Alsaidat v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 381
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Alsaidat v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 381
File number(s): SYG 2551 of 2018 Judgment of: JUDGE MANOUSARIDIS Date of judgment: 20 May 2022 Catchwords: MIGRATION – application for remedies under s 476 of the Migration Act 1958 (Cth) (Act) in relation to decision made by the Administrative Appeals Tribunal affirming decision not to grant partner visa – whether applicant’s providing two documents recording an address constituted the giving of information for the purposes of s 359A(4)(b) of the Act – the providing of those documents constituted the giving of information – application dismissed. Legislation: Migration Act 1958 (Cth) ss 5CB, 5F, 347, 348, 349, 359A(1), 359A(4)(b), 360, 362A, 424A(3)(b), 476
Migration Regulations 1994 (Cth) reg 1.15A, Sch 2, cl 820.211(2)(a)
Cases cited: Ariyagama v Minister for Immigration & Multicultural Affairs [2002] FCAFC 114
Hayes v Willoughby [2013] UKSC 17
Minister for Immigration and Citizenship v Chamnam You [2008] FCA 241
NAZY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 744
NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195
News Ltd v South Sydney District Rugby League Football Club Ltd [2003] HCA 45
SZTGV v Minister for Immigration and Border Protection [2015] FCAFC 3
Zeng v Minister for Immigration and Border Protection [2016] FCA 627
Division: General Number of paragraphs: 28 Date of last submission/s: 16 May 2022 Date of hearing: 13 May 2022 Place: Sydney Counsel for the Applicant: Mr O Jones, by video Solicitor for the Applicant: Firmstone & Associates Counsel for the First Respondent: Mr G Johnson, by video Solicitor for First Respondent: HWL Ebsworth Lawyers ORDERS
SYG 2551 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AMJAD ALI AHMAD ALSAIDAT
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE MANOUSARIDIS
DATE OF ORDER:
20 MAY 2022
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The applicant pay the first respondent’s costs set in the amount of $7,467.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION
The question that arises on this application for remedies under s 476 of the Migration Act 1958 (Cth) (Act) is whether the information I identify later in these reasons is “information . . . that the applicant gave for the purpose of the application for review” within the meaning of s 359A(4)(b) of the Act.
BACKGROUND
On 27 May 2015 the applicant, a citizen of Jordan, applied for a Partner (Temporary) (class UK) (subclass 820) visa (Partner visa) and a Partner (Residence) (class BS) (subclass 801) visa. To have been entitled to be granted a Partner visa the applicant had to satisfy, among other things, the criterion specified in cl 820.211(2)(a) of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations). That paragraph requires that at the time of application for a Partner visa the applicant is the spouse or de facto partner of an Australian citizen. Subsection 5F(1) of the Act provides that a person is the “spouse” of another person if, under s 5F(2) of the Act, the two persons are in a “married relationship”. Under s 5F(2) of the Act, persons are in a “married relationship” if:
(a)they are married to each other under a marriage that is valid for the purposes of the 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 live together, or do not live separately and apart on a permanent basis.
Subsection 5F(3) of the Act provides that 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 have made provision, and this is to be found in reg 1.15A of the Regulations. Subregulation 1.15A(2) of the Regulations provides that, when considering an application for, among other subclasses of visas, a Partner visa, the Minister must consider all the circumstances of the relationship, including the matters set out in reg 1.15A(3) of the Regulations. Those matters are:
(a)the financial aspects of the relationship, including any joint ownership of real estate or other major assets; any joint liabilities; the extent of any pooling of financial resources, especially in relation to major financial commitments; whether one person in the relationship owes any legal obligation in respect of the other; and the basis of any sharing of day-to-day household expenses; and
(b)the nature of the household, including any joint responsibility for the care and support of children; the living arrangements of the persons; and any sharing of the responsibility for housework; and
(c)the social aspects of the relationship, including whether the persons represent themselves to other people as being married to each other; the opinion of the persons’ friends and acquaintances about the nature of the relationship; and any basis on which the persons plan and undertake joint social activities; and
(d)the nature of the persons’ commitment to each other, including the duration of the relationship; the length of time during which the persons have lived together; the degree of companionship and emotional support that the persons draw from each other; and whether the persons see the relationship as a long-term one.
The applicant claimed he was married to the sponsor, an Australian citizen.
On 21 December 2016 a delegate of the first respondent (Minister) refused to grant the applicant a Partner visa because the delegate was not satisfied the applicant is the spouse or de facto partner of the sponsor within the meaning of s 5F or s 5CB of the Act. In arriving at this conclusion the delegate noted the applicant “provided no evidence to support or demonstrate that [the applicant] and [the sponsor] either live together or do not live separately and apart on a permanent basis”.[1]
[1] CB103
On 10 January 2017 the applicant applied to the second respondent (Tribunal) for review of the delegate’s decision. On 7 February 2018 the applicant’s migration agent lodged a request for documents under the Freedom of Information Act 1982 (Cth).[2] The applicant’s migration agent withdrew that request, and instead requested access to documents under s 362A of the Act. The Tribunal confirmed that request by email sent on 8 February 2018.[3] On the same day the applicant’s migration agent sent to the Tribunal an email attaching a document titled “Consent to release personal information – MR Division” (Consent Form), signed by the applicant, by which the applicant confirmed his consent to the release to the applicant’s migration agent of personal information about the applicant.[4] In the Consent Form the applicant specified an address at Dulwich Hill (DH address) as his address. Both the applicant and the sponsor, however, had submitted to the Tribunal statutory declarations in which they both gave an address at Seven Hills (Seven Hills address) as their address.[5]
[2] CB138
[3] CB143
[4] CB146
[5] CB156-161
The applicant appeared before the Tribunal on 22 March 2018 to give evidence and present arguments.[6] At the hearing the applicant provided a photo card identification (photo card) which also showed his address was the DH address.[7]
[6] CB182
[7] CB184
At the hearing the Tribunal “queried” the applicant why the photo card and the Consent Form indicated he was living at the DH address. The applicant said he had told his agent that the address was wrong.[8] On 28 March 2018 the applicant’s agent sent an email to the Tribunal attaching a letter from a bank dated 27 March 2018 to the applicant at the Seven Hills address. The letter confirmed the applicant’s account details which included the Seven Hills address as the applicant’s address.[9]
TRIBUNAL’s DECISION
The Tribunal concluded that the weight of the evidence did not support a finding that the applicant and sponsor are in a genuine and continuing relationship.[10] One of the questions the Tribunal considered was the state of evidence in relation to whether the applicant and sponsor lived together. The Tribunal made the following observations and findings on that question:[11]
The applicant provided photo card identification to the hearing officer at the start of the Tribunal hearing on 22 March 2018 indicating that his residential address is [the DH address]. The applicant also provided consent to release personal information document to the Administrative Appeals Tribunal for release of information to his agent dated 8 February 2018. The applicant's address on the consent form states his address as [the DH address]. The Tribunal queried with the applicant why the photo card and consent form indicated that he was living at [the DH address]. The applicant told the Tribunal that he had told his agent the address was wrong. Neither the applicant nor his agent provided any supportive evidence to the Tribunal to indicate that this had actually occurred. The Tribunal is of the view it is the personal responsibility for the applicant to provide the correct details when completing the consent to release personal information form. The applicant provided information to the Tribunal on 28 March 2018 that he had changed his photo identification card address to the sponsor's address at [the Seven Hills address] after the resumption of the adjourned hearing held on 22 March 2018. The applicant’s evidence during the hearing is that he first moved to live with the sponsor at [the Seven Hills address] in July 2015. The Tribunal places no weight upon the applicant changing his address after the Tribunal hearing because it is of the view this was only done by the applicant to strengthen his case for the grant of the visa. Based on the evidence provided there is an absence of evidence to substantiate that the parties have ever lived together in the same household. The Tribunal finds that the applicant and sponsor do not live together.
[8] CB228, [24]
[9] CB201
[10] CB233, [42]
[11] CB227-228, [24]
GROUND OF APPLICATION
The applicant relies on the following ground of application:
The Second Respondent (Tribunal) made a jurisdictional error by failing to put information to the Applicant in accordance with s 359A of the Migration Act 1958 (Cth) (Act).
Particulars
a. The Tribunal found at paragraph 24 of its decision that the Applicant had provided photo card identification to the hearing officer at the start of the Tribunal hearing on 22 March 2018 indicating that his residential address was . . . (Dulwich Hill address).
b. The Tribunal further found at paragraph 24 of its decision that the Applicant had provided a consent to release personal information document to the Tribunal for the release of information to his agent dated 8 February 2018 which also stated his address as the Dulwich Hill address.
c. The Tribunal further found at paragraph 24 of its decision that the Applicant and the sponsor do not live together at . . . (Seven Hills address).
d. The Tribunal found at paragraphs 27, 39 and 42 of its decision that it was not satisfied the parties were in a genuine and continuing relationship including by reference to its finding that the Applicant and the sponsor do not live together at the Seven Hills address.
e. The Dulwich Hill address was “information” within the meaning of s 359A(1)(a) of the Act as by its terms it involved a rejection, denial or undermining of the Applicant [sic] case (SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 at [15]);
f. The Dulwich Hill address was and would have been the reason or part of the reason for the Tribunal affirming the Delegate's decision for the purposes of s 359A(1)(a) of the Act;
g. The Dulwich Hill address was not information which the Applicant gave for the purposes of the application to the Tribunal for review within the meaning of s 359A(4)(b) of the Act given the context in which the information was elicited from the Applicant being the provision of photo identification and the consent to release information to his agent ([Z]eng v Minister for Immigration and Border Protection [2016] FCA 627 at [7], citing inter alia SZTGV v Minister for Immigration and BorderProtection (2015) 229 FCR 90 at [24]);
h. The Tribunal did not observe s 359A(1)(b), 359A(1)(c), 359A(2) or 359A(3) of the Act in relation to the information.
The Minister accepts, and for the purpose of these reasons I will assume, that the DH address the applicant conveyed to the Tribunal first, by his agent sending the Consent Form to the Tribunal and, second, by the applicant providing the photo card to the Tribunal at the hearing, constituted “information” to which s 359A(1) of the Act applied. The Minister also accepts that the Tribunal did not, in relation to the DH address, follow the procedure provided for by s 359A(1) of the Act. The Minister submits, however, the Tribunal was not obliged to follow that procedure because by the applicant conveying the DH address to the Tribunal the applicant “gave” the DH address “for the purpose of the application for review” within the meaning of s 359A(4)(b) of the Act.
Parties’ submissions
In paragraph (g) of the particulars to the ground of application the applicant appears to accept he “gave” the DH address to the Tribunal, but submits he did not do so for the purpose of the application for review. The basis of that claim appears to be the context in which the applicant provided the DH address to the Tribunal, namely, the Tribunal’s having “elicited” the DH address from the applicant. In his counsel’s written submissions, however, the applicant appears to submit that the circumstances in which the applicant provided the DH address did not constitute the giving of information to the Tribunal, even if it could be said the applicant provided the DH address for the purpose of the review. The basis of that submission are the judgment of Pagone J in Zeng v Minister for Immigration and Border Protection,[12] the judgment of the Full Federal Court in SZTGV v Minister for Immigration and Border Protection,[13] and the contentions that the DH address “was peripheral to the matter at issue”, and “so tangential to the task being undertaken that it was not given by the Applicant for the purposes of the review under s 359A(4)(b) of the Act”.[14]
[12] Zeng v Minister for Immigration and Border Protection [2016] FCA 627
[13] SZTGV v Minister for Immigration and Border Protection [2015] FCAFC 3
[14] Submissions of the Applicant, [21]
The Minister, on the other hand, submits that the text of s 359A(4)(b) of the Act is broad, and the applicant’s providing the DH address in the circumstances in which he did answers the plain meaning of the words used in that paragraph. The Minister relies on the Full Federal Court in Ariyagama v Minister for Immigration & Multicultural Affairs holding that the primary judge in that case was correct that s 359A(4)(b) of the Act as it then stood “includes information given at any time up to the making of the decision of the” Migration Review Tribunal.[15] The Minister also relied on the judgment of Sundberg J in Minister for Immigration and Citizenship v Chamnam You.[16]
[15] Ariyagama v Minister for Immigration & Multicultural Affairs [2002] FCAFC 114, at [15]
[16] Minister for Immigration and Citizenship v Chamnam You [2008] FCA 241, at [15]-[16]
DETERMINATION
I will approach the determination of the competing submissions in two stages. First, I will construe the text of s 359A(4)(b) of the Act. Next, I will consider whether the judgments in Zeng, or SZTGV construe the text of s 359A(4)(b) of the Act, or otherwise make observations, that differ from my construction of s 359A(4)(b) of the Act.
Construction of s 359A(4)(b) of the Act
The first word to consider is “gave”, being the simple past tense of “give”. When used as a transitive verb, “give” implies a grammatical subject, object, and indirect object, and thus implies a person, some object, and another person; and “give” denotes the first mentioned person doing an act in relation to the object, such act consisting of the first mentioned person’s delivering, conveying, or handing over the object to the other person.
The grammatical object of “gave” in s 359A(4)(b) of the Act is “information”. That which “information” denotes, however, can exist both in material form (as in a document) or in immaterial form (as in a person’s mind). The “information” s 359A(4)(b) of the Act contemplates may be given by an applicant, therefore, includes information that exists both in a material form and in a form that is not material. In relation to information that exists in a material form, therefore, the applicant gives information when the applicant delivers or hands over to another person the medium on which the information is recorded. Where, on the other hand, the information is not in material form, the applicant may communicate that information by speech without first reducing the information in material form. Further, it may be that information exists in material form but the applicant gives the information in a wholly immaterial form by conveying the information through speech.
“Gave”, therefore, when used in relation to “information” in s 359A(4)(b) of the Act, denotes an applicant’s having delivered a document or some other medium that records information, or an applicant’s having conveyed information through speech. More generally, “gave”, when used in relation to “information”, simply means “conveyed”.
Next, it is necessary to consider the words “for the purpose of the application for review”. The central word is “purpose”. Although “purpose” has been said to denote a “protean concept”,[17] it may be taken that in s 359A(4)(b) of the Act “purpose” bears the meaning Gleeson CJ in News Ltd v South Sydney District Rugby League Football Club Ltd held “purpose” bears in s 4D and s 45 of the Trade Practices Act 1974 (Cth):[18]
Purpose is to be distinguished from motive. The purpose of conduct is the end sought to be accomplished by the conduct. The motive for conduct is the reason for seeking that end. The appropriate description or characterisation of the end sought to be accomplished (purpose), as distinct from the reason for seeking that end (motive), may depend upon the legislative or other context in which the task is undertaken.
[17] Hayes v Willoughby [2013] UKSC 17, at [9]
[18] News Ltd v South Sydney District Rugby League Football Club Ltd [2003] HCA 45, at [18]
When used in s 359A(4)(b) of the Act, therefore, “purpose” denotes the end for which the applicant must have given the information, that end being “the application for review”.
That, lastly, leaves the meaning of “the application for review”. That expression means the set of actions that consist of, or which are or may be associated with, the making of an application for review under s 347 of the Act, and the Tribunal reviewing such application under s 348 of the Act. The activities consist of the making of an application for review, the Tribunal’s determining such application by exercising the power under s 349 of the Act, and all other activities that may or must occur in the course of such review.
Thus, an applicant will have given information for the purpose of a review within the meaning of s 359A(4)(b) of the Act if the applicant conveyed information to any person, and if the end of the applicant’s doing so was any action that consisted of or was associated with an application for review the applicant had made under s 347 of the Act. This construction does not differentiate between actions that may be central or peripheral, important or tangential, to an application for review.
On this construction, the applicant’s providing to the Tribunal the Consent Form and photo card constituted the applicant’s giving of information; and the end the applicant sought in giving the information were actions that formed or were to form part of the applicant’s application for review. The end the applicant sought by giving the Consent Form was the release by the Tribunal to a person other than the applicant of documents the applicant requested under s 362A of the Act. That is an action that formed part of the application for review. The end the applicant sought in giving the photo card was to confirm that it was the applicant who had appeared before the Tribunal to give evidence and to present arguments in the hearing initiated under s 360 of the Act. That, too, is an action that formed part of the application for review.
Zeng and SZTGV
The justices of the Federal Court in Zeng and SZTGV accepted that, in principle, information an applicant conveyed orally to the Tribunal in answer to a question is capable of constituting information the applicant gave for the purpose of the application for review within the meaning of s 359A(4)(b) of the Act, and the equivalent provision in s 424A(3)(b) of the Act. But the justices in Zeng and SZTGV also accepted that, in certain contexts, it would not be open to characterise a visa applicant’s providing information in answer to the Tribunal’s questions as the giving of information for the purposes of s 359A(4)(b) of the Act.
The Full Federal Court in SZTGV referred to the judgment of Young J in NBKTv Minister for Immigration and Multicultural Affairs.[19] After noting that “different approaches to the scope of s 424A(3)(b) have been taken”,[20] the Full Federal Court then summarised the position as follows:[21]
It is apparent from the various approaches taken to s 424A(3)(b) that the question is ultimately one of fact. Consistent with the reasoning of Heerey J in VWBF and SZCJD, there is nothing in the text of s 424A(3)(b) which supports any distinction between information proffered by an applicant to the Tribunal of the applicant’s own volition or elicited from an applicant by the answering of the Tribunal’s questions. In either case, the applicant may have given information to the Tribunal. Despite this, not every answer by an applicant to a question from the Tribunal will involve the applicant giving information to the Tribunal. The nature of the information, of the question asked by the Tribunal and the applicant’s answer will all be relevant to determining whether s 424A(3)(b) is engaged.
[19] NBKTv Minister for Immigration and Multicultural Affairs [2006] FCAFC 195 , at [48]-[64]
[20] SZTGV v Minister for Immigration and Border Protection [2015] FCAFC 3, at [22]
[21] SZTGV v Minister for Immigration and Border Protection [2015] FCAFC 3, at [24]
The Full Federal Court did not further identify the context or contexts in which an applicant’s providing information would or may not properly be characterised as the giving of information for the purposes of s 359A(4)(b) or s 424A(3)(b) of the Act. It is apparent, however, from the grounds on which the Full Federal Court in SZTGV dismissed the appeal, the facts of the cases to which the Full Federal Court referred, and the facts in Zeng, that the determining factors in assessing whether an applicant “gave” information within the meaning of s 359A(4)(b) or s 424A(3)(b) of the Act are whether it can reasonably be found that the applicant gave the information voluntarily; and whether the applicant gave the information in circumstances where he or she can reasonably be taken to have vouched, or to have purportedly vouched for the truth of the information.
That is particularly apparent in Young J’s explanation in NBKT of Jacobson J’s having held in NAZY v Minister for Immigration and Multicultural and Indigenous Affairs[22] that the exemption in s 424A(3)(b) of the Act applies to information from a protection visa application which an applicant for review expressly adopts and puts forward as part of his or her application for review by the Tribunal, but does not apply to information provided by an applicant during questioning by the Tribunal member in the course of a hearing. Young J said the “rationale for this narrow approach to the exemption is that by giving the information to the Tribunal other than by way of response to questioning, the applicant is assumed to be aware of the significance of the information”.[23] It is also apparent from one of the grounds on which the Full Federal Court dismissed the appeal in SZTGV (emphasis added):[24]
. . . . . The relevant information, accordingly, was not question and answer 19 in the tourist visa application and the Amazon letters, but the appellant’s admission that the answer to question 19 was false and the Amazon letters were forgeries. The appellant gave that information to the Tribunal in his letter dated 7 June 2013. In stating in that letter that “I am ashamed to say the above information is true” the appellant admitted that the answer to question 19 was false and the Amazon letters were forgeries.
This conclusion does not involve construing an appellant’s answer to a question from the Tribunal in order to ascertain whether the appellant’s answers constitute giving information to the Tribunal. The appellant elected to provide submissions to the Tribunal dealing with issues set out in the decision record of the delegate. In so doing, the appellant gave to the Tribunal the information relevant for the purposes of s 424A(1), being his admissions of the falsity of the information he supplied as part of his tourist visa application.
. . . . The appellant was taking it upon himself to directly inform the Tribunal of his explanation for giving false information in his tourist visa application.
[22] NAZY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 744
[23] NBKTv Minister for Immigration and Multicultural Affairs [2006] FCAFC 195, at [50]
[24] SZTGV v Minister for Immigration and Border Protection [2015] FCAFC 3, at [50]-[52]
There is nothing in the circumstances in which the applicant provided to the Tribunal the Consent Form or the photo card that could suggest the applicant did not provide these documents, and therefore did not convey the DH address, voluntarily. The applicant undertook these actions on his own initiative, first, to permit his agent to have access to documents held by the Tribunal that were personal to the applicant; and second to permit the applicant to prove his identity at the hearing before the Tribunal. The Tribunal did not require the applicant to request his agent have access to documents; nor is there evidence the Tribunal demanded the applicant prove his identity by submitting the photo card, it being open to the applicant to prove his identity by some other way. Further, there is nothing in the circumstances in which the applicant provided the Consent Form or the photo card to the Tribunal that could suggest the applicant did not purport to vouch for the truth or accuracy of the information contained in those documents, and in particular, that the DH address was the applicant’s address.
I am therefore satisfied the applicant “gave” to the Tribunal the DH address “for the purpose of the application for review” and, for that reason, the Tribunal was not required to apply to the DH address the procedure provided for in s 359A(4)(b) of the Act. The applicant, therefore, fails on the ground of application on which he relies.
DISPOSITION
I propose to order that the application be dismissed. Counsel agreed that costs should follow the event. I also propose, therefore, to order that the applicant pay the Minister’s costs set in the amount of $7,467.[25]
[25] Pursuant to the leave I granted at the hearing, on 16 May 2022 the lawyer for the Minister sent an email to my associate stating that the Minister would seek costs set in the scale amount, namely, $7,467.
I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis. Associate:
Dated: 20 May 2022
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