Ali v Minister for Immigration and Border Protection
[2021] FCCA 981
•22 June 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Ali v Minister for Immigration and Border Protection [2021] FCCA 981
File number(s): SYG 1164 of 2017 Judgment of: JUDGE EMMETT Date of judgment: 22 June 2021 Catchwords: MIGRATION – review of decision of Administrative Appeals Tribunal – whether Administrative Appeal Tribunal’s decision affected by jurisdictional error – whether Administrative Appeals Tribunal erred in finding the applicant and sponsor did not represent themselves as a married couple to others – whether Administrative Appeals Tribunal ignored evidence –whether Administrative Appeals Tribunal failed to properly consider all the evidence – whether Administrative Appeals Tribunal failed to actively and intellectually engage in consideration of the applicant’s claims – whether the Administrative Appeals Tribunal erred by applying an arbitrary standard of conduct – no jurisdictional error – application dismissed Legislation: Migration Act 1994 (Cth) ss 5F, 474
Migration Regulations 1994 (Cth) cll 801, 820
Cases cited: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593
ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174
BWC16 v Minister for Home Affairs [2018] FCA 1375
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; (2014) 309 ALR 67
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Citizenship v SZOCT [2010] FCAFC 159; 189 FCR 577
Tran v Minister for Immigration & Anor [2019] FCCA 2859
Number of paragraphs: 48 Date of last submission/s: 17 November 2020 Date of hearing: 17 November 2020 Place: Sydney Counsel for the Applicants: Mr O Jones Solicitor for the Applicants: Dobbie and Divine Immigration Lawyers Counsel for the Respondents: Mr T Reilly Solicitor for the Respondents: Australian Government Solicitors
SYG 1164 of 2017 BETWEEN: SYED ZULDIQAR ALI
First ApplicantSYED SAIM ABSAR ALI RIZVI
Second ApplicantSYED SZRAM ABBAS RIZVI
Third ApplicantSYEDA ABHIA RUBAB
Fourth ApplicantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
This is an application for judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 20 March 2017 affirming a decision of a delegate of the First Respondent refusing the first named applicant (‘the Applicant’) a Partner (Temporary) (Class UK) (Subclass 820) visa; and affirming the decision of a delegate of the First Respondent refusing the Applicant a Partner (Residence) (Class BS) (subclass 801) visa.
The Applicant is a citizen of Pakistan who arrived in Australia on 12 June 2007 as the holder of a student visa.
The second, third and fourth applicants are the minor children of the Applicant whose applications are dependent on those of the Applicant.
On 5 December 2011, the Applicant applied for Partner (Temporary) and a Partner (Residence) visas on the basis of his relationship with the Sponsor.
On 24 October 2013, a delegate refused to grant the Applicant either of the visas.
In relation to the Partner (Temporary) visa, the delegate was not satisfied that the Applicant and Sponsor were in a genuine spousal relationship. In relation to the Partner (Residence) visa, the delegate was not satisfied that the Applicant met the criteria set out in cl.820.211 in that the delegate was not satisfied that at the time of the visa application and at the time of the delegate’s decision, the Applicant was the spouse or de facto partner of an Australian citizen, being the Sponsor.
On 12 November 2013, the applicants applied to the then Migration Review Tribunal (now Administrative Appeals Tribunal) for review of the delegate’s decisions.
On 24 February 2015, the then Migration Review Tribunal affirmed the delegate’s decision.
On 2 June 2016, the Applicants filed an application for judicial review of the decision of the Migration Review Tribunal.
On 24 June 2016, the Federal Circuit Court remitted the matter by consent to the Administrative Appeals Tribunal for determination according to law.
On 14 February 2017, the Applicant appeared before a differently constituted Administrative Appeals Tribunal and provided further supporting material to that Tribunal, including statutory declarations from friends and family of the Applicant and Sponsor. The Tribunal also received oral evidence from the Sponsor. Further material was provided subsequent to that hearing.
On 20 March 2017, the Tribunal affirmed both decisions of the delegate refusing the Applicants a subclass 820 visa and a subclass 801 visa.
The decision of the Tribunal is accurately summarised in the written submissions of counsel for the first respondent as follows:
“Subclass 820 visa (CB 1507-1521)
8. The Tribunal accepted that the applicant and sponsor were validly married: [19]. The Tribunal then considered the factors in reg 1.15A of the Regulations.
9. Financial Aspects: The Tribunal considered the financial aspect of the parties’ relationship. The Tribunal noted the evidence of the applicant in relation to the sponsor’s income, their bank statements and their rent: [24], [26]. The Tribunal put to the applicant comments made by the sponsor during the site visit that he did not really make contributions to the household and that his belongings were packed in a suitcase: [25], [27]. The Tribunal noted further that there were no bank statements that the applicant paid for ay day-to-day purchases, rent or bills: [28]. On the material and evidence provided at the hearing, the Tribunal was not satisfied that the applicant and sponsor, earlier in their relationship.at the time of the application, pooled their financial resources: [30]-[38].
10.Nature of the household: At the time of their marriage, the applicant and sponsor lived with the sponsor’s two sons and their friend, and were, at the time of the Tribunal’s decision, living with the applicant’s ex-wife and children: [39]-[43]. However, the Tribunal was not satisfied that the sponsor had any role, aside from a limited role, in the care and responsibility of the applicant’s children: [44]. In a site visit, the sponsor told Departmental officers that she was unaware of where the sponsor kept his work uniforms, and of the custody arrangements for, or visitation rights of the applicant’s children. The Tribunal considered that had the applicant and sponsor been in a genuine and continuing relationship, the sponsor would have been aware of his daily visits to the house of his ex-wife to visit his children and pick up his uniforms: [45]-[46].
11. Social aspects: The applicant and sponsor initially wished to call a number of witnesses in support of the application. However, the applicant’s representative agreed that the Tribunal could not consider the statutory declarations provided: [47]-[48]. The applicant gave evidence that the sponsor’s sons were unaware of the marriage and did not attend the wedding. The sponsor had not though to invite her sons to the wedding, as they had their own lives: [49], [53]. The Tribunal accepted that the applicant may need to take his children to school, but did not accept it as plausible that he was required to have an ongoing relationship with his ex-wife, including returning to have breakfast with her every morning: [51]-[52]. On the material before it, the Tribunal was not satisfied that the applicant and sponsor represented themselves to others in their family as being married to each other: [54]-[55].
12. Nature of commitment to each other: The applicant gave evidence that he did not attend the sponsor’s son’s funeral, and that she did not attend community events with him: [57]-[58]. After being asked by the Tribunal about the applicant’s intentions in marrying the sponsor, both the applicant and sponsor gave evidence that they had not married for the purpose of getting the applicant a permanent visa to Australia: [59]-[63]. The Tribunal was not satisfied on the balance of material before it that the applicant and sponsor provided significant companionship and emotional support to each other: [66].
13. On the basis of the material provided, the Tribunal was not satisfied that the parties were in a spousal relationship, and affirmed the delegate’s decision: [67]-[72].
Subclass 801 visa (CB 1529-1532)
14. The issue before the Tribunal was whether the applicant was the holder of a Subclass 820 visa as required by cl 801.221 of the Regulations: [8]-[10]. The applicant gave evidence that he did not, and had never held a Subclass 820 visa: [11]. As such, the Tribunal found that the applicant did not meet the criteria for the grant of the Subclass 801 visa, and affirmed the delegate’s decision: [12]-[17].”
The Applicant concedes there is no issue of statutory interpretation in the present case. The relevant legislation that applied at the time of the Applicant’s application and is accurately summarised in the written submissions of the solicitor for Applicant as follows:
“5. Clause 820.211 is the critical provision in the present case. It has not been significantly amended since the Applicants applied for the 820 visa on 5 December 2011. Indeed, the only amendments made between 5 December 2011 and the current time were some purely formal amendments made in 2915 (see item 2 (zzt) in Part 1 and items 286 to 290 in Part 7 of Sch 1 to the Migration Amendment (Redundant and Other Provisions) Regulations 2014 (Cth)). Those amendments do not apply in the present case, as the application for the visas was made before 22 march 2014 (see item 2801 in Part 28 of Sch 13 to the Regulations).
6. It is appropriate, therefore, to consider cl 820.211 as it existed on 5 December 2011. Clause 820.21 was headed “Criteria to be satisfied at time of application:. Clause 820.211 relevantly provided:
(1) The applicant:
…
(b) meets the requirements of subclause (2)…
(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
…
(c) the applicant is sponsored:
(i) if the applicant’s spouse or de facto partner has turned 18 – by the spouse or de facto partner; …
7. Expressions in the Regulations have the same meaning as those in the Act: s 13(1)(b) of the Legislation Act 2003 (Cth). Relevantly for present purposes, the expression “spouse” is defined by s 5F of the Act. The definition was recently amended in relation to same sex marriage: items 35 and 36 in Sch 3 to the Marriage Amendment (Definition and Religious Freedoms) Act 2017 (Cth) (2017 Act). The amendments, while not relevant to the present case, appear to apply without limitation according to the date of an application for a visa (see item 10 of Part 3 of Sch 4 to the 2017 Act).
8. The Applicants will, therefore, refer to s 5F of the Act in its present form. It relevantly reads:
5F Spouse
(1) For the purposes of this Act, a person is the spouse of another person (whether of the same sex or a different sex) 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 a married couple 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.
(3) The regulations may make provision in relation to the determination of whether one or more of the conditions in paragraphs (2)(a), (b), (c) and (d) exist. The regulations may make different provision in relation to the determination for different purposes whether one or more of those conditions exist.
9. The regulations referred to in s 5F(3) of the Act are reg 1.15A. Mercifully, reg 1.15A has not been amended since 2009. It relevantly provides:
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.”
At the commencement of the hearing, leave was granted to the applicants to rely on an Amended Application in the following terms:
Grounds of Amended Application
1.“The Second Respondent failed to lawfully exercise its jurisdiction to review the first decision because it failed to consider documents of central importance to its consideration of the matters that it had to consider in r.1.15A(3)(c) of the Migration Regulations 1994.1.The Second Respondent in its first decision dated 20 March 2017 made a jurisdictional error in relation to whether the First Applicant and the sponsor represented themselves to others in the family for the purposes of reg 1.15A(3)(c)(i) of the Migration Regulations 1994 (Cth).
Particulars
(A)(a) The Tribunal stated at [54] of the first decision that it was not satisfied that the First Applicant and his sponsor, Ms Naomi Costa, represent themselves to others in the family as being married to each other.
(B) The Tribunal failed to consider the following statutory declarations from family members of the sponsor that were provided by the First Applicant to the Tribunal:•Barbara Devow, the sponsor’s mother, dated 28 September 2016.•Martin Costa, brother of the sponsor, dated 1 September 2016.•Lachlan Lawrence Costa, son of the sponsor, dated 22 September 2016.•Daniel Ramon Costa, son of the sponsor, dated 20 January 2017.•Allira Ruth Costa, daughter of the sponsor, dated 20 January 2017.(b) The Second Respondent was required not to ignore important evidence or otherwise to fail to give proper consideration to, in the sense of active intellectual engagement with, the Applicants’ case;
(c) The Second Respondent overlooked or failed to engage with the following evidence put forward by the Applicants:
(i) Statutory declaration of Martin Costa, brother of the sponsor, made on 14 June 2013;
(ii) Statutory declaration of Daniel Costa, son of the sponsor, made on 3 June 2013;
(iii) Statutory declaration of Travis Costa brother of the sponsor, made on 19 june 2013;
(iv) Statutory declaration of Lawrence Urban Costa, brother of the sponsor, made on 19 June 2013;
(v) Statutory declaration of Allira Ruth Costa, daughter of the sponsor, made on 20 January 2017;
(vi) Statutory declaration of Daniel Ramon Costa, son of the sponsor, made on 20 January 2017;
(vii) Statutory declaration of Lachlan Lawrence Costa, son of the sonsor, made on 22 September 2016; and
(viii) Statutory declaration of Barbara Decow, mother of the sponsor, made on 28 September 2016;
(d) The Second Respondent’s error was material to the result.
2. The decision of the Second Respondent is vitiated by the apprehended bias or actual bias:Particulars:(A) The decision of the Second Respondent is vitiated by apprehended bias or actual bias:(B) The Tribunal stated at [54] of the first decision:54. The Tribunal considers that where a couple agreed to marry and are planning to live together with other members of the family it would be expected that they would invite family members and other friends to the wedding ceremony and that other members of the household would comment on or congratulate them on their marriage. The applicant gave evidence that the sons had not commented on the wedding or congratulated them at the time. It notes that they gave evidence that they only had two people as witnesses to the wedding. The Tribunal is not satisfied that the couple represent themselves to others in the family as being married to each other.(C) A reasonable person would apprehend bias by the Member, or conclude that there was actual bias by the member, because the member imposed her own views of how families should behave in relation to marriage.2.The Second Respondent in its first decision dated 20 March 2017 made a jurisdictional error by applying an arbitrary standard of conduct in relation to the wedding of the First Applicant and the sponsor.
(a)The Second Respondent was required by the law of legal unreasonableness not to impose an arbitrary standard of conduct in relation to the First Applicant and the Sponsor;
(b)The Second Respondent found at paragraph 54 of its decision that with respect to the wedding of the First Applicant and the sponsor:
(i)They did not invite family members and other friends to the wedding ceremony;
(ii)Other members of the household did not comment on or congratulate them on their marriage; and
(iii)They had only had two people as witnesses to the wedding;
(c)By doing so, the Second Respondent applied an arbitrary standard;
(d)The Second Respondent’s error was material to the result.
3. The Tribunal, in making the second decision, took into account an irrelevant consideration or otherwise erred in the exercise of its jurisdictionParticulars:(A) As the first decision was not made lawfully, the matter is required to be remitted for consideration.(B) A precondition to the making of the second decision (that is, a valid decision to refuse the Applicants’ application for Partner (temporary) (Class UK) visas) did not exist.(C) Therefore the Tribunal had no jurisdiction to embark on it consideration of whether or not the Applicants met the criteria for Partner (Residence) (Class BS) visa.3. The Second Respondent’s second decision dated 20 March 2017 should be quashed due to the invalidity of the Second Respondent’s first decision dated 20 March 2017.
(a) The Second Respondent’s second decision found at paragraphs 12 and 14 that the Applicants did not hold a particular class of visa;
(b) The Applicants did not hold that class of visa by virtue of the Second Respondent’s first decision;
(c) Upon the Second Respondent’s first decision being held invalid for jurisdictional error, it followed that the Applicants could, following a decision by the Second Respondent on remittal, come to hold the relevant visa;
(d) As a result, the Second Respondent’s second decision should also be quashed.”
Ground One
In its essence, Ground One claims that the Tribunal erred because it ignored evidence submitted by family members of the Sponsor or failed to actively intellectually engage with the evidence. The Applicant identified eight statutory declarations as particulars of that allegation.
Those statutory declarations were referred to by the Tribunal as follows:
“With the application for the visa and the application for the review by this Tribunal the applicant has submitted a number of statutory declarations attesting to the relationship being genuine. These include a statutory declaration by the ex-wife of the applicant. Some of these are declarations by members of the sponsor’s family who live in remote communities and have spent limited time with the applicant and the sponsor. There are also a number of photos of the applicant and the sponsor together in social situations. The Tribunal puts limited weight on these declarations as evidence of the couple representing themselves to others as being in a spouse relationship. However, it puts more weight on other evidence provided about the relationship.”
The Tribunal noted that there were a number of proposed witnesses prior to the hearing. However, all had provided statutory declarations and, ultimately, the Applicant agreed that it was not necessary for the Tribunal to contact the witnesses.
The substance of the statutory declarations relied on by the Applicant as identified in the Applicant’s written submissions is as follows:
“(a) Statutory declaration of Martin Costa, brother of the sponsor, made on 14 June 2013, "I first met Ali on Christmas Day of 2011. He and my sister, Naomi; her son, Daniel; and myself attended Christmas lunch at my Auntie's house" (CB 458; see also CB 664);
(b) Statutory declaration of Daniel Costa, son of the sponsor, made on 3 June 2013, "In August 2011, when my mother and Ali were married, he moved into my house" (CB 454);
(c) Statutory declaration of Travis Costa, son of the sponsor, made on 13 June 2013, "...in August 2011, after they were married, Ali came to live with us in Wanguri", with an earlier reference to Wanguri being in Darwin (CB 460);
(d) Statutory declaration of Lawrence Urban Costa, brother of the sponsor, made on 19 June 2013, "I have visited them on several occasions at my nephew's house in Darwin" (CB 456);
(e) Statutory declaration of Allira Ruth Costa, daughter of the sponsor, made on 20 January 2017, "I last saw Syed in 2015 around August, when he and my mother came to stay with me at my house" (CB 652);
(f) Statutory declaration of Daniel Ramon Costa, son of the sponsor, made on 20 January 2017, "I have not seen Syed since August 2015, when he was in Darwin" (CB 655);
(g) Statutory declaration of Lachlan Lawrence Costa, son of the sponsor, made on 22 September 2016, "They lived at my brothers house in Darwin and I seen him few times when I would come visit my mother. In January 2012, they moved to Cairns and I have seen him few times throughout the years" (CB 660) and
(h) Statutory declaration of Barbara Devow, mother of the sponsor, made on 28 September 2016, "They would visit me regularly from Cairns" (CB 667)”.
The Tribunal makes clear in its decision record that it was aware of those statutory declarations. However, the Tribunal gave the statutory declarations limited weight as evidence of the Applicant and Sponsor representing themselves to others as being in a genuine spousal relationship. The Tribunal stated that it placed more weight on other evidence provided about the relationship. The Tribunal noted that some of the Sponsor’s family members who had provided statutory declarations lived in remote communities and had spent limited time with the Sponsor and the Applicant.
In support, the Applicant referred to the Full Court of the Federal Court of Australia in Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; (2014) 309 ALR 67 at (ALR [54]) per Katzmann, Griffiths and Wigney JJ:
“…
That is because, as his Honour also pointed out (at [98]), the Tribunal can fail to exercise its jurisdiction or fail to consider a claim in a number of different ways, including by ignoring evidence that is important to a claim, or ignoring evidence that, having regard to the course of its decision-making, acquires importance to the exercise of its jurisdiction. Some cases, including the category of case just referred to, may not comfortably fall on either side of the supposed claims/evidence divide, yet the error in ignoring the material may be serious and go to the exercise of the Tribunal’s functions. We respectfully agree with Robertson J’s analysis.”
The Tribunal’s reasons make clear that the Tribunal did not disregard the statutory declarations. Rather, it attributed the contents of the statutory declarations limited weight because of the limited time spent by the deponents with the Applicant and the Sponsor.
In relation to statutory declaration (a), counsel for the Applicant submitted that attending the lunch inferentially represented the Applicant and the Sponsor as a married couple. I do not accept that inference. The deponent was simply describing when and where he first met the Applicant. There is no inference to be drawn from that statutory declaration that the Applicant and the Sponsor were in a genuine spousal relationship and that this first meeting by the deponent with the Applicant was evidence of that genuine spousal relationship.
In relation to statutory declarations (b), (c), (e), (f) and (g) of various children of the Sponsor, they do no more than assert times and places where they encountered the Applicant and where, from time to time to their knowledge, he resided. None mentions observations of the genuineness of the spousal relationship and in fact each discloses the limited contact each had with the Applicant.
The Applicant told the Tribunal that at the time of his marriage to the Sponsor he moved into a house which was rented by a son of the Sponsor. This residence was shared with the Sponsor’s two sons and a friend of one of the sons. At the time of the Tribunal’s decision, the Applicant, the Sponsor, the Sponsor’s ex-wife and their children shared different accommodation. The Tribunal accepted that the Sponsor was providing some care for the children. The Tribunal found that the Sponsor had a limited role in the care and responsibility of the Applicant’s children. In the circumstances, the Tribunal’s finding that members of the Sponsor’s family lived in remote communities and had spent limited time with the Applicant and the Sponsor was open to it on the evidence and material before it.
In relation to statutory declaration (d), the Sponsor’s brother stated no more than that he had visited the Applicant and the Sponsor on several occasions at his nephew’s house in Darwin. The deponent does not elaborate on his observations of the relationship between the Sponsor and the Applicant.
Statutory declaration (h) by the mother of the Sponsor states that the Sponsor and the Applicant would visit her regularly from Cairns. The mother declared on 28 September 2016 that she had not seen the Applicant since Christmas 2015. She stated that she believed the relationship to be continuing, although noted that they do not live together. Again, the declaration makes no mention of observations about the genuineness of the Applicant’s spousal relationship.
It is well established that the weight to be given to evidence is a matter for the Tribunal (see Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at [41]-[42] per Mason J). It is also well established that the Tribunal does not need to identify every item of evidence (see Applicant WAEE v Minister for Immigration ad Multicultural and Indigenous Affairs (2003) 236 FCR 593 at [46]).
In the circumstances of this case, I do not accept that it is open to infer that the statutory declarations were not considered at all by the Tribunal. The Tribunal did not find that evidence to be immaterial. The Tribunal noted that the Applicant had submitted a number of statutory declarations attesting to the relationship being genuine, including statutory declarations from the Applicant’s ex-wife and members of the Sponsor’s family. The Tribunal expressly stated that it placed limited weight on the declarations. As I have found above, the evidence before the Tribunal from family members was limited and did not address directly the genuineness of the spousal relationship between the Applicant and the Sponsor, although each deponent had the opportunity to do so.
In the circumstances, I do not accept that the Tribunal overlooked or ignored evidence or failed to engage with the evidence by giving a proper consideration in the sense of active intellectual engagement with the Applicants’ case. In light of that finding, Ground 1(d) which asserts that the second respondent’s error was material to the result is also not made out.
Accordingly, Ground 1 is not made out.
Ground 2
Ground 2 asserts that the Tribunal erred by imposing an arbitrary standard of knowledge upon what should have taken place at the wedding and therefore the Tribunal’s reasoning concerning the wedding was legally unreasonable.
In relation to this Ground, the Applicant relied on the following findings by the Tribunal at [54]:
“The Tribunal considers that where a couple agreed to marry and are planning to live together with other members of the family it would be expected they would invite family members and other friends to the wedding ceremony and that other members of the household would comment on or congratulate them on their marriage. The applicant gave evidence that the sons had not commented on the wedding or congratulated them at the time. It notes that they gave evidence that they only had two people as witnesses as the wedding. The Tribunal is not satisfied that the couple represent themselves to others in the family as being married to each other.”
In support, the Applicant’s counsel referred to BWC16 v Minister for Home Affairs [2018] FCA 1375 per Thawley J at [51] where Thawley J adopted the description of an arbitrary standard of religious knowledge by Jacobson J (in dissent) in Minister for Immigration and Citizenship v SZOCT [2010] FCAFC 159; 189 FCR 577 at [5]-[10], in support of the Applicant’s submission that the concept of an arbitrary standard of knowledge is not restricted to religious knowledge.
The Applicant submitted that the Tribunal made the following findings in relation to the wedding of the Applicant and the Sponsor:
(a) They did not invite family members and other friends to the wedding ceremony;
(b) Other members of the household did not comment on or congratulate them on their
marriage;
(c) They had only had two people as witnesses to the wedding.
The Applicant submits that those findings represent the imposition of an arbitrary standard of conduct by the Tribunal. The Applicant submits that the Tribunal proceeded on the basis that because it was not a wedding involving the presence of family, that family members did not comment on the wedding or congratulate the Applicant and the Sponsor and, that there were only two witnesses at the wedding, the wedding should not be accepted as genuine.
However, as counsel for the Second Respondent submitted, the Tribunal did not find the wedding not to be “genuine”. Rather, the Tribunal’s concerns about the wedding were among the matters that led it to find that it was not satisfied that the Applicant and the Sponsor had represented themselves to the others in the family as being married to each other. I accept the submission of counsel for the Second Respondent that this in turn was among the matters that led the Tribunal not to be satisfied that the relationship between the Applicant and the Sponsor was a genuine spousal relationship.
Paragraph [54] referred to by the Applicant is no more than the Tribunal’s summary of what occurred at the wedding. In particular, that the sons had not commented on the wedding or congratulated them at the time, nor had they been invited to the wedding and that there were only two witnesses at the ceremony. The Tribunal observed that a couple planning to marry and live together and required to represent themselves to others in the family as being married to each other, may have been expected to invite family members and other friends to the wedding ceremony; and to receive congratulations from other members of their household.
I do not accept that the Tribunal’s observation and lack of satisfaction was based on an application by the Tribunal of an arbitrary standard of conduct. As stated above, I accept the submission of counsel for the First Respondent that the Tribunal’s concerns about the wedding were among matters that led it to find that it was not satisfied that the Applicant and the Sponsor had represented themselves to others in the family as being married to each other. Therefore, it was part of the Tribunal’s reasoning in not being satisfied that the relationship was a genuine spousal relationship.
The Tribunal did not proceed on the basis that certain people must be invited to a wedding as applying to every person who genuinely intends to marry and live together. The circumstances in the case before this Court involved facts where the Applicant and the Sponsor were planning to live with other members of the family who were not invited to the wedding ceremony and who did not congratulate them on their marriage. I accept the submission of counsel for the Second Respondent that the Tribunal’s reasoning accords with common human experience concerning weddings and associated familial behaviour (see Tran v Minister for Immigration & Anor [2019] FCCA 2859 at [33-35]).
The Tribunal’s findings were open to it on the evidence and material before it, and for the reasons it gave. The Tribunal’s findings were based on rational grounds and arrived at after consideration of the relevant factors in relation to the issues for determination and in particular an assessment of the evidence relevant to the issue of the genuineness of the marriage, in the context of the relevant statutory framework referred to above. The Tribunal’s findings were not tainted by any failure to afford procedural fairness; reaching a finding without a logical or probative basis; or unreasonableness; and, were not without an intelligible foundation (see ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 at [83] per Griffiths, Perry, Bromwich JJ).
As stated by the Full Court of the Federal Court of Australia in AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133 at [41] per Kenny, Griffiths and Mortimer JJ:
The issue whether or not an administrative decision is affected by jurisdictional error requires a careful examination of the relevant statutory framework, with a particular emphasis on provisions which determine the decision-maker's powers, procedures, functions and obligations.
In the circumstances, I do not accept the Applicant’s submission that the Tribunal’s decision was legally unreasonable or illogical. I am satisfied that reasonable minds could differ concerning the Tribunal’s findings and reasoning, with the result that it is neither legally unreasonable nor illogical (see Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [124] and [131]).
In the circumstances, Ground 2 is not made out.
Ground 3
Ground 3 asserts that the Second Respondent’s second decision dated 20 March 2017 should be quashed due to the invalidity of the Second Respondent’s first decision dated 20 March 2017. The Second Respondent’s second decision found that the Applicant did not hold a particular class of visa by reason of the Second Respondent’s first decision. Counsel for the applicants submitted that, therefore, upon the Second Respondent’s first decision being held to be invalid because it is affected by jurisdictional error, the applicants could, following a decision by the Second Respondent on remittal, come to hold the relevant visa. Accordingly, the Applicant submits that the Second Respondent’s second decision should also be quashed.
Counsel for the applicants conceded that if the Tribunal’s first decision was found by this Court not to be invalid and not to be affected by jurisdictional error, the Tribunal’s second decision is valid and is, therefore, also not affected by jurisdictional error. The Tribunal’s first decision was not affected by jurisdictional error. In the circumstances, neither was the Tribunal’s second decision affected by jurisdictional error.
Accordingly, the first and second decisions of the Tribunal are privative clause decisions within s. 474 of the Migration Act 1958 (Cth). In the absence of jurisdictional error, they are decisions with which this Court cannot interfere.
The application should be dismissed with costs.
I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Emmett. Associate:
Dated: 22 June 2021
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