required to consider whether the parties saw the relationship as a long-term one.  Based on the evidence before it, the Tribunal concluded that they did not. Therefore, the Tribunal found that the parties lacked the mutual commitment to a relationship. The Tribunal’s conclusion and findings were open to it on the evidence and material before it, and for the reasons it gave.

9. There was no other evidence referred to by the applicant today in support of any evidence in relation to the parties’ future plans, which was not considered by the Tribunal.

10. In those circumstances, the allegations in Ground 1 that the Tribunal failed to take into account the mutual intention of the parties as to why the Sponsor remained in Queensland, and that the Tribunal failed to give consideration to the applicant and Sponsor's future plans, are not made out.

11. Accordingly, Ground 1 is not made out. 

12. Both parties agree that Grounds 1 and 3 address similar complaints. Accordingly, Ground 3 is also not made out for the same reasons.

Ground 2

1. Ground 2 asserts that the Tribunal applied a higher test than the statute requires in considering the social aspects of the parties' relationship.

2. Regulation 1.15A(b) requires the Tribunal to consider whether the parties represented themselves to other people as being married; the opinion of the parties' friends and acquaintances about the nature of the relationship, and any basis on which the parties plan and undertake joint social activities.

3. The Tribunal specifically referred to those statutory considerations, and noted that the applicant had provided several statements in the original application. The Tribunal also noted that the applicant provided further statutory declarations and photographs to the Tribunal in support of his review application. The Tribunal accepted that on the basis of the evidence provided by the applicant, the parties’ relationship was known to others. On the same basis, the Tribunal also accepted that the parties had socialised together. 

4. However, the Tribunal identified the concerns that it had, namely, the evidence that the Sponsor's family had not attended the wedding in January 2013, and that there did not seem to be a good reason for their failure to attend.  The Tribunal noted the Sponsor's explanation that her parents were travelling.  However, the Tribunal also had regard to the fact that it was the first marriage for the Sponsor, and that it is usually a significant event in one's life.  The Tribunal was ultimately convinced that any travel arrangements by the Sponsor's parents could have been changed to attend the wedding, or that the wedding itself could have been organised when the family was available.

5. The second concern expressed by the Tribunal was that the applicant had told the Tribunal that his brother had applied for a visa to come to Australia for the wedding but was unable to get the visa on time.  However, neither the applicant's father, nor his brother, made any attempt to attend the wedding.  The Tribunal was concerned both by the fact that the applicant's father and brother made little effort to participate in the wedding, and that the parties did not seem to have had any discussion about their involvement. 

6. Ultimately, the Tribunal accepted that the parties had disclosed their relationship to others, and that there was at least some family and social recognition of the relationship, as evidenced by the various statutory declarations. The Tribunal concluded, however, that it was not satisfied that the parties presented themselves as being in a genuine, committed relationship to a wide range of people.

7. It is that finding which the applicant contends the Tribunal applied a higher test. The applicant contended that the Tribunal required the parties to satisfy a wide range of people about the nature of their relationship, which is not a test required by the statute. 

8. Plainly, reg.1.15A(3)(c)(i) requires the Tribunal, when determining the social aspects of the relationship, to consider whether the parties represented themselves to others as a married couple. The Tribunal accepted that the parties had disclosed their relationship to some persons, as evidenced by the statements and statutory declarations provided to it by the applicant.

9. Beyond those persons, the Tribunal was not satisfied that the parties had presented themselves to a wider range of people as being in a genuine and committed relationship.  I accept that the way in which the Tribunal has expressed that finding lends itself to the contention made by the applicant.  However, I do not find that contention made out on a fair reading of the Tribunal's reasons as a whole, and without reading those reasons with an eye keenly focused on error (see Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 per French, Sackville and Hely JJ).

10. I am satisfied that the Tribunal is doing no more than intending to express that it accepted the evidence before it, however, it was not satisfied that the evidence was sufficient to establish that the parties were in a genuine and committed relationship. 

11. Accordingly, Ground 2 is not made out.

Ground 4

1. Ground 4 asserts that the Tribunal erred in relation to its findings about the financial aspects of the parties’ relationship. 

2. I do not accept the premise of Ground 4 that the Tribunal found the volume of transactions was determinative of the marriage relationship.  The Tribunal clearly considered the financial aspects of the relationship and noted that the applicant presented evidence of a joint bank account.  The Tribunal accepted that the parties operated the joint bank account, and that money went in and out of that account.

3. However, the Tribunal also had regard to the evidence before it that both the applicant and the Sponsor operated separate bank accounts where their salaries were deposited.  The Tribunal noted the applicant’s explanation that the applicant had closed his previous individual account and opened one in a different bank which was easier to use for his overseas transactions. The Tribunal noted the Sponsor’s explanation that all her bills were paid from her individual account and it was too hard to change. The Tribunal found that it was unclear why the applicant could not have been joined in that account if the Sponsor did not want to change all her payments, or why the joint account could not have been opened in the bank where the applicant could have easy access to overseas transactions.

4. The financial aspects of the relationship was a mandatory consideration for the Tribunal. In particular, the Tribunal was required to consider the extent of any pooling of financial resources and the basis of any sharing of day-to-day household expenses. The Tribunal put its concerns about the maintenance of the separate accounts to the parties and noted their explanations.  The Tribunal expressed concern that the Sponsor did not have knowledge of the amount in the joint bank account. The parties’ explanations were not sufficient to satisfy the Tribunal’s concerns.  In the circumstances, it was open to the Tribunal to find that the joint account was only opened for the purpose of the migration application and did not reflect the parties’ desire to share financial resources. 

5. There is no error in the manner in which the Tribunal considered the financial aspects of the relationship and as stated above, its findings were open to it on the evidence and material before it, and for the reasons it gave.

6. Accordingly, Ground 4 is not made out.

Ground 5

1. Ground 5 contends that the Tribunal erred in relation to the evidence given by the parties about wills that had been prepared nominating each other as beneficiaries. 

2. The Tribunal noted that the applicant had informed it that he had never had a will before because he had no assets.  However, the Tribunal noted that the applicant had no assets at the time the will was prepared, nor did he have a job. The Tribunal noted that the applicant said that his mother had suggested she would transfer property to him, but that the transfer had not happened to date. 

3. In the circumstance, the Tribunal found the applicant had no more assets at the time the will was drafted than at any other time, when he felt no need to prepare a will.  The applicant informed the Tribunal that his wife did not have a will previously either. The applicant informed the Tribunal that their previous migration agent had recommended they draft a will. The Tribunal found the purpose of arranging the wills to be unclear, and ultimately formed the view that the sole purpose for doing so was for establishing evidence for their migration application. The Tribunal did not find that the joint wills showed the couples' willingness to share their finances. 

4. I do not fully understand the nature of the complaints made by the applicant about those findings, which were plainly open to the Tribunal on the evidence and material before it, and for the reasons it gave. The Tribunal considered in some detail the various financial arrangements put forward by the parties. The evidence in relation to their wills was simply one aspect of that evidence. Ultimately, the Tribunal was satisfied that the couple had a joint bank account, and that they had made some effort to share their finances. 

5. However, having regard to the concerns that it had expressed and discussed with the applicant, the Tribunal found that those steps were taken for the purpose of establishing evidence for the migration application, and were not taken as part of the parties’ genuine commitment to each other and the relationship. 

6. Accordingly, Ground 5 is not made out.

7. Otherwise, the Tribunal's decision records makes clear that the Tribunal was aware of the statutory regime by which it was required to consider whether the parties were in a genuine spousal relationship.  The Tribunal found that the parties had provided untruthful evidence about the circumstances of their meeting, and found the parties to have given inconsistent oral evidence about the development of the relationship. 

8. The Tribunal also expressed concern about the speed with which the relationship had developed, noting that the applicant had proposed to the Sponsor less than three weeks after they met. The Tribunal found the inconsistencies in their oral evidence of the accounts of their relationship to be substantial, leading it to conclude that they had not been truthful in their evidence.

9. The Tribunal found that the parties had simply fabricated an account rather than describe the circumstances of how their relationship was formed, if they existed. The Tribunal found that the lack of truthfulness and the haste with which the parties made a decision to register the marriage suggested that the marriage was arranged solely for visa purposes. 

10. Nevertheless, the Tribunal went on, as it was obliged to do, to consider the matters identified in reg.1.15A of the Regulations in determining whether the parties were in a genuine spousal relationship. The Tribunal had regard to the mandatory matters referred to in reg.1.15A, being the financial aspects of the relationship, the nature of the parties' household, the social aspects of the relationship and the nature of the parties' commitment to each other.

11. The Tribunal put its concerns about the claims made by the applicant to the parties at the hearing, and noted their responses. The Tribunal accepted that the parties were validly married, and that they had made some effort to establish evidence in support of their claims.  However, the Tribunal found that such evidence was established for the purpose of the migration application, and found that the parties had not been truthful in their evidence, having regard to the substantial inconsistencies in their oral evidence to the Tribunal.  The Tribunal also formed the view that the parties did not have adequate knowledge about each other, further indicating their lack of commitment to the relationship.

12. In relation to the documents provided in support of the application, the Tribunal found that such documents would be equally available if the relationship was not a genuine one. The Tribunal did not consider that the presence of such documents overcame the concerns that it expressed.

13. The Tribunal concluded that it had regard to all aspects of the relationship, but was not ultimately satisfied that a genuine relationship existed. The Tribunal was not satisfied that the applicant and the Sponsor had a mutual commitment to a shared life together to the exclusion of all others. The Tribunal was also not satisfied that the relationship between them is genuine and continuing. 

14. In light of the Tribunal's findings, it concluded that the applicant did not meet cl.820.211(2) and accordingly, affirmed the decision under review.  As stated above, the Tribunal's finding were open to it on the evidence and material before it and for the reasons it gave, including its adverse credibility findings, which are a matter par excellence for the Tribunal (see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J). A credit finding is sound if it was “open to [the Tribunal] on the material, was based on rational grounds and was arrived at on consideration of matters that were logically probative of the issue of credibility” (see Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547).

Conclusion

1. A fair reading of the Tribunal's decision record makes clear that the Tribunal understood the claims being made by the applicant and explored those claims with the applicant and the Sponsor at a hearing, and had regard to all material provided in support. 

2. The Tribunal put its concerns to the applicant and the Sponsor about the evidence they had provided, and noted their various responses.  The Tribunal then made findings based on the evidence and material before it, which were open to it for the reasons it gave.  A fair reading of the Tribunal's decision record makes clear that the Tribunal reached its conclusions based on the findings made by it, and to which it applied the correct law.

3. In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.

4. The Tribunal's decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no power to interfere.

5. The proceeding before this Court should be dismissed with costs.

I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate: 

Date:  14 March 2017