Amiri v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 868
•30 April 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Amiri v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 868
File number(s): MLG 127 of 2020 Judgment of: JUDGE LUCEV Date of judgment: 30 April 2021 Catchwords: MIGRATION – Judicial Review – decision of Administrative Appeals Tribunal – Partner (Provisional) (Class UF) (subclass 309) visa – partner in Afghanistan –whether constructive failure to exercise jurisdiction – whether irrelevant considerations taken into account – whether relevant considerations not taken into account – whether no evidence to support findings made – whether jurisdictional error Legislation: Migration Act 1958 (Cth) ss 5F, 368, 476, 478
Migration Regulations 1994 (Cth) reg 1.15A
Cases cited: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184, (2003) 236 FCR 593, (2003) 75 ALD 630
He & Ors v Minister for Immigration & Border Protection & Anor [2017] FCAFC 206; (2017) 255 FCR 41; (2017) 161 ALD 17
Javed v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCCA 2591
Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16; (2020) 274 FCR 646
Minister for Immigration & Border Protection v Pandey & Ors [2014] FCA 640; (2014) 143 ALD 640
Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1
Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16, (2010) 240 CLR 611, (2010) 84 ALJR 369, (2010) 266 ALR 367, (2010) 115 ALD 248
MZZUG v Minister for Immigration & Border Protection [2015] FCA 1151
NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167
Reddy v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 516
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300
Number of paragraphs: 51 Date of last submission: 12 April 2021 Date of hearing: 12 April 2021 Place: Perth Counsel for the Applicant: Mr S Bandara Solicitor for the Applicant: PLS Lawyers Counsel for the First Respondent: Mr J Papalia Solicitor for the First Respondent: Australian Government Solicitor Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 127 of 2020 BETWEEN: FATIMA AMIRI
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LUCEV
DATE OF ORDER:
30 APRIL 2021
THE COURT ORDERS THAT:
1.The originating application, filed 21 January 2020, as amended by an amended originating application filed 16 July 2020, be dismissed.
REASONS FOR JUDGMENT
JUDGE LUCEV
INTRODUCTION
On 21 January 2020 the applicant (“Mrs Amiri”) filed an application in this Court under s 476 of the Migration Act 1958 (Cth) (“Migration Act”). Mrs Amiri seeks review of a decision dated 16 December 2019 of the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively). The Tribunal affirmed a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“Minister”), to refuse to grant Mrs Amiri’s husband, Mr Amiri, a Partner (Provisional) (Class UF) (subclass 309) visa (“Partner Visa”).
Mrs Amiri, the sponsor for the purposes of the Partner Visa application, has standing to bring this application pursuant to s 478(a) of the Migration Act as she was the review applicant before the Tribunal.
Orders were made by consent of the parties in this Court on 28 May 2020. In accordance with this orders, Mrs Amiri filed an amended application for judicial review of the Tribunal Decision on 16 July 2020 (“Amended Judicial Review Application”).
The Amended Judicial Review Application contains two grounds of review, set out at [12] (ground 1) and [32] (ground 2) below.
Mrs Amiri filed written submissions in this Court on 16 July 2020 (“Amiri Submissions”). The Amiri Submissions do not deal with the grounds as they are presented in the Amended Judicial Review Application. In many respects the Amiri Submissions at [8]-[14] read like distinct grounds of review, each, bar one, alleging that the Tribunal “erred in law and/or fact”, and the exception at [13] alleging that the Tribunal “did not act in a way that was fair and just and … did not engage conscientiously” with certain matters. At hearing, the Court asked Mrs Amiri’s lawyer to specify which ground each of the paragraphs in the Amiri Submissions addressed: Transcript p 7. The Amiri Submissions are summarised as they relate to ground 1 at [17] below, and as they relate to ground 2 at [33] below.
JUDICIAL REVIEW APPLICATION
The relevant background to the Amended Judicial Review Application is as follows:
(a)on 24 February 2014, Mrs Amiri, a citizen of Afghanistan, travelled to Australia on a Global Humanitarian Protection (subclass 202) visa with her six children: CB 105;
(b)Mr Amiri, still residing outside of Australia, applied for the Partner Visa on 22 February 2017: CB 1-24;
(c)the Delegate’s Decision to refuse to grant Mr Amiri the Partner Visa was made on 19 October 2017: CB 95-101;
(d)Mrs Amiri appealed the Delegate’s Decision to the Tribunal on 8 November 2017: CB 102-104;
(e)the Tribunal held two hearings, the first on 5 March 2019 (“First Hearing”): CB 122-123, and the second on 10 October 2019 (“Second Hearing”): CB 213-215; and
(f)the Tribunal Decision was made on 16 December 2019: CB 279-304.
Relevant law
Section 5F of the Migration Act is as follows:
(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.
Regulation 1.15A of the Migration Regulations 1994 (Cth) (“Migration Regulations”) is as follows:
(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:
(a) a Partner (Migrant) (Class BC) visa; or
(b) a Partner (Provisional) (Class UF) visa; or
(c) a Partner (Residence) (Class BS) visa; or
(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.
(4) If the Minister is considering an application for a visa of a class other than a class mentioned in subregulation (2), the Minister may consider any of the circumstances mentioned in subregulation (3).
Jurisdictional error required
The Tribunal Decision may be set aside on judicial review on the basis of jurisdictional error where the Tribunal identifies a wrong issue, asks the wrong question, ignores relevant material or relies on irrelevant material in a way that the Tribunal’s exercise or purported exercise of power is thus affected resulting in a decision exceeding, or a failure to exercise, authority or powers given to the Tribunal under the Migration Act:Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ.
In certain circumstances a denial of procedural fairness may also constitute jurisdictional error: SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300 at [32]-[33] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ, as may legal unreasonableness: as to which see the summary in Minister for Immigration & Border Protection v Pandey & Ors [2014] FCA 640; (2014) 143 ALD 640 at [41] per Wigney J.
The Court has no jurisdiction to engage in merits review, and fact-finding is a matter for the Tribunal, and is not reviewable by this Court if the findings of fact were open to the Tribunal, and otherwise made in accordance with the law: NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167 at [9] per Heerey, RD Nicholson and Selway JJ; Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1, CLR at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ (“Wu Shan Liang”). The weight to be given to an applicant's claims and evidence is a matter for the Tribunal to assess as part of its fact-finding function: Wu Shan Liang, CLR at 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ.
Ground 1
Ground 1 of the Amended Judicial Review Application is as follows (without alteration):
The Administrative Appeal Tribunal constructively failed to exercise its jurisdiction, or otherwise failed to carry out its statutory task, by failing to consider, properly or at all, genuine and continuing husband wife relationship in turbulent time in a war-torn country.
PARTICULARS
a.The Tribunal accepted that review applicant and the applicant married to each other.
b.The Tribunal accepted that the situation in Afghanistan is dangerous, complex, and highly fluid and women face additional difficulties when displaced by conflict.
c.The Visa Applicant claimed that the family fled Afghanistan to Pakistan for safety and he returned to Afghanistan to sell his belongings then he lost contacts with his family.
d.The Visa applicant claimed that he was captured by group of Taliban and imprisoned for two years.
e.The Tribunal accepted the Visa applicant's claim that he came to know that his family living in Australia and in 2014 and in 2016 he met his wife in Quetta in Pakistan. The tribunal also accepted that the applicant has been communicating with his family including his wife in Australia frequently since being relocated from 2014.
f.The Tribunal appreciated that this was said by the Visa Applicant and the sponsor to be a basis for his application for partner visa.
g.The Tribunal did not resolve the Visa Applicant's claim. Specifically, the Tribunal did not consider, properly whether the Applicant's relationship with his wife during the turbulent time and specially recommencement of the relationship after 2014.
Tribunal Decision
The Tribunal found, in relation to the timeline of the relationship, that:
(a)Mr and Mrs Amiri were married on 12 October 1991: CB 280 at [9];
(b)Mr and Mrs Amiri had six children together: CB 299 at [139];
(c)up to 2006 Mr and Mrs Amiri were in a spouse relationship as recognised by Australian law: CB 302 at [166];
(d)post 2006 Mr and Mrs Amiri became estranged from one another: CB 302 at [166];
(e)between 2006 and 2014 Mr and Mrs Amiri did not contact each other at all: CB 302 at [161]; and
(f)between 2014 and the Partner Visa application in 2017 there had been some contact between Mr and Mrs Amiri: CB 302 at [161]. Specifically, the Tribunal accepted that Mrs Amiri had met Mr Amiri in Pakistan in 2016, and possibly 2017: CB 301 at [156]-[157], 302 at [167] fn 3.
The Tribunal found that the reasons for Mr Amiri’s disappearance post-2006 were unknown. In making this finding, the Tribunal was informed by the following matters:
(a)Mr and Mrs Amiri’s account of the events between 2006 and the date of the Partner Visa application gave rise to “significant concerns”, and their accounts of where they were living at the time of Mr Amiri’s alleged capture by the Taliban were not able to be reconciled: CB 299 at [141];
(b)there was no evidence to support Mr Amiri’s claim to have been captured by the Taliban for two years. Rather, there were most likely other reasons behind Mr Amiri’s disappearance, and those reasons are unknown: CB 299-300 at [142]-[144] and [151];
(c)its concern about evidence relating to the sale of a property in Afghanistan and a related transfer of finds from Mr Amiri to the family for the purchase of a property in Perth: CB 300 at [145]-[146];
(d)there was little evidence of shared knowledge between Mr and Mrs Amiri, and Mr Amiri and his children concerning important aspects of their lives, and especially the children’s lives: CB 300 at [147]-[148];
(e)there was an issue with a call to Mr Amiri made by the Minister’s Department in 2017 where it was claimed that a man named “Baquir”, not Mr Amiri, answered the phone and provided “obviously incorrect” answers to the Department: CB 287 at [56] and 300 at [149];
(f)there was a two year and four month delay between Mrs Amiri relocating to Australia and the Partner Visa application being made: CB 300 at [150]; and
(g)there was no evidence of regular communication between the Mr and Mrs Amiri: CB 302 at [162].
At CB 302-303 at [167] (footnotes omitted) the Tribunal concluded that:
The Tribunal is not satisfied that at time of application on 22 April 2017 that there was then mutual commitment to a shared life to the exclusion of others and a genuine and continuing relationship. At time of application they had been living apart for at least eleven years, albeit they did meet up in Quetta. The Tribunal considers that the weight of the evidence supports a reasonable inference that the relationship had broken down by 2006. Further, the Tribunal considers that it is reasonably open to find that the purpose for seeking the visa is to facilitate the applicant re-joining with his children in Australia, and not for purposes of pursuing a relationship with his wife, the sponsor.
The Tribunal was not satisfied that the requirements of s 5F(2) of the Migration Act were met at the time of the Partner Visa application and affirmed the Delegate’s Decision to refuse to grant Mr Amiri the Partner Visa: CB 303 at [166]-[171].
Mrs Amiri’s Submissions
The Amiri Submissions said to be related to ground 1 are, in summary, as follows:
(a)the Tribunal failed to consider the effects on the relationship where Mr and Mrs Amiri lived in a war-torn country and how this impacted their living arrangements;
(b)Mr Amiri continued to be a member of the family unit;
(c)the Tribunal failed to weigh the evidence, including Mr Amiri’s contact with Mrs Amiri in 2014, and his subsequent meeting with Mrs Amiri in 2016 and 2017 in Pakistan;
(d)Mr and Mrs Amiri living apart was beyond their control and was not on a permanent basis;
(e)the Tribunal applied the relevant criteria as a checklist. The Court notes that although Mrs Amiri’s lawyer stated that this submission related to ground 1, the wording used in paragraph (c) of the particulars of ground 2 is identical to this submission and the Court will therefore consider this submission as part of ground 2; and
(f)the Tribunal took into account irrelevant considerations in reg 1.15A of the Migration Regulations because the couple were living in different countries due to extenuating circumstances.
Minister’s Submissions
The Minister’s submissions address ground 1 on a particular view of what is being asserted. That is, that the Tribunal failed to have regard to the turbulent situation in Afghanistan, and how that impacted Mr and Mrs Amiri’s relationship. The Minister’s submissions can be summarised as follows:
(a)the Tribunal had regard to country information about the security situation in Afghanistan. The Tribunal was, however, concerned with several credibility findings, not the subject of the country information;
(b)there is a logical connection between the evidentiary findings and the conclusion that the relationship between Mr and Mrs Amiri had broken down by 2006 and the pairs’ future intentions (that Mr Amiri wanted to move to Australia to be with the children); and
(c)the Tribunal relied on a number of inconsistencies in reaching its ultimate adverse credibility finding. Those inconsistencies are permissive of a conclusion that the parties were not in a genuine and continuing relationship.
Consideration – ground 1
The general allegation of error is that the Tribunal constructively failed to exercise its jurisdiction or carry out its statutory task. This was sought to be explained by the various arguments outlined in the Amiri Submissions. Mrs Amiri has not, however, specifically connected these arguments with the alleged “constructive failure”. In fact, as will become apparent in the reasons that follow, some of these arguments do not appear to fit with ground 1. The Court will address each of the arguments raised in the submissions, acknowledging that there is significant overlap, before addressing the arguments collectively as an allegation of a constructive failure of the Tribunal to exercise its jurisdiction or carry out its statutory task.
The Tribunal did not fail to consider the effects on the relationship where Mr and Mrs Amiri lived in a war-torn country and how this impacted living and social arrangements. Mrs Amiri has not explained how the Tribunal failed to consider these effects, what the effects are (with any sort of specificity) and why this leads to error. The Court can infer that it is an allegation which goes to the factual findings made by the Tribunal in relation to living and social arrangements. For the following reasons, the argument is not made out:
(a)the Tribunal did take into account the country information pertaining to Afghanistan: CB 281 at [14], and accepted that Mr Amiri would be “strongly motivated to depart Afghanistan” because of “security issues in Khabul and other areas of Afghanistan”: CB 299 at [140];
(b)the Tribunal actively inquired into matters concerning the effects of a “war-torn” Afghanistan. Specifically, the Tribunal examined Mr Amiri’s claim to have been captured by the Taliban: CB 283 at [21]-[22], [27], 284-285 at [28]-[39]. The Tribunal rejected any claim that Mr Amiri was captured by the Taliban: CB 299-300 at [142]-[144]. Further, the transcript of the First Hearing shows that the Tribunal discussed with Mr Amiri the “security situation” in Kabul: CB 163, referred to in the Tribunal Decision at CB 286 at [46], and shows that the Tribunal discussed with Mrs Amiri whether her husband “felt safe”: CB 177, referred to in the Tribunal Decision at CB 289 at [77];
(c)discussions with one of Mr and Mrs Amiri’s sons who gave evidence about the Taliban’s alleged capture of his father, and a possible motive for the alleged capture: CB 290 at [89];
(d)that the Tribunal was aware of the circumstances, and in particular the possible threat from the Taliban, can be seen from the Tribunal’s consideration of Mr Amiri’s alleged capture by the Taliban and the Tribunal’s finding that he was not so captured at CB 299-300 at [142]-[144] as follows:
142. The Tribunal has also concerns with respect to the veracity of the applicant’s claims to have been captured by the Taleban. There is no evidence to indicate that at time of capture the applicant had significant wealth; whilst the Tribunal accepts that the applicant did own some land in Afghanistan, there is nothing to indicate the Taleban knew of it or were seeking to extort the applicant to secure the land. The applicant did not have a significant public profile or any political involvements; the evidence is to the effect that he had not been involved in political demonstrations or any involvements in anti-Taleban activities. Put simply, at that time in his life in 2006 his role was that of a working husband supporting a family.
143. There is no evidence that the Taliban and or any other militant group sought out persons through which to demand payment of ransom for release of the applicant. The obvious question arises as to what could have been the motive, if any, for holding the applicant captive for up to two years at various locations in Afghanistan? No motive is evident to the Tribunal.
144. A similar question arises as to why the Taleban did not kill him, release him or dispose of him at a much earlier point in time?; the applicant provided no information to indicate he was able to provide them with any useful intelligence. The Tribunal has no difficulty in accepting that the Taleban would have been active in significant areas of Afghanistan in 2006 and that people were captured and held by them, and murdered. The situation with the applicant is that he had no public profile, was not a person of any wealth and seemingly of no tactical or intelligence value to them. Having weighed this evidence it does not accept the claim of being captured and held for up to two years to be true. As such, the Tribunal finds there were other reasons behind the applicant having gone missing other than by reason of capture.
(e)the Tribunal Decision was focused on determining the relationship between 12 April 1991 (date of the marriage) and 22 April 2017 (date of the Partner Visa application). The Tribunal accepted that Mr and Mrs Amiri were in a spousal relationship up to 2006: CB 302 at [166], that there was no evidence of contact between Mr and Mrs Amiri between 2006 and 2014, and only limited contact thereafter: CB 302 at [161].
In the above circumstances, it was open to the Tribunal to find, as it did, that the relationship between Mr and Mrs Amiri had broken down. Further, the Tribunal’s consideration of the effects of “war-torn” Afghanistan on the relationship do not reveal any sort of factual error in the Tribunal Decision taking the Tribunal outside its jurisdiction, and thereby constituting jurisdictional error: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16, (2010) 240 CLR 611, (2010) 84 ALJR 369, (2010) 266 ALR 367, (2010) 115 ALD 248 at [38] per Gummow ACJ and Kiefel J and at [130] per Crennan and Bell JJ. Finally, in circumstances where the Tribunal recounted the evidence set out above and considered that evidence, it cannot be said that the Tribunal overlooked that evidence, nor can any inference to that effect be drawn: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184, (2003) 236 FCR 593, (2003) 75 ALD 630 at [47] per French, Sackville and Hely JJ. Thus, Mrs Amiri’s argument in relation to this aspect of ground 1 reduces to no more than a request for the Court to conduct impermissible merits review: Wu Shan Liang, CLR at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ.
The argument that Mr Amiri did not cease to be a member of the family unit is misconceived. The question before the Tribunal was whether Mr and Mrs Amiri were spouses for the purposes of s 5F of the Migration Act. Mr Amiri’s membership in the family unit may serve as evidence in this inquiry, noting, for example, the mandatory considerations in reg 1.15A(3)(b)(i) and (3)(d) of the Migration Regulations. In assessing the relationship, the Tribunal must, however, consider all of the circumstances of the relationship referred to in reg 1.15A(3) of the Migration Regulations: reg 1.15A(2) of the Migration Regulations; He & Ors v Minister for Immigration & Border Protection & Anor [2017] FCAFC 206; (2017) 255 FCR 41; (2017) 161 ALD 17 (“He”) at [76]-[77] per Siopis, Kerr and Rangiah JJ, and the collective requirements in s 5F(2)(a)-(d) of the Migration Act.
There was relatively limited evidence related to Mr Amiri’s membership of the family unit. The Tribunal accepted that Mr Amiri was the biological father of the six children to Mrs Amiri. There was evidence of separate $5,000 payments made to his eldest son, Javed, and to Mrs Amiri. There was evidence of his position as the father of the family prior to the relationship breakdown in 2006, and that he was not in contact with any member of the family for several years thereafter. There was evidence of his meeting with Javed in 2014 and Mrs Amiri in 2016, and possibly in 2017. There was therefore sufficient evidence for the Tribunal to find, as it did, that the nature of Mr Amiri’s membership in the family unit was that of an estranged husband and father: CB 301 at [151].
Mrs Amiri also argues that the Tribunal failed to consider the religious aspect of the relationship between her and Mr Amiri. Although this argument was said to be part of ground 2, it appears related to the religious aspect of the relationship argument. To the extent that it is claimed that Mr and Mrs Amiri’s shared religion provides that identification in, and acceptance by, a family unit is irrefutable evidence of a person being in a spousal relationship, the Tribunal, specifically and correctly, noted in the Tribunal Decision: CB 281 at [13], that the Tribunal should be sensitive to cultural and religious differences in assessing the status of relationships: Reddy v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 516 at [21]-[22] per Barnes FM. It is fair to observe, however, that there was little evidence led before the Tribunal about the religious aspects of the marital or family relationships. The religious aspects of the relationship had, in any event, been considered in light of the Tribunal’s other findings, particularly the lack of credible narrative and the years of little to no contact between Mr and Mrs Amiri. The Tribunal Decision set out matters which were not capable of being materially influenced by the claimed religious aspects of the relationship, and plainly gave those matters greater weight, as it was entitled to do: Wu Shan Liang, CLR at 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ.
In relation to meetings between Mr and Mrs Amiri in Pakistan in 2016, and possibly 2017, the Tribunal did “weigh” that evidence. Mrs Amiri claimed to have met Mr Amiri in 2017, but Mr Amiri claimed that the two had only met in 2016. The Tribunal found that that the two had met in Pakistan in 2016 and possibly 2017: CB 301 at [156]-[157] and 302 at [167] fn 3. By accepting the possibility of the 2017 meeting in light of a significant issue pertaining to the reliability of that evidence, the Tribunal took a view of the evidence favourable to Mrs Amiri.
Contrary to submissions made on behalf of Mrs Amiri, Mr and Mrs Amiri did not claim to have met in 2014. Rather, it was the eldest son Javed who located Mr Amiri in December 2014 in Afghanistan: CB 285 at [38]-[39], [41], CB 288 at [66], [70], CB 289-290 at [80]-[84], at a time when Mrs Amiri had relocated to Australia, which she did on 26 February 2014: CB 283 at [23].
In circumstances where there was evidence that since 2006 Mr and Mrs Amiri had met once in 2016, and possibly again in 2017, and the Tribunal considered the evidence and set out its factual findings in relation thereto, Mrs Amiri has not explained how the Tribunal failed to weigh the evidence concerning these meetings, or how the alleged failure to weigh that evidence, impacted upon the Tribunal Decision. Consideration and weighing of evidence is a matter for the Tribunal in the exercise of its fact-finding function, and the limited circumstances in which the Court can interfere with that function do not arise here: Wu Shan Liang, CLR at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ.
The argument that Mr and Mrs Amiri living apart was beyond their control and was not on a permanent basis fails to consider the findings made by the Tribunal in circumstances where there has been no challenge, in either the written material filed in the Court or in the oral submissions made at hearing, that the Tribunal made an error in finding that Mr Amiri was not captured by the Taliban, but rather left the family for reasons unknown. To the extent that it is said that the Tribunal failed to consider, or erred in considering, this issue because of the nature of “war-torn” Afghanistan, that matter has been dealt with above: see [20]-[21] above. Otherwise, in circumstances where there was no contact between Mr and Mrs Amiri for at least eight years between 2006 and 2014, and then only minimal contact thereafter to the time of making the Partner Visa application in 2017, that provides an adequate basis for the Tribunal to conclude that there was not a mutual commitment to a shared life or a genuine continuing relationship between Mr and Mrs Amiri: CB 302-303 at [167].
The assertion that the Tribunal took into account an irrelevant consideration in applying reg 1.15A of the Migration Regulations because the couple were living in different countries due to extenuating circumstances is simply wrong as reg 1.15A of the Migration Regulations, and in particular the factors in reg 1.15A(3) of the Migration Regulations must be the subject of consideration and findings by the Tribunal: Migration Regulations, reg 1.15A(2); He at [76]-[77] per Siopis, Kerrr and Rangiah JJ. The Tribunal identified the relevant law, being s 5F of the Migration Act and reg 1.15A of the Migration Regulations, and applied those provisions to Mr and Mrs Amiri’s circumstances. Regardless of an applicant’s circumstances, the Tribunal must apply these laws in assessing whether two people are in a spouse relationship for the purposes of the Partner Visa. An applicant’s circumstances, whether they be in a war-torn state or otherwise, may be, and often are, relevant to the inquiry under these laws, but such circumstances do not dictate the applicability of the laws. Therefore, the Tribunal did not err by taking into account and applying reg 1.15A of the Migration Regulations.
Considering the above arguments cumulatively for the purposes of determining whether the Tribunal “constructively failed” to exercise its jurisdiction or carry out its statutory task, does not assist Mrs Amiri’s case in circumstances where each of the arguments has failed.
Ultimately, ground 1 and the various arguments said to relate to ground 1, and which have not been made out, are no more than a request for the Court to engage in impermissible merits review: Wu Shan Liang, CLR at 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ. It follows that ground 1 of the Amended Judicial Review Application is not made out, and does not establish jurisdictional error in the Tribunal Decision.
Ground 2
Ground 2 of the Amended Judicial Review Application is as follows (without alteration):
The Administrative appeal tribunal took irrelevant considerations into account and failed to take relevant considerations into account in the exercise of the power when concluding that the relationship between the Visa applicant and the sponsor.
PARTICULARS
a.The tribunal, throughout the hearing engaged enquiring more about the applicant's capture by Taliban and its authenticity rather than checking the relationship between the Visa applicant and the sponsor is genuine and continuing.
b.The Tribunal failed to consider that the Visa applicant and his wife, the sponsor not lived separately and apart on a permanent basis during crisis situations in different countries.
c.The tribunal did not engage consciously in deciding that the Visa applicant and the sponsor are living apart on permanent basis and the spousal relationship between them is not genuine and continuing and using the relevant criteria as a checklist in coming to the conclusion.
Mrs Amiri’s Submissions
The Amiri Submissions said to be related to ground 2 are, in summary, as follows::
(a)a family unit consists of a husband, wife and children in their religious belief;
(b)the questions asked by the Tribunal were more focused on Mr Amiri’s capture by the Taliban and not whether there was a genuine and continuing relationship; and
(c)the Tribunal applied the criteria as a checklist.
Minister’s Submissions
The Minister submitted that the Tribunal considered the question of whether there was a marital relationship taking into account the matters that the Migration Act and Migration Regulations required it to consider.
Consideration – ground 2
The Tribunal were required to take into account the four principal matters in s 5F(2) of the Migration Act, and the matters in reg 1.15A(3) of the Migration Regulations. The inquiry was discussed in depth in He where the Full Court of the Federal Court held:
(a)the matters in reg 1.15A(3) are relevant considerations to which the Tribunal is bound to give proper, genuine and realistic consideration by an active intellectual process requiring meaningful consideration of the relevant matter: He at [52] per Siopis, Kerr and Rangiah JJ;
(b)the obligation which arises is not one which requires the Tribunal to make a finding as to the existence or effect of every potentially relevant circumstance pertaining to each consideration. The obligation is to make any necessary findings of fact to support the conclusion reached as to each relevant consideration: He at [71] per Siopis, Kerr and Rangiah JJ; and
(c)there is a distinction between the Tribunal Decision and the written statement of reasons it must give under s 368 of the Migration Act. The requirement to “consider” is separate to the statutory obligation to provide reasons: He at [79] per Siopis, Kerr and Rangiah JJ, and the cases there cited. If the Tribunal’s reasons do not mention a matter in reg 1.15A it may lead a Court to infer that the Tribunal ignored a relevant consideration: Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16; (2020) 274 FCR 646 at [88]-[95] per Logan, Derrington and Thawley JJ.
It follows from He that there is no proper, genuine and realistic consideration or meaningful consideration as required unless there is a finding as to the facts that bear upon the consideration. The Tribunal cannot, by failing to make the requisite findings as to each consideration, discharge the statutory obligation to consider each of them. It must form a view. It is, however, a matter within the jurisdiction of the Tribunal to form a view as to those factual matters. It is also for the Tribunal to determine how to bring each consideration to bear in reaching its conclusion as to whether a person is a spouse of another for the purposes of the Migration Act: Javed v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCCA 2591 at [64] per Judge Lucev.
The Tribunal’s questions being focused on Mr Amiri’s alleged capture by the Taliban
The Court has the transcripts of the two hearings at the Tribunal before it. Mrs Amiri has not identified any part of the transcripts which support this argument. Nevertheless, the Court is willing to accept that the Tribunal did question the witnesses extensively on Mr Amiri’s claim to have been captured by the Taliban: CB 153-156, 172, 174, 182, 227. The Court does not, however, agree that this reveals any error in the Tribunal Decision.
The Tribunal also questioned the witnesses on other matters, including, for example, the financial aspects of the relationship. However, in circumstances where Mr and Mrs Amiri on their own evidence had not lived together for over a decade, the Tribunal was required to determine what occurred between 2006 and the date of the Partner Visa application (22 February 2017: CB 1-24) . Such an approach is consistent with the mandatory considerations under reg 1.15A(3) of the MigrationRegulations: see He at [76]-[77] per Siopis, Kerr and Rangiah JJ. There was little evidence of contact between Mr and Mrs Amiri over this time.
The Tribunal also asked both Mr and Mrs Amiri to construct the relationship narrative over those 11 years and their responses were inconsistent. The Tribunal proceeded to inquire into the particulars of these narratives, the most prominent being the claim that Mr Amiri was estranged from his family because he was captured by the Taliban for two years. The Tribunal found that Mr Amiri had not in fact been captured by the Taliban, but had left the family for reasons unknown. In making this finding, the Tribunal were required to question Mr Amiri in relation to his alleged capture by the Taliban. If it had not, then it would not have been in a position to make a finding in relation to the alleged capture.
The finding that Mr Amiri had not been captured by the Taliban was one of a number of findings, including credibility findings, which led to a conclusion that the Tribunal did not have any evidence of what had occurred with Mr Amiri post-2006, and that he had become estranged from his family. That finding was one which was open on the evidence, and is not indicative of any error on the part of the Tribunal.
The Tribunal did not engage conscientiously in the decision and applied the criteria as a checklist
It is not apparent whether this assertion is intended to be two assertions, namely, first, that the Tribunal did not engage conscientiously in the Tribunal Decision, and, second that the Tribunal applied the criteria as a checklist, or, and as appears more likely, it is a third compound assertion.
In relation to the possible second and third assertions they cannot succeed because the Tribunal was mandatorily obliged to consider the factors in s 5F of the Migration Act and reg 1.15A(3) of the Migration Regulations and to make findings in relation thereto: see [35]-[36] above. For reasons set out both above: see [20]-[28] above, and below: see [43]-[44] below, it is evident that the Tribunal did so both conscientiously and comprehensively.
The possible first assertion that the Tribunal “did not engage conscientiously in the decision” is plainly wrong. An examination of the Tribunal Decision, which is 26 pages in length and contains 171 paragraphs, shows that the Tribunal:
(a)set out and understood the relevant law concerning the grant of a Partner Visa: CB 280-281 at [8]-[12];
(b)referred to relevant country information: CB 281-282 at [14];
(c)took evidence from, and set out the evidence of, a number of witnesses: Mr Amiri at CB 282-287 at [18]-[62], Mrs Amiri CB 288-289 at [63]-[79] and CB 291-294 at [94]-[119], Mr and Mrs Amiri’s eldest son, Javed: CB 289-290 at [80]-[90] and 294-295 at [120]-[127], and two further children of Mr and Mrs Amiri, Ms Nasim Amiri: CB 290-291 at [91]-[93] and Ms Mah Gul Amiri: CB 295 at [128];
(d)requested further information from Mr Amiri concerning the sale of certain land in Afghanistan, and information from the Minister’s Department concerning a call made to a Kabul number provided for Mr Amiri, and responses thereto: CB 295-296 at [129]-[136];
(e)set out the submissions made on behalf of Mr and Mrs Amiri: CB 298-299 at [137]; and
(f)made findings of fact in relation to the issues of:
(i)the marriage: CB 299 at [138];
(ii)the children: CB 299 at [139];
(iii)the family coming to live in Quetta in Pakistan in 2006: CB 299 at [141];
(iv)Mr Amiri’s claim to have been captured by the Taliban: CB 300 at [144];
(v)the sale of certain land in Afghanistan by Mr Amiri: CB 300 at [144];
(vi)the “general lack of shared knowledge” between Mr and Mrs Amiri about important aspects of their lives, and the lives of their families: CB 300 at [148];
(vii)the Minister’s Department’s call to a number in Kabul provided for contact with Mr Amiri: CB 300 at [149];
(viii)the delay of two years and four months in lodging the Partner Visa application from the time Mr Amiri had been found in Kabul in 2014 by his eldest son, Javed: CB 300 at [150],
and also considered the above matters cumulatively: CB 300-301 at [151].
The Tribunal also considered other matters as at the time of the Partner Visa application, including:
(a)the financial aspects of the relationship: CB 301 at [152]-[155];
(b)the nature of the household: CB 301 at [156];
(c)the social aspects of the relationship: CB 301 at [157]; and
(d)the nature of Mr and Mrs Amiri’s commitment to each other: CB 302 at [158]-[164].
Having regard to the matters the Tribunal did engage with, both individually and cumulatively, the assertion that the Tribunal did not engage conscientiously with the matters it was required to consider is demonstrably wrong, and is not made out.
It follows that ground 2 of the Amended Judicial Review Application is not made out, and does not establish jurisdictional error in the Tribunal Decision.
A further matter raised at hearing
At hearing Mrs Amiri’s lawyer raised (without objection) a further matter, namely that the Tribunal made the finding at CB 301-302 at [167], which is set out at [15] above, without evidence.
To make out a no evidence finding, there must be not a skerrick of evidence to support the finding: MZZUG v Minister for Immigration & Border Protection [2015] FCA 1151 at [59] per Murphy J. Here, the Tribunal took into account, at least, the evidence referred to at [14], [20]-[28] and [43] above. It cannot, therefore, be said that there was not a skerrick of evidence to support the conclusion reached at CB 301-302 at [167], which represents a conclusion reached after considering all of the findings of fact made by the Tribunal.
It follows that the further matter raised is not made out, and does not establish jurisdictional error in the Tribunal Decision.
CONCLUSION AND ORDER
The Court has concluded that neither of the grounds in the Amended Judicial Review Application (including therein the matters raised in the Amiri Submissions), nor the further matter raised at hearing, have been made out, and, therefore, no jurisdictional error in the Tribunal Decision has been established. There will, therefore, be an order dismissing the Amended Judicial Review Application.
The Court will hear the parties as to costs.
I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 30 April 2021
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