Aql21 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs
[2021] FCCA 564
•24 March 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
AQL21 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCCA 564
File number: PEG 51 of 2021 Judgment of: JUDGE KENDALL Date of judgment: 24 March 2021 Catchwords: MIGRATION – partner visa – decision of the Administrative Appeals Tribunal – where the Tribunal found the applicant and sponsor were not in a genuine and continuing relationship – where claims of family violence – whether the Tribunal, in any event, had jurisdiction – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth), ss 375A, 476
Migration Regulations 1994 (Cth), cll 820.211, 820.221, 820.311 of Sch 2
Cases cited: ALN19 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2020] FCA 1592
Bala v Minister for Immigration & Border Protection [2019] FCA 600
BMY18 v Minister for Home Affairs [2019] FCAFC 189
Craig v State of South Australia (1995) 184 CLR 163
DFQ17 v Minister for Immigration and Border Protection [2019] FCAFC 64
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration & Border Protection v SZMTA [2019] HCA 3
Minister for Immigration & Citizenship v Abdul Manaf [2009] FCA 963
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration v Jia Legeng (2001) 178 ALR 421
MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
Number of paragraphs: 118 Date of hearing: 22 March 2021 Place: Perth Applicants: The first applicant appeared in person and on behalf of the second applicant and the third applicant Counsel for the First Respondent: Mr L Dennis Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Minter Ellison Lawyers ORDERS
PEG 51 of 2021 BETWEEN: AQL21
First Applicant
AQM21
Second Applicant
AQN21
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
24 MARCH 2021
THE COURT ORDERS THAT:
1.The application be dismissed
REASONS FOR JUDGMENT
JUDGE KENDALL
INTRODUCTION
The applicants are citizens of Kenya. The first applicant is the second applicant’s mother and the third applicant’s grandmother (Court Book (“CB”) 24-27).
The applicants arrived in Australia on a visitor visa on 6 July 2016 (CB 167). On 21 September 2016, the first applicant married her sponsor (an Australian Permanent Resident) (CB 47).
On 24 September 2016, the applicants applied for a Partner (Temporary) (class UK) (subclass 820)/Partner (Residence) (class BS) (subclass 801) visa (the “visa”) (CB 20-94).
On 20 October 2017, the then Department of Immigration & Border Protection wrote to the sponsor advising that it had received his notification that the relationship with the first applicant “had ceased” (CB 100).
On 12 February 2018, the Department wrote to the first applicant inviting her to comment on the following information (CB 103-105):
Information provided to the Department indicates that the spousal or de facto relationship upon which your application was based has ceased. This is likely to result in the refusal of your application. However, before a decision is made on your Subclass 820/801 visa application, you have the opportunity to provide a response, explaining your current circumstances and the reason for the breakdown of your relationship.
On 12 March 2018, the applicants’ migration agent advised that the first applicant had been a victim of family violence and was preparing a statement (CB 116). The applicants’ agent requested a 28 day extension of time within which to respond.
On 19 March 2018, the Department again wrote to the applicants inviting them to comment on the following information (and asking that they do so within 28 days) (CB 121-123):
You have stated that you have been in two previous relationships and have 4 children. Can you please confirm the full name and dates of births of all your children (biological and/or adopted) irrespective of whether they are over 18 years of age or otherwise.
Family Violence - Relationship genuine and continuing at time of claim
You have claimed that your relationship with your sponsor, [name omitted] has ceased, and that you have suffered family violence committed by [name omitted].
Before assessing your claims of family violence, I must be satisfied that you were the spouse or de facto partner of your sponsor prior to the cessation of your relationship.
When assessing whether you satisfy the definition of a spouse as per section 5F of the Migration Act 1958 (the Act), I must, by law, consider all the circumstances of the case, including the matters prescribed in regulation 1.15A. The same matters are prescribed in regulation 1.09A and, by law, I must consider them when assessing whether you satisfy the definition of a de facto partner as prescribed in section 5GB of the Act. You are therefore required to provide evidence that you were the spouse or de facto partner of your sponsor prior to the cessation of your relationship.
(Identifiers omitted)
On 17 April 2018, a delegate of the first respondent (the “Minister”) refused to grant the applicants the visa (CB 125-152). The delegate was not satisfied that the first applicant met cl 820.211(2)(a) of the Migration Regulations 1994 (Cth) (the “Regulations”). Relevantly, the delegate was not satisfied that the first applicant was the “spouse” or “de facto partner” of the sponsor at the time of the application. The delegate’s decision made no reference to the second applicant and the third applicant.
On 30 April 2018, the delegate “reissued” its decision. On that occasion the second applicant and the third applicant were included in the decision record.
On 10 May 2018, the applicants applied to the Administrative Appeals Tribunal (the “Tribunal”) for review of the delegate’s decision (CB 193-195). The applicants were represented by a new migration agent.
On 11 June 2018, a certificate was issued pursuant to s 375A of the Migration Act 1958 (Cth) (the “Act”). The certificate indicated that disclosure of “Folio 1” would be contrary to the public interest (CB 192).
On 7 June 2019, the first applicant and the sponsor divorced (CB 234).
On 8 March 2020, the applicants provided a large number of supporting documents to the Tribunal (CB 227-305).
On 16 March 2020, the applicants attended a hearing before the Tribunal (CB 306-309).
On 14 April 2020, the applicants’ migration agent forwarded further information to the Tribunal (CB 310-329).
On 20 April 2020, the Tribunal affirmed the decision not to grant the applicants the visa (CB 336-346).
On 22 May 2020, the applicants applied for judicial review of the Tribunal’s decision in this Court. The application is brought pursuant to s 476 of the Act. The applicants must show that the Tribunal has fallen into jurisdictional error.
TRIBUNAL’S DECISION
The Tribunal’s decision is 11 pages long and spans 68 paragraphs.
The Tribunal began by identifying the type of visa the applicants had applied for and noted that the applicants had claimed that the relationship between the first applicant and her sponsor had ceased because of family violence (at [1]-[2]). The Tribunal then summarised the delegate’s decision and confirmed that the applicants had attended a hearing and were represented by a migration agent (at [3]-[5] and [7]).
The Tribunal then noted:
6. At the commencement of the hearing the Tribunal informed the applicant that information in folio 1 of the Departmental file [BCC2016/3176368] was the subject of a 375A certificate. This certificate prevents the Tribunal disclosing any document, matter or information referred to in the certificate as it would be contrary to the public interest. In this case the reason disclosure would be contrary to the public interest was stated to be that the information included information provided to the Department in confidence. The Tribunal decided the certificate was valid. The Tribunal decided the information was relevant to this review and informed the applicant that it would provide the gist of the information to her during the hearing under s.359AA of the Act. The Tribunal provided the applicant with a copy of the s.375A certificate.
The Tribunal noted that the first applicant had claimed that her relationship with the sponsor ended on 1 September 2017 and that she had been the victim of family violence (at [9]). Accordingly, the Tribunal determined, the issue before it was whether the first applicant met cl 820.221(3)(a) and (3)(b)(i) (at [10]).
The Tribunal then summarised the relevant legislative requirements, as follows:
10. Relevantly cl.820.221(3)(a) and (3)(b)(i) say:
An applicant meets the requirements of this subclause if:
(a) the applicant would meet the requirements of subclause 820.211(2), (5) or (6) except that the relationship between the applicant and the sponsoring partner has ceased; and
(b) either or both of the following circumstances applies:
(i) either or both of the following:
(A) the applicant;
(B) a dependent child of the sponsoring partner or of the applicant or of both of them;
has suffered family violence committed by the sponsoring partner;
11. The provisions of cl.820.221 indicate that a genuine partner relationship within the meaning of the Act must have existed before the relationship ceased and the applicant would have otherwise met the criteria in subclauses 820.211(2) (5) or (6). This means that, while the claims of family violence do not have to cause the cessation of the relationship, the relationship which has ceased must have been one which would otherwise have met the requirements of the relevant legislation.
12. This approach was approved in the case of Guven v MIMIA [2006] FMCA 311 at [22]-[26] where Hartnett FM found that when considering the grant of a Subclass 100 Spouse (Residence) visa it was open to the Tribunal to consider whether at any point of time the relationship between the parties could properly be regarded as a spousal relationship within the meaning of the Regulations and only where it found that such a spousal relationship existed, was it required to make a further finding in relation to claims of domestic violence (as it was then referred to).
13. Therefore before assessing whether the applicant has suffered relevant family violence, the Tribunal must assess whether at any point of time the applicant and the sponsoring partner were in a spousal relationship within the meaning of the Regulations
The Tribunal explained to the first applicant that it must first be satisfied that there was a genuine spousal relationship before it would consider the family violence claim (at [14]).
The Tribunal noted that it had advised the applicants at the hearing that a statutory declaration from the first applicant’s psychologist did not appear to meet the requirements of the Regulations. The Tribunal noted that it had provided additional time for the applicants to submit further information. Further, another statutory declaration was provided and it was noted that that declaration did not meet the requirements of the Regulations (at [16]).
The Tribunal then stated:
17. ‘Spouse’ is defined in s.5F of the Act and provides that a person is the spouse of another where the two persons are in a married relationship. Persons in a married relationship must be married to each other under a marriage that is valid for the purposes of the Act, there must be a mutual commitment to a shared life as a married couple to the exclusion of all others, the relationship must be genuine and continuing, and the couple must live together, or not live separately and apart on a permanent basis: s.5F(2)(a)-(d). In forming an opinion about these matters, regard must be had to all of the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the parties’ household and their commitment to each other as set out in r.1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in r.1.15A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.
The Tribunal then explained that the applicants had provided a Certificate of Marriage dated 21 September 2016 (at [18]).
The Tribunal noted the ages of the applicants and the sponsor (at [19]). The Tribunal then referred to the fact that the first applicant and sponsor had met on 10 July 2016, had become engaged on 19 August 2016 and had married on 21 September 2016. The Tribunal then noted that the first applicant had stated that when she met the sponsor they had both been single for a long time and “had a connection” (at [20]).
In relation to the financial aspects of the relationship, the Tribunal:
(a)referred to bank statements in the name of the first applicant and the sponsor dated 7 April 2017 until 31 October 2017 (at [23]). The Tribunal noted that the first applicant had stated that both she and the sponsor contributed to the account and both had used the account to buy groceries (at [24]). The Tribunal found that the bank account appeared to have been used primarily by the first applicant (at [27]);
(b)noted that the first applicant had advised that she had contributed to the cost of groceries and had paid one half of the water bill (at [25]). The sponsor paid the other accounts in his sole name;
(c)noted the first applicant’s evidence that, apart from contributing to the groceries and one half of a water bill, she had made no other contribution towards day-to-day household expenses, the couple did not own any joint assets and, apart from Alinta energy accounts in their joint names, they did have any joint liabilities (at [26]); and
(d)accepted that there had been some limited pooling of financial resources and sharing of household expenses (at [27]).
In relation to the nature of the household, the Tribunal:
(a)noted that the first applicant had lived in the sponsor’s property from the date of the marriage until May 2017 and again from August 2017 until September 2017. She had lived with her daughter in the period between these dates (at [29]). There were corresponding Alinta energy accounts addressed to the first applicant at the sponsor’s home from various dates (at [30]);
(b)referred to the first applicant’s evidence that, twelve days after the marriage, the sponsor had advised the first applicant that she was to sleep in the guest bedroom, that the sponsor and the applicant shopped for groceries separately, that the couple ate dinner separately, that the sponsor did his own laundry and that the first applicant cleaned the house without assistance from the sponsor (at [31]); and
(c)found that the first applicant resided at the same house as the sponsor during the marriage but that the nature of the household was not consistent with a spousal relationship (at [32]).
In relation to the social aspects of the relationship, the Tribunal noted that the first applicant had indicated that there were no social activities that she shared with the sponsor. Further, the first applicant and the sponsor did not spend time with family or friends after they married and the sponsor refused to spend Christmas with the first applicant (at [34]). The Tribunal found that there was no evidence before it that the first applicant and the sponsor had represented themselves to other people as being married to each other or that they had undertaken joint social activities (at [35]).
In relation to “the nature of the commitment” the first applicant and the sponsor had to each other, the Tribunal first referred to the evidence before it and:
(a)noted that the first applicant had told the Tribunal that, at no time during the marriage, did the sponsor provide her with emotional support or companionship. The first applicant also stated that, after the couple married, the sponsor became abusive (at [37]);
(b)summarised the first applicant’s statutory declaration and her evidence at the hearing which detailed the family violence she claimed to have suffered and noted that this appeared to have commenced less than eight weeks after they married (at [38]-[40]);
(c)noted that the first applicant had claimed that the sponsor told her she was “fat”, “useless” and had a “bad odour” (at [41]). Further, the sponsor did not acknowledge the first applicant and the first applicant was afraid to ask the sponsor for anything (such as milk in her tea or bedding) (at [42] and [45]);
(d)made reference to the first applicant’s evidence that the sponsor did not allow her to have breakfast or lunch and that her daughter had to bring her food (at [42]). Further, he tried to force her to eat mouldy bread (at [43]);
(e)stated that the sponsor did not allow the first applicant to practice her Muslim faith (at [44]);
(f)noted that the sponsor travelled to China on business in May 2017 and did not contact the first applicant during the period he was away (at [46]);
(g)discussed with the applicant the information provided by her psychologist and noted that the first applicant had stated that she was scared the sponsor would put her in a situation which would result in her being in jail and as she was new to Australia she did not know her rights (at [47]-[49]); and
(h)noted the second applicant’s evidence provided in her statutory declaration and at the hearing (at [50]-[51]).
The Tribunal then referred to the information in the certificate and disclosed this to the first applicant (at [52]). The Tribunal chose not to attach any weight to the information covered by the certificate as it could not test the validity of that information (at [53] and [56]). The Tribunal noted that the first applicant had provided further information to refute the information disclosed by the Tribunal but the Tribunal was unable to give any weight to some of this evidence (at [54]-[55]).
The Tribunal was satisfied that the sponsor and the first applicant were “validly married” (at [58]).
The Tribunal then continued:
59. There was limited evidence of pooling of financial resources or sharing of day-to-day household expenses. The parties had no joint assets or significant liabilities. The evidence in relation to the nature of the household indicated that the parties ate all their meals separately and slept in separate bedrooms. The applicant was not permitted to use the kitchen or the laundry. There was no evidence of social recognition or joint social activities.
60. The most damaging evidence was the evidence in relation to the parties’ commitment to each other. The evidence indicated that very soon after the marriage the sponsor became sexually, verbally and emotionally abusive. The applicant’s evidence was that he forced to have sex and perform sexual acts against her wishes. She said he told her she had a bad smell and she was fat. He said he hated people of the Muslim faith and he hated her for being someone practising Islam. The applicant described being deprived of basic comforts of food and bedding by the sponsor. The Tribunal places weight on this abusive behaviour which the applicant and [name omitted] said commenced very soon after the parties married. The Tribunal notes the Partner visa application was lodged three days after they married.
61. The evidence was that the sponsor did not provide the applicant with any degree of companionship or emotional support during the marriage. The applicant told the Tribunal that on 14 November 2016 she cried all night after painful sexual activity against her wishes however the sponsor told her to be quiet because he needed to sleep. This evidence was troubling because it demonstrates a lack of regard for the applicant’s emotional well-being and the Tribunal places weight on this evidence.
62. The Tribunal places weight on the absence of any communication between the parties when the sponsor said he was away on business for eight weeks. At this time the parties had been married less than eight months.
63. The Tribunal accepts the applicant’s evidence that she married the sponsor because she felt a connection with him and that he was good prior to the marriage. This evidence is however outweighed by the documentary evidence and the oral evidence at hearing. The applicant’s genuine intention to have a shared life with the sponsor is not sufficient in itself to satisfy the requirement that she was his spouse for the purposes of the Act. In the Tribunal’s view the sponsor’s behaviour towards the applicant very soon after they married demonstrated his lack of commitment to a shared life as her husband.
The Tribunal was not satisfied that the first applicant was “the spouse” of the sponsor at the time of the application or any time after their marriage (at [64]). Accordingly, the first applicant did not meet cl 820.211(2)(c) (at [65]).
As the first applicant did not meet the primary criteria, the Tribunal found that the second applicant and the third applicant could not be granted the visa (at [66]).
The Tribunal affirmed the decision not to grant the applicant the visas they were seeking (at [67]-[68]).
PROCEEDINGS IN THIS COURT
In their application for judicial review filed on 22 May 2020, the applicants provides three grounds of review, as follows:
1. The Tribunal engaged in jurisdictional error by incorrectly deciding that the psychologists report (in statutory declaration form) mentioned in paragraph 16 of its decision did not meet the statutory requirements of the Migration Regulations 1994.
2. The Tribunal was mislead by error in translation as to a key date of an event that occurred that is mentioned at paragraph 41 of its decision. This incorrect date had a material influence on the Tribunal’s decision.
3. The Tribunal engaged in jurisdictional error by deciding that a statement made by a witness held no weight at paragraph 55 of its decision. The Tribunal decision in that instance was a case of unjustly prioritising ‘form over substance’ – the Tribunal refused to engage with the statement which should have been given some level of weight in the making of its decision.
Originally, the applicants were legally represented before this Court. However, on 31 January 2021 the applicants filed a notice of address for service confirming that they no longer had legal representation.
The Court gave the applicants two opportunities to file any amended applications and supporting affidavits (orders dated 11 June 2020 and 4 August 2020). No amended applications were filed.
The materials before the Court thus include the judicial review application dated 22 May 2020, a Court Book numbering 346 pages (marked as Exhibit 1), an affidavit of Subasha Shradha Lakraji Badlu Prasad affirmed 1 March 2021 and an outline of written submissions filed by the Minister on 1 March 2021.
This matter was first listed for hearing before the Court on 15 March 2021. On that occasion, the first applicant did not have a copy of the Court Book and claimed that she had never seen the Court Book. It was apparent that the first applicant had not received the Court Book because her previous legal representative (who withdrew at the end of January 2021) did not provide the applicants with the Court Book. The Court gave the applicants a physical copy of the Court Book and the Minister’s written submissions and adjourned the matter to 22 March 2021 to allow the applicants sufficient time to review the materials before the Court.
At the resumed hearing on 22 March 2021, the applicants again appeared without legal representation. The first applicant appeared on her own behalf and on behalf of the other applicants. She was assisted by a Swahili interpreter. It is noted that the second applicant chose not to attend the hearing, despite being given every opportunity to do so.
Noting that the applicants were unrepresented, the Court gave the first applicant the opportunity to explain orally what she thought the Tribunal “did wrong”. This is the standard procedure in this Court following the decision in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7].
To assist the applicants, the Court explained to the first applicant that the only issue before the Court was whether the Tribunal fell into jurisdictional error. It was explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. Further, for migration decisions of this sort, they most commonly include, but are not limited to, the following categories:
(a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
(b)where the decision-maker ignores relevant material: Craig at 198;
(c)where the decision-maker relies on irrelevant material: Craig at 198;
(d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];
(e)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; and
(f)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained that this Court cannot review the merits of the Tribunal’s decision or grant the applicants the visa. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Against this background, the first applicant explained that the Tribunal did not “give her time to talk”. The first applicant also stressed that the Tribunal had made a decision without “hearing from her first” and was concerned that her migration agent was also denied an opportunity to speak. The first applicant also claimed that the interpreter at the Tribunal hearing was not correctly interpreting what the first applicant said at the Tribunal hearing. In response to the Minister’s summary of his written submissions, the first applicant stated that she was illiterate and that it was difficult for her to “read things without her daughter”.
The Court will address these submissions below.
CONSIDERATION – GROUNDS OF REVIEW
Ground 1
For ease of reference, ground 1 states:
The Tribunal engaged in jurisdictional error by incorrectly deciding that the psychologists report (in statutory declaration form) mentioned in paragraph 16 of its decision did not meet the statutory requirements of the Migration Regulations 1994.
At [16], the Tribunal states:
16. Notwithstanding, at hearing the Tribunal advised the applicant’s representative that its preliminary view was that a statutory declaration of registered psychologist (Ms Kaye Barr) did not meet the requirements under the Regulations. The Tribunal explained that Ms Barr had not provided an opinion and based on the information given, she had not treated the applicant while performing the duties of a psychologist but had only assessed her after two clinical interviews. The Tribunal afforded the applicant additional time following the hearing to submit any further information on which she seeks to rely. On 14 April 2020 a statutory declaration made by Ms Barr on 7 April 2020 was provided. In that statutory declaration Ms Barr provides an opinion however she makes it clear that her three interviews with the applicant were for assessment purposes only and states that the applicant has been treated by another psychologist. As such the statutory declaration does not meet the requirements under the Regulations. However for the reasons that follow, this does not affect the outcome of the application for review.
(Emphasis added)
As the emphasised passage above highlights, the fact that the Tribunal found that the psychologist’s report did not meet the Regulations was immaterial to the outcome of the review.
An error is only jurisdictional if the error is material to the outcome – i.e., it realistically deprived an applicant of a successful outcome: Minister for Immigration & Border Protection v SZMTA [2019] HCA 3. Here, the Tribunal itself recognised that its conclusion had no effect in relation to the ultimate outcome for review. That finding is correct.
The basis upon which the Tribunal refused the visa was that the first applicant was not “the spouse” of the sponsor at the time of application or any time thereafter (at [64]).
The finding that the statutory declaration did not meet the Regulations was only relevant if the Tribunal was satisfied that the applicant and the sponsor were in a genuine and continuing relationship and the relationship had ceased. The finding that the statutory declaration did not meet the Regulations was only “material” if it was necessary to consider cl 820.221(3). Here, as the Tribunal recognised, it was unnecessary to do so as the Tribunal was not that satisfied cl 820.211 was met (at [65]).
Further, as [47]-[48] demonstrate, the Tribunal did, in fact, have regard to the statutory declaration when considering whether cl 820.211 was satisfied. Hence, the finding that the statutory declaration did not meet the requirements of the Regulation did not prevent the Tribunal from considering its content.
The Tribunal’s finding at [16] was an “alternative basis” upon which the Tribunal could have refused the visa. The Tribunal did not do so. Rather, it proceeded on a different basis.
Accordingly, even if the Tribunal had made an error in its finding, any error in this regard would not amount to jurisdictional error. The primary basis upon which the visa was refused was that the first applicant did not meet cl 820.211 (i.e., she was not the spouse of the sponsor at the time of the application or any time thereafter). This basis was entirely distinct from, and in no way impugned by, the Tribunal’s finding that the statutory declaration did not comply with the Regulations.
Ground 1 is dismissed.
Ground 2
For ease of reference, ground 2 states:
The Tribunal was mislead by error in translation as to a key date of an event that occurred that is mentioned at paragraph 41 of its decision. This incorrect date had a material influence on the Tribunal’s decision
The applicants refer to an error in translation but have not provided a transcript of the proceedings before the Tribunal. Further, they have not provided any particulars as to what the actual “key date” was. Without this the Court and the Minister have no meaningful ability to determine if any mistranslation was, in fact, material.
At [41], the Tribunal states:
The applicant told the Tribunal that the sponsor called her fat, said he didn’t like her shape and didn’t like the way she dressed. He wanted her to wear short tight clothing. She confirmed that on 8 August 2016 the sponsor told her she was a useless woman with a bad odour.
(Emphasis added)
A reading of the Tribunal’s decision as a whole demonstrates that the date highlighted above was a typographical error or oversight.
At [38], the Tribunal relevantly summarises the first applicant’s statutory declaration dated 11 March 2020 as follows:
•On 8 August 2017 the sponsor picked her up and they returned to the house and he continued to mistreat and humiliate her. He told her she was a useless woman with a bad odour and forced her to sleep without bedding. He said the marriage will not work and can never work.
(Emphasis added)
The Tribunal states that the applicant confirmed that this occurred on 8 August 2016. Clearly, the applicant did not “confirm” anything if the dates were inconsistent. Read without an eye keenly attuned to error, the Tribunal was stating that the applicant confirmed what was stated in her statutory declaration – i.e., that the incident occurred on 8 August 2017. The reference to 2016 was an administrative error or oversight.
Further, the error clearly had no “material” influence on the Tribunal’s decision. It was apparent from the first applicant’s own evidence that the abuse she suffered at the hands of her husband commenced shortly after her marriage and that the incident at [41] was but one instance of the abuse she endured. While the Tribunal refers to the incident in its conclusion at [60], the Tribunal clearly indicates that the abuse inflicted on the first applicant commenced after the parties had married. Clearly, the reference to 8 August 2016 was prior to the parties getting married. Hence, the Tribunal was under no misapprehension as to when the incident described at [41] took place.
Here, the reference to 2016 (whether a mistake or a translation error) had no influence on the Tribunal’s decision.
Ground 2 is dismissed.
Ground 3
For ease of reference, ground 3 states:
The Tribunal engaged in jurisdictional error by deciding that a statement made by a witness held no weight at paragraph 55 of its decision. The Tribunal decision in that instance was a case of unjustly prioritising ‘form over substance’ – the Tribunal refused to engage with the statement which should have been given some level of weight in the making of its decision.
Paragraph 55 of the Tribunal’s decision provides:
An unsigned statement dated 14 April 2020 from [name omitted] was provided. [Name omitted] stated that he was a neighbour of the parties and to the best of his understanding the applicant lived at [name omitted] from September 2016 to September 2017. He said he saw the applicant at the property when he visited the parties and on other occasions when he drove to work. The statement was unsigned and not sworn evidence. The Tribunal attaches no weight to this evidence.
(Identifiers omitted)
It is a matter for the Tribunal what weight it gives to the evidence that is provided: Abebe v Commonwealth [1999] HCA 14. It is open to the Tribunal to afford less weight to evidence that is not attested to.
In any event, the fact that the Tribunal placed no weight on the evidence of concern here is immaterial to the Tribunal’s overall conclusions.
The evidence stated that the first applicant lived at the property from September 2016 until September 2017. At [32], the Tribunal positively found that the applicant had resided at the property during the marriage (relevantly, September 2016 until September 2017). At its highest, the evidence that the Tribunal attached no weight to did, in fact, corroborate what the Tribunal had already accepted: i.e., that the first applicant lived with her sponsor/husband.
Ground 3 is, accordingly, dismissed.
Oral Submissions
At the hearing of the matter on 22 March 2021, the first applicant expressed her concern with the conduct of the hearing before the Tribunal. Relevantly, she claimed that she was not given an opportunity to speak, her migration agent was not given an opportunity to speak and there were interpreter errors. The Court will refer to these as the “procedural fairness claims”.
The first applicant also stated that the Tribunal had made a decision before hearing from her. The Court will refer to this as the “bias claim”.
The Procedural Fairness Claims
The first “mistake” that the first applicant referred to in her oral submissions was that the Tribunal did not allow her to speak.
The Tribunal’s hearing record demonstrates that the hearing was nearly 90 minutes in length (CB 306-308). The Tribunal’s decision also demonstrates that the first applicant did engage with and participate in the hearing (see, [24]-[26], [29], [31], [34], [37], [41]-[46]).
The comprehensive and detailed discussion of the first applicant’s evidence at the hearing satisfies the Court that the first applicant was given the opportunity to speak.
The second “mistake” the first applicant referred to was that her migration agent was not able to make any submissions at the hearing.
The Tribunal’s decision at [57] provides as follows:
Representative’s submissions
57. At the conclusion of the hearing the representative submitted that the applicant had been too frightened to approach the sponsor about things that troubled her because as a Muslim woman she was meant to obey her husband.
The Tribunal also provided the applicants additional time to file any submissions and evidence. The applicants did so. Nothing in those submissions suggested that the migration agents were prevented from advancing any arguments.
On the basis of the above, the Court is satisfied that the applicants’ migration agent was “allowed to speak”.
The third “mistake” the first applicant referred to were “interpreter” errors. Relevantly, she claimed that the interpreter did “not interpret words properly for her”.
As noted in ground 2, there is no evidence before the Court (i.e., a transcript) which supports the applicants’ claimed interpretation deficiencies. The Tribunal’s decision record does not make reference to any issues of this sort. The applicants’ migration agent raised no issue with the interpretation provided at the hearing either during the hearing or afterwards. Further, the first applicant’s response to the questions asked by the Tribunal do not demonstrate any misunderstandings.
The applicants have not satisfied the Court that any interpretive errors arose.
The Bias Claim
In relation to any concerns about bias, it is well settled that an allegation of bias is one that must be distinctly made and clearly proven. To prove bias, it is for the applicants to establish that:
(a)the Tribunal, in the case of actual bias, was so committed to a conclusion that regardless of the evidence or arguments presented that conclusion was not open to persuasion and incapable of alteration: Minister for Immigration v Jia Legeng (2001) 178 ALR 421 at [71]-[72]; or
(b)the Tribunal, in the case of apprehended bias, conducted itself in a way that a fair-minded person would reasonably believe that the Tribunal had not brought an impartial mind to deciding the applicant’s case: SZRUI at [2].
Before this Court, the first applicant stated that the Tribunal had “made up its mind before it had heard from her”.
There is nothing in the materials before the Court to indicate that the Tribunal was not open to persuasion. The Tribunal invited the applicants to attend a hearing. The first applicant provided evidence at the hearing which, as noted above, the Tribunal regarded comprehensively. The Tribunal also allowed the applicants further time after the hearing to provide further evidence and submissions.
The Court is not satisfied that any issue of bias arises here.
Other Submissions
The first applicant explained to the Court that she cannot read or write English. She explained that she relies on her daughter (the second applicant) to “read things to and for her”.
To the extent that the first applicant was suggesting that she could not understand the Minister’s written submissions, the Court notes that the applicants have had those submissions since 1 March 2021. The first applicant could have had those submissions translated or read to her by her daughter if she wished to do so.
Further, the Court is satisfied that Mr Dennis, who represented the Minister at the hearing, gave a detailed and clear summary of the Minister’s position. While the first applicant may not have been able to read the written submissions, Mr Dennis’s oral submissions were clear and accessible. This was perhaps best demonstrated by the fact that the first applicant responded to them.
The first applicant’s oral submissions fail to identify any jurisdictional error.
Otherwise
Notwithstanding the fact that the applicants were legally represented when they first drafted their application for judicial review, the Court has (in its role to self-represented litigants) nevertheless considered for itself whether any error arises in the Tribunal’s decision: MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392.
One issue identified relates to whether the Tribunal did, in fact, have jurisdiction to review the first applicant’s application. The Minister submitted that the Tribunal did not have jurisdiction.
It is necessary to provide some context to explain why this issue arises.
On 17 April 2020, the delegate refused to grant the visa to the first applicant. That decision was sent to the first applicant’s agent at the relevant time.
On 25 April 2020, the first applicant emailed the Department as follows:
This email is about refusal notification (received 17/04/2018) due to insufficient documentation for the following applicant;
[The first applicant]
The deadline for the sufficient documentation required for the application from the immigration agent was for the 16/04/2018. However the immigration agent received all necessary documents before this date yet did not submit these documents resulting in the refusal of the visa. ..
…
In the refusal letter for the application, 21 days has been granted to submit for a review at the tribunal from the 17/04/2018, making the deadline the 7/05/2018. However, unable to currently submit at tribunal without application including all three applicants.
In order to assist in resolving this matter, I am humbly;
1. Requesting re-issue of notification with 2 more applicants (3 applicants total) in it as initially given in the original application. The 2 applicants that have been left out are;
[The second applicant]
[The third applicant]
…
(Identifiers omitted)
On 30 April 2018, the delegate emailed the first applicant stating:
In order to assist you, can you please confirm that [the second applicant] and [the third applicant] are dependant applicants on your Partner visa applications.
The delegate then stated (later in the day on 30 April 2018):
I have updated your Partner visa applications to include your dependant applicants.
As the department has not received a Form 956 ceasing your appointment with your Migration Agent, the department is required to notify your authorised recipient. I will include you in the correspondence.
The first applicant was then sent a further notification letter which, on this occasion, also notified the second applicant and the third applicant. The decision record was the same, save for the second applicant and third applicant being named on the first page. There was also a brief reference to there being “dependants” to the visa. The “decision” was dated 30 April 2018.
In the application for review at the Tribunal, the applicants stated that the “date of notification” was 30 April 2018.
The question is whether the time period for the first applicant commenced from 17 April 2018 or from 30 April 2018. If it is the former, the Tribunal had no jurisdiction to review the first applicant’s decision (but had jurisdiction to review the second applicant’s and the third applicant’s decision). If it is the latter, the Tribunal had jurisdiction and proceeded correctly.
The Minister submits that the delegate was functus officio with respect to the first applicant on 17 April 2018. It is argued that the first applicant was notified in accordance with s 66 of the Act and, accordingly, the decision dated 30 April 2018 was no more than a “re-issue” of the decision.
The Court agrees.
In Minister for Immigration & Citizenship v Abdul Manaf [2009] FCA 963 (“Abdul Manaf”), the respondent visa applicant was sent one notification on 7 August 2007. A second notification letter was sent on 22 August 2007. The Court was required to determine when the time to review actually commenced. It was held that if the visa applicant was validly notified in accordance with s 66 of the Act, there was no ability to “re-notify” or to “reset the clock”.
Here, the letter sent to the first applicant on 17 April 2018 accorded with the requirements of s 66 and the first applicant was deemed to have been notified on 17 April 2018. For the avoidance of doubt, the Court agrees with the Minister’s submission that the notification letter on 17 April 2018 did not suffer any of the defects of the letters in cases such as BMY18 v Minister for Home Affairs [2019] FCAFC 189, DFQ17 v Minister for Immigration and Border Protection [2019] FCAFC 64 or ALN19 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2020] FCA 1592.
In any event, the first applicant herself demonstrated that she understood that she had to file her application by 7 May 2018 (CB 153). Accordingly, this concession overcomes any alleged lack of clarity (if there is any) in the notification.
Accordingly, the notification letter dated 30 April 2018 did not “usurp” the 17 April 2018 letter. While the letter purports to “re-notify” the first applicant and “notify” the second applicant and the third applicant, the letter cannot confer jurisdiction on the Tribunal which the Tribunal does not have: Abdul Manaf at [28].
It also does not matter that the decision record sent on 30 April 2018 slightly differed from what was provided to the first applicant. The Minister, in fact, had no power to vary the decision record: the Act, s 67(4). The correct approach would have been for the Minister to issue a decision to the second applicant and the third applicant. It could not “remake” its decision in relation to the first applicant after it had already issued and notified the first applicant of its decision.
Accordingly, the Tribunal had no jurisdiction to review the first applicant’s application in any event. It appears to have acted outside of its powers in doing so.
Notwithstanding this determination, the fact that the Tribunal proceeded as it did did not cause any practical unfairness to the applicants and could not have realistically deprived the applicants of a successful outcome. The Tribunal’s decision is, for the reasons given above, without jurisdictional error. Hence, the fact that the Tribunal reviewed the decision (when it had no ability to do so) did no more than provide an opportunity for merits review to the first applicant that she ought not to have had. That is, the fact that the Tribunal proceeded as it did gave the first applicant a further opportunity to obtain a successful outcome when she was not, in fact, entitled to it.
Finally, as the Minister submits, remittal would be futile. For the reasons given above, the Tribunal had no jurisdiction. Hence, if the matter is remitted all the Tribunal can do is find that it cannot consider the application. There is no discretion to extend time. In circumstances where the Tribunal has no power to review the first applicant’s application, the second applicant and the third applicant cannot meet cl 820.311 and, accordingly, cannot be granted the visa.
Finally, the Minister submits that the Tribunal complied with its obligation in relation to the certificate issued pursuant to s 375A of the Act. The Court agrees. The Tribunal informed the applicants of the certificate (at [6]). Further, it placed no weight on the information the subject of the certificate as it had no ability to test it (at [53] and [56]). Accordingly, any error could not have, in any event, realistically deprived the applicants of a successful outcome.
The Court is otherwise satisfied that no jurisdictional error arises.
CONCLUSION
The judicial review application has failed to identify any jurisdictional error. While the Court does conclude that the Tribunal “erred”, any such error did not realistically deprive the applicants of a successful outcome and remittal would, in any event, be futile.
This is a most unfortunate matter. It raises issues of domestic violence and inequity on the basis of gender. The Court wishes to note that the circumstances of this case may warrant intervention by the Minister if he so chooses.
On the basis of the evidence before it, however, the application is dismissed.
I certify that the preceding one hundred and eighteen (118) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 24 March 2021
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