Aujla v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 336
•19 March 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Aujla v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 336
File number(s): SYG 1436 of 2019 Judgment of: JUDGE DRIVER Date of judgment: 19 March 2021 Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a partner visa – sponsor withdrawing sponsorship – applicant claiming family violence – Tribunal finding there was no genuine relationship at the time of the visa application – whether the Tribunal decision was unreasonable or whether the Tribunal failed to pay proper regard to evidence considered – no jurisdictional error. Legislation: Migration Act 1958 (Cth), ss 5CB, 360
Migration Regulations 1994 (Cth)
Cases cited: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593
C7A/2017 v Minister for Immigration and Border Protection [2020] FCAFC 63
Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107
Minister for Immigration and Border Protection v Angkawijaya [2016] FCAFC 5
Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1
Minister for Immigration and Border Protection v SZVFW (2018) 357 ALR 408
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Singh v Minister for Home Affairs [2019] FCAFC 3
Sun v Minister for Immigration and Border Protection [2017] FCA 1270
Number of paragraphs: 52 Date of hearing: 24 February 2021 Place: Sydney Solicitors for the Applicant: Mr N Dobbie of Dobbie and Devine Immigration Lawyers Pty Ltd Counsel for the Respondents: Mr G Johnson Solicitors for the Respondents: Minter Ellison ORDERS
SYG 1436 of 2019 BETWEEN: DAMANDEEP SINGH AUJLA
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE DRIVER
DATE OF ORDER:
19 MARCH 2021
THE COURT ORDERS THAT:
1.The application filed on 12 June 2019 is dismissed.
REASONS FOR JUDGMENT
JUDGE DRIVER:
INTRODUCTION AND BACKGROUND
The applicant, Mr Aujla, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 21 May 2019. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant Mr Aujla a temporary partner visa.
The following statement of background facts is derived from the submissions of the parties.
Mr Aujla first arrived in Australia in August 2008 on a student visa, which was cancelled on 28 February 2012. He was subsequently granted additional student visas in 2012 and 2015. On 16 December 2015 Mr Aujla applied for the partner visa on the basis of his relationship with Ms Simran Kaur, an Australian citizen. Mr Aujla claimed to have commenced cohabitating with the sponsor as a de facto couple in December 2015.
On 30 June 2016, Ms Kaur notified the Minister’s Department that the relationship had ended and that she was withdrawing her sponsorship of Mr Aujla.[1] On 8 July 2106, the Minister’s Department notified Ms Kaur that it received her withdrawal notification.[2]
[1] Court Book (CB) 126
[2] CB 140
On 8 July 2016 an officer of the Minister’s Department sent a letter to Mr Aujla inviting him to comment on information it had received that his relationship with Ms Kaur had ceased.[3] On 5 August 2016 Mr Aujla, through his representative, advised the Minister’s Department that he had been the victim of family violence.[4]
[3] CB 129
[4] CB 142
On 5 August 2016, Mr Aujla informed the Minister’s Department that he was relying on the family violence provisions.[5] The family violence provisions allow a person to be eligible to be granted a partner visa, even if the relationship with the visa applicant and his or her sponsor breaks down. However, the family violence has to have occurred during the spousal or de facto relationship of the visa applicant and the sponsor.[6]
[5] CB 142
[6] Relevantly, see subclause 820.221(1), 820.221(3), and regulations 1.21 and 1.23 of the Migration Regulations 1994 (Cth) (Regulations)
On 25 August 2016, Mr Aujla sent an email to the Minister’s Department,[7] with the following attached, in relation to the claim of family violence:
(a)statutory declaration from Mr Joseph D’Silva, registered psychologist, declared on 22 August 2016;[8]
(b)statutory declaration from Ms Vidya Sagar Athota, member of the Australian Association of Social Workers Australia, declared on 24 August 2016;[9] and
(c)statutory declaration from Mr Aujla, declared on 24 August 2016.[10]
[7] CB 149-153
[8] CB 154-159
[9] CB 160-161
[10] CB 162-164
On 19 January 2017, a delegate of the Minister emailed Mr Aujla, putting him on notice that he had to be satisfied that Mr Aujla was the de facto partner of Ms Kaur, prior to the cessation of the relationship.[11]
[11] CB 166-170
On 6 March 2017 Mr Aujla provided additional evidence to the Minister’s Department regarding the genuineness of his relationship with Ms Kaur, prior to its cessation.[12]
[12] CB 171
In particular, Mr Aujla emailed supporting documents to the Minister’s Department, to evidence that he and Ms Kaur were in a de facto relationship at the time of the claimed family violence:[13]
(a)ANZ Bank Access Advantage Cheque Statements for Mr Aujla for the periods 18 May 2015 to17 July 2015, 17 July 2015 to 18 September 2015, and from 18 November 2015 to 18 January 2016;[14]
(b)photographs of Mr Aujla and Ms Kaur together, and at social occasions with others;[15]
(c)statutory declaration from Mr Amardeep Singh Virk, declared on 17 February 2017;[16]
(d)CBA Smart Access statement for Mr Aujla and Ms Kaur, for the periods 11 December 2015 to 31 December 2015, and from 1 January 2016 to 30 June 2016;[17]
(e)Australian Electoral Commission Confirmation of electoral enrolment letter for Ms Kaur, dated 18 May 2016;[18]
(f)statutory declaration from Ms Amritpal Kaur Virk, declared on 23 February 2017.[19]
[13] CB 171; CB 171-225
[14] CB 175-194
[15] CB 195-212
[16] CB 213-214
[17] CB 215-222
[18] CB 223
[19] CB 224-225
On 2 June 2017, the delegate refused the visa application.[20]
[20] CB 226-254; see CB 231-235 for the decision record
The delegate was not satisfied that Mr Aujla and Ms Kaur were in a de facto relationship at the time the visa application was made. The delegate reasoned:[21]
I have considered all the evidence and information you have provided in relation to the matters prescribed under regulation 1.09A. When you lodged the visa application, you provided statements about your relationship and very limited documents as evidence of your claims. When given the opportunity to provide additional evidences, you have not provided any reliable documents to support your claims of being in a genuine relationship. As you have not provided convincing evidence to demonstrate that you are the de facto of the sponsor, as defined under section 5CB of the Migration Act, I consider that you were not in a genuine and continuing de facto relationship at any time of application.
I acknowledge your claim of Family Violence committed by your sponsor. However, I have not taken the family violence claims into consideration because I am not satisfied that you and your sponsor were in a genuine and continuing de facto relationship at the time of application. As I am not satisfied that you were in a genuine and continuing de facto relationship at the time of application, I therefore find that you do not meet the requirements of subclause 820.211(2)(a).
[21] CB 234
On 22 June 2017, Mr Aujla sought review of the delegate’s decision at the Tribunal. He included the delegate’s decision record with the review application.[22]
[22] CB 255-256; CB 257-284
Although Mr Aujla had erroneously indicated on the application for review form that he was seeking review of a subclass 801 visa application refusal, this was later corrected to reflect that the review was for the subclass 820 visa application refusal.[23]
[23] CB 287-289
On 16 October 2018, Mr Aujla was invited to appear before the Tribunal on 8 November 2018, in accordance with s 360 of the Migration Act 1958 (Cth) (Migration Act).[24]
[24] CB 301-303
Mr Aujla accepted the invitation, and provided the details of two witnesses, Amardeep Singh Virk and Amritpal Kaur Virk, and included the relevance of the evidence that they would give (essentially, that the witnesses had full knowledge/all knowledge of the de facto relationship between Mr Aujla and Ms Kaur).[25] These witnesses had previously provided statutory declarations to the Minister’s Department in support of the visa application.[26]
[25] CB 312
[26] CB 213-214; CB 224-225
The hearing was held as scheduled.[27] After the hearing, and before the Tribunal made its decision, Mr Aujla provided further documents in support of the application under cover of a letter dated 22 November 2018,[28] namely:
[27] CB 314-316
[28] CB 317-CB 345
(a)a letter from his registered migration agent, which explained the relevance of documents that were provided under cover of that letter;[29]
[29] CB 317-319
(b)statutory declaration from Mr Gurbakhshish Singh, stated to be declared on 21 January 2018, but witnessed by the Applicant’s registered migration agent, in his capacity as a Justice of the Peace, on 21 November 2018;[30]
[30] CB 320-321
(c)statutory declaration from Ms Manjeet Kaur, declared on 19 November 2018;[31]
[31] CB 322-323
(d)a photograph of a group of women, two of whom Mr Aujla’s registered migration agent describes as Ms Kaur and Ms Manjeet Kaur;[32]
[32] CB 324; CB 317 (described as “Photo 1”)
(e)statutory declaration from Mr Gurlivleen Singh, declared on 18 November 2018;[33]
[33] CB 325-326
(f)a photograph of Mr Aujla, the sponsor and Mr Gurlivleen Singh together;[34]
[34] CB 327; CB 318 (described as “Photo 10”)
(g)statutory declaration from Mr Kamalpreet Singh, declared on 19 November 2018;[35]
[35] CB 328-329
(h)a photograph of Mr Aujla, Ms Kaur and Mr Kamalpreet Singh and others together at a restaurant;[36]
[36] CB 330; CB 318 (described as “Photo 8”)
(i)an Eticket for the sponsor’s mother;[37]
[37] CB 331-332; CB 318
(j)an IKEA receipt for a bed and other items, dated 12 December 2015;[38]
(k)an Optus account for Mr Aujla, dated 19 January 2016;[39]
(l)statutory declaration from Ms Sandeep Virk, declared on 22 November 2018;[40]
(m)a photograph of a group of women, and said to include Ms Kaur and Ms Sandeep Virk;[41]
(n)a photograph of Ms Kaur at Wet n Wild;[42]
(o)a photograph of Mr Aujla and Ms Kaur on a bed;[43]
(p)a photograph of Mr Aujla and Ms Kaur in a car;[44]
(q)a photograph of Ms Kaur and the landlady (Ms Pooja Madan) and her son;[45]
(r)a photograph of Mr Aujla and Ms Kaur in a car;[46]
(s)a photograph of Mr Aujla and Ms Kaur;[47]
[38] CB 333; CB 318
[39] CB 334-335; CB 318 (the relevance being that it showed that Mr Aujla was in Kiama/Wollongong on 21 December 2015, supporting a claim that he, Ms Kaur and friends went to Jamberoo Recreation Park (near Kiama) together on that day)
[40] CB 336-337: CB 319
[41] CB 338; CB 319 (described as “Photo 3”)
[42] CB 339; CB 319 (described as “Photo 2”)
[43] CB 342; CB 319 (described as “Photo 4”)
[44] CB 340; CB 319 (described as “Photo 7”)
[45] CB 341; CB 319 (described as “Photo 9”)
[46] CB 344; CB 319 (described as “Photo 5”)
[47] CB 343; CB 319 (by a process of elimination, this is probably the photograph described as “Photo 6”)
As noted above, on 21 May 2019 the Tribunal affirmed the decision under review.[48] The Tribunal was not satisfied that Mr Aujla had been in a genuine de facto relationship with Ms Kaur for the purposes of s 5CB of the Migration Act at the time of the visa application.
[48] CB 352
THE CURRENT PROCEEDINGS
These proceedings began with a show cause application filed on 12 June 2019. Mr Aujla continues to rely upon that application, although Grounds 1 and 3(b)(c) were not pressed. Ground 3(i)(a) was only formally pressed in light of Federal Court authority in the matter of Sun v Minister for Immigration and Border Protection[49] per Reeves J at [31].
[49] [2017] FCA 1270
Grounds 2 and 3(i)(a) and (d) are in the following terms:
2.The Second Respondent's decision is arbitrary or capricious or legally unreasonable.
Particulars:
(i)The Tribunal's decision is arbitrary or capricious or legally unreasonable, having regard to the evidence before it, and having regard to the following:
(a)The Tribunal found that the Applicant and his then sponsor did not live together, despite the evidence to the contrary. It did so by failing to have regard to, or by deconstructing, the supporting evidence that showed that the requisite relationship between the Applicant and his then sponsor existed.
(b)The Tribunal imposed its own value judgement in relation to what constitutes a relationship, evident by its finding that the relationship between the Applicant and his then sponsor was:
'at a relatively immature stage at the time of application and accordingly it considers their commitment to each other at that time to be commensurate and does not consider that the parties regarded their relationship as a long-term one.'
(c)The Tribunal required the declarants who provided supporting statutory declarations to have knowledge of the inception and development of the relationship between the Applicant and his then sponsor, and of family violence occurring.
(d)The Tribunal emphasized that the arranged marriage of the Applicant's then sponsor in August 2015, with a person other than the Applicant, showed that the Applicant and his then sponsor were not genuinely in a committed relationship, when the claimed de facto relationship did not commence until 11 December 2015.
3.The Second Respondent failed to have proper regard to the evidence of the de facto relationship before it, thereby failing to conduct the review required by law.
Particulars:
(i) The Tribunal failed to have proper regard to:
(a)The supporting statutory declarations provided by the Applicant in support of the application, including the statutory declarations provided in relation to the claim of family violence.
…
(d)Supporting photographs of the Applicant and his then sponsor together and with other people.
The only evidence I have before me is the court book filed on 28 August 2019.
CONSIDERATION
Mr Aujla’s contentions
Grounds 2 and 3 essentially overlap, and were dealt with together in Mr Aujla’s submissions.
Ground 2 asserts that the Tribunal’s decision is arbitrary, or capricious or legally unreasonable, the particulars being:
(a)the Tribunal found that Mr Aujla and Ms Kaur did not live together, despite the evidence to the contrary. It is said to have done so by failing to have regard to, or by deconstructing, the supporting evidence that showed that the requisite relationship between Mr Aujla and Ms Kaur existed;
(b)the Tribunal is said to have imposed its own value judgement in relation to what constitutes a relationship, evident by its finding that the relationship between Mr Aujla and Ms Kaur was:
at a relatively immature stage at the time of application and accordingly it considers their commitment to each other at that time to be commensurate and does not consider that the parties regarded their relationship as a long-term one.
(c)the Tribunal is said to have required the declarants who provided supporting statutory declarations to have knowledge of the inception and development of the relationship between Mr Aujla and Ms Kaur, and of family violence occurring;
(d)the Tribunal emphasised that the arranged marriage of Ms Kaur in August 2015, with a person other than Mr Aujla, showed that Mr Aujla and Ms Kaur were not genuinely in a committed relationship, when the claimed de facto relationship did not commence until 11 December 2015.
Ground 3 asserts that the Tribunal failed to have proper regard to the evidence of the de facto relationship before it, thereby failing to conduct the review required by law. The particulars being relied on are:
Particulars:
The Tribunal failed to have proper regard to:
(a)The supporting statutory declarations provided by the Applicant in support of the application, including the statutory declarations provided in relation to the claim of family violence.
…
(d)Supporting photographs of the Applicant and his then sponsor together and with other people.
In relation to the social aspects of the relationship, the Tribunal reasoned at [47]-[49]:[50]
The applicant also provided two statutory declarations from friends with his application and a further four statutory declarations to the Tribunal post the hearing date. These declarations do not give any convincing reasons as to why they believe the relationship is genuine other than acknowledging the parties had lived together and had separated and give little evidence in relation to the inception and development of the relationship over time and are generic in nature. The Tribunal places moderate weight on the statutory declarations.
Overall, there is little convincing evidence that the applicant and sponsor have represented themselves to other people as being in a partner relationship with each other or to family or the wider community, or that they undertook regular joint social activities or travelled together or that they attended any significant events together. The two witnesses provided evidence of visiting the applicants when they lived together but little other supporting evidence of the parties’ social activities or them representing themselves to other people as being in a de facto relationship. The Tribunal accepts the witnesses visited the applicant and sponsor and had seen them in each other’s company.
Based on the information provided, the Tribunal finds there is little evidence that the applicant and sponsor represented themselves to family and friends as being in a committed partner relationship, or are regarded by others as such. The Tribunal is not satisfied the social aspects of the relationship indicate that the parties were in a genuine and continuing relationship. The Tribunal places little weight on this aspect of the relationship.
[50] CB 358
When one has regard to the statutory declarations provided after the hearing, one can see that five statutory declarations were provided, not four. This might, at first blush, appear to be looking at the decision with an eye keenly attuned to the perception of error.[51] It is submitted, however for Mr Aujla that this is not the case.
[51] Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 at [30]
The Tribunal reasoned that the statutory declarations did not give any convincing reasons as to why the declarants believed the relationship is genuine other than acknowledging the parties had lived together and had separated and give little evidence in relation to the inception and development of the relationship over time and are generic in nature.
This, however, is said to be incorrect:
(a)in the statutory declaration of Mr Amardeep Singh Virk, declared on 17 February 2017,[52] Mr Virk sets out how he knew of the relationship of Mr Aujla and Ms Kaur from the beginning of their relationship, when they started going out in May 2015, and how the relationship progressed and became more serious and that they decided to move in together. Mr Virk states that they had expressed their love to their families, but that there was resistance from Ms Kaur’s family; this included, essentially, Ms Kaur getting the cold shoulder from her mother when she was still living at the family home. Mr Virk confirmed that Mr Aujla would drop Ms Kaur off at work, as his wife also worked at the same place. He would see them both every morning. He also confirmed that Mr Aujla would occasionally drop off lunch to Ms Kaur. Later, when Mr Aujla and Ms Kaur started to live together, there was ongoing interference from Ms Kaur’s mother. He also observed that they would have arguments, which he observed is common in most couples. Mr Virk declared:[53]
[52] CB 213-214
[53] CB 213
There was ongoing interference from Simran's mother and every time she would speak to her mother, her mother would make sure to express her dislike for Damandeep and this made [S]imran very [agitated] as well.
We have a very close knit friend circle and we would get together at all the family gatherings together, Damandeep and Simran would come as a [couple] and from what we could see, they were very happy and committed.. After the continuous discouragement from Simran's family she would sometimes get upset.
Things changed a lot after Simran went to India for a cousin's wedding in late January 2016. She was introduced to another guy by her mother there.
Damandeep and Simran continued to live in a genuine relationship. They will go out for day trips and they seemed happy as a couple. I have seen some of their photos of togetherness even taken in April/ May 2016 that would clearly suggest that they were no less than any other couple in a genuine and happy relationship.
(b)in the statutory declaration of Ms Amritpal Kaur Virk, declared on 23 February 2017, Ms Virk confirms that Mr Aujla is a good friend of her husband, and that she had known Mr Aujla for about three years. She confirms that she met Ms Kaur through Mr Aujla and she was also working with Ms Kaur at the same place, and they are still good friends. She also confirmed that that Mr Aujla would drop Ms Kaur off at work. She also confirmed that later, when Mr Aujla and Ms Kaur started to live together, there was ongoing interference from Ms Kaur’s mother. Ms Virk declared:[54]
[54] CB 224-225
It got to a stage where it became unbearable for Simran to continue living in that situation at home with her mother. That's when both Damandeep and Simran decided to move in together. It was a big relief for both of them and they were very happy living together.
We have a very small and close friend circle so we would all get together for all occasions like birthdays or anniversaries or even a festival or even for outings.
Damandeep and Simran would always come together as a couple. They seemed very happy together.
There was ongoing interference from Simran's mother. Everytime she spoke to her mother, she would express her dislikes about Damandeep and would make really bad comments about him as well. It was fine at first but then Simran started getting upset after talking to her morn. It made her really frustrated and she would then take out her frustration on Damandeep at times.
(c)in the statutory declaration of Gurbakhshish Singh, stated to be declared on 21 January 2018, but witnessed by Mr Aujla’s registered migration agent, in his capacity as a Justice of the Peace, on 21 November 2018, Mr Singh states that he is a close friend of Mr Aujla, that they used to meet up almost every day. He declared that he saw how the relationship started, how it “got serious” and they moved in together. He also stated that Ms Kaur’s mother was against the relationship, gave Ms Kaur a really hard time, and even Ms Kaur’s brother was not talking to her at one stage. Mr Singh states:[55]
[55] CB 320
Damandeep and Simran were living as a genuine couple when they moved in together in December 2015. They were happy and really supportive of each other. They had big plans for their future together.
I was really surprised when they became separated. I asked Damandeep the reason for that, I was told that they had a few issues and that Simran was under a lots of pressure because of constant opposition from Simran's family. She didn't wanted to [lose] her family because of Damandeep even though she knew that from the beginning.
Damandeep was such a jolly guy but all this changed him entirely. He just went really quite and depressed. He also had to seek professional help as well. Simran might have moved on with her life but Damandeep is still stuck. His studies were going good and he only had a few subjects left. He even had to give up his studies to support them financially.
(d)in the statutory declaration of Ms Manjeet Kaur, declared on 19 November 2018, Ms Kaur states that she and Ms Kaur are good friends, were part of an Indian folk dance group and performed together. She states:[56]
[56] CB 322-323
I had met Damandeep a lot of times with Simran. Damandeep always came to watch our performances and we would occasionally catch up for coffee or dinner sometimes.
Damandeep would drop her and pick her off from work almost everyday. He would take her for breakfast before he dropped her off for work while she was living with her family. He would then take her for lunch before he dropped her off back at her house. This was because her mother would never cook for her and wouldn't talk to her. The circumstances at her family home were very bad and she was finding it hard to live there. Even her brother wouldn't talk to her and she would spend most of her time in her room really upset and crying.
Simran's mother was always against her relationship with Damandeep and she was in a lot of pressure. Simran's mother would not talk to her or cook for her while she was living with them and this made Simran very upset and sad. That's why Damandeep and Simran decided to move in together in December 2015.
Damandeep and Simran were very happy when they moved in together. Simran was very relaxed as finally she got an atmosphere where she was living without stress. She would still talk to her morn and brother but they always disapproved of their relationship with Damandeep.. Her mother would always mention her dislike of Damandeep and would always make negative comments about Damandeep. Damandeep was still studying before they moved in together but had to give up studies so that he could work full time and support Simran both emotionally and financially.
(e)Ms Manjeet Kaur also states that she used to visit Ms Aujla and Ms Kaur regularly, at their home in Woodcroft. She used to pick up and drop off Ms Kaur. She also states that:[57]
[57] CB 323
They were in a loving, caring and genuine relationship. They were really supportive of each other. Every time Simran and I got together, she would always happily talk about Damandeep and how lucky she is to have found him as a life partner. They would always come together as a happy couple at all social gatherings.
Simran went to India on her cousin's wedding on January 2016 for a few weeks. Every time Simran and I spoke, she was very happy. It came as a shock to me when Damandeep and Simran decided to go their separate ways in June 2016. I never expected that their relationship would finish like this.
(f)in the statutory declaration of Mr Gurlivleen Singh, declared on 18 November 2018, Mr Singh states that he and Mr Aujla are first cousins, that they were living together since he arrived in Australia in February 2015, and that they have been close since they were children. Mr Singh also confirms how Mr Aujla supported Ms Kaur, by working as a taxi driver, how he regularly visited them when they started living with Sandeep Singh, that they were seen as a close couple by the close circle of friends, Ms Kaur was not happy that he was working as a taxi driver, and he confirms the interference in the relationship of Mr Aujla and Ms Kaur by her mother. He states:[58]
[58] CB 325
We share everything with each other. Damandeep Singh told me from the beginning of their relationship when they first started going out In May 2015. I have been a witness to how their relationship started and how It progressed into a serious relationship.
Damandeep and I were living together at the time when they first started dating. I use to meet up with Simran almost everyday when she use to come over at our place. She became part of our family very quickly. I could see how my brother, Damandeep Singh and Simran were really happy together.
I became part of Damandeep's friend circle when I got here to Australia. Simran became part of our friend circle very quickly. We all use to get together on special occasions and family gatherings. They were a genuine and committed couple.
Damandeep and Simran had expressed their love to their families but there was a lots of resistance from Simran's mother and brother. Our side of the family were very happy that Damandeep and Simran had found each other and were really happy together.
(g)in the statutory declaration of Mr Kamalpreet Singh, declared on 19 November 2018, Mr Singh states Mr Aujla and Ms Kaur were living as a genuine couple when they moved in together. He also states:[59]
[59] CB 328
We use to regularly catch up for lunch or dinner and over time I got to know Simran well. They had big plans for their future together. We were all very happy that they have found each other as they were really happy together.
I was staying with Damandeep when my family moved to Brisbane and I was still posted here in Parramatta police. I would regularly stay with Damandeep while I was here for work before Damandeep and Simran moved in together at 38 Glenbawn Place, Woodcroft NSW 2767. They were living there with another close friend of ours, Sandeep Singh and his family. Even after they moved in together, I would visit them occasionally at their new home. They seemed very happy and very committed.
During this time i get to know Simran quiet well. I remember during a dinner in Blacktown once i spoke to her in length about their future plan. She was very frank and expressed her desire to get married to Daman. During the conversation I informed her that I am resigning from my current job and moving to Queensland permanently due to cheaper housing and laid-back lifestyle. Simran sounded very excited for me and suggested perhaps Daman and she will move to Brisbane too.
I was really surprised when Simran moved out in June 2016 and they became separated. When I asked them about their decision to go their separate ways, I was told that there was a lot of resistance from Simran's family and she was under a lot of pressure.
(h)in the statutory declaration of Ms Sandeep Virk, declared on 19 November 2018, Ms Virk states that Mr Aujla and her brother are good friends. She states:
I have known Damandeep Singh for the last 10 years as he's been a very good friend of my brother Amardeep.
I speak to my brother Amardeep regularly and have known about Damandeep for a very long time. I was here in Sydney for 1O days with my daughter, Kudrat Boparai and my house mate Sehaj Dhanoa in December 2015 to see my brother and sister-in-law
We not only explored Sydney with my brother and his wife but also met all his friends. There I met with Damandeep and h.is live-in partner, Simran. Since Damandeep is very close to my brother, we were all together almost everyday.
We all went to Woodcroft, Sydney to Sandeep Singh's house for his son's birthday party. Damandeep and Simran had just moved in together and were living in the same house with Sandeep Singh and his family. They seemed genuinely in love with each other and Simran even mentioned plans to get married at the end of that year.
We also went to wet and wild together. Damandeep Singh and Simran, like any couple, spent the whole time together, taking pictures and exploring the rides.
Both Simran and Damandeep were a very active part of my brother's immediate friend circle. So everyone in the close friend's group knew about them. They attended every get together as a couple. When I left Sydney 10 days later, I even promised Simran to return to Australia for their impending nuptials as my 3 years old had taken a liking to the loving couple who never lost an opportunity to spoil her.
I was expecting to get an invite to the wedding and then suddenly, my brother told me that Simran, under pressure from her family had moved out and was about to get married to someone else. ft was a shock as they had seemed to be truly in love with each other.
Mr Aujla submits that the statutory declarations go significantly further than what the Tribunal stated at [47]-[49] of its reasons, extracted above.
The Tribunal also reasoned that it gave little weight to the statutory declarations that Mr Aujla and Ms Kaur shared a household and the responsibilities of a household.[60] It is said to have given no reasons why it gives little weight to the statutory declarations, which included information that Mr Aujla gave up study to work as a taxi driver to be the financial provider in the relationship. It also is said to have given no reasons as to why that support was not a financial aspect of the relationship (which it went on to give no weight).[61]
[60] CB357-358 at [43]
[61] CB 358 at [44]
The Tribunal stated at [44][62]:
The Tribunal finds, based on the evidence before it, there is little supportive evidence that indicates that the applicant and sponsor were in a genuine and continuing de facto relationship prior to cessation of the relationship. Based on the evidence provided, the Tribunal finds that the parties did not live together and there was no sharing of the housework. There is no evidence of any joint responsibility for the care and support of children as there are no children of the relationship.
[62] CB 358
The evidence before it is said to have shown that Mr Aujla and Ms Kaur did live together. The Tribunal is said to have given no reasons as to why the statutory declarations or the evidence of Mr Aujla should not be accepted in relation to Mr Aujla and Ms Kaur living together.
In my view, the Tribunal did not err as alleged. The impugned paragraphs in the Tribunal’s decision record are at [47][63] and [23].[64] At [47] the Tribunal stated:
The applicant also provided two statutory declarations from friends with his application and a further four statutory declarations to the Tribunal post the hearing date. These declarations do not give any convincing reasons as to why they believe the relationship is genuine other than acknowledging the parties had lived together and had separated and give little evidence in relation to the inception and development of the relationship over time and are generic in nature. The Tribunal places moderate weight on the statutory declarations.
[63] CB 358
[64] CB 355
It is not disputed that Mr Aujla provided seven statutory declarations to the Tribunal in all, with five of those being provided after the hearing. There is at least a factual error therefore in the paragraph where the Tribunal refers to four statutory declarations being provided after the hearing date.
At [23] the Tribunal provides a non exhaustive list of the documentary material provided to it. Only three of the seven statutory declarations are specifically identified. No express reference is made by the Tribunal to the statutory declaration of Gurlivleen Singh[65] and Kamalprit Singh[66] Of those, the statutory declaration of Gurlivleen Singh is more substantial and provides statements more or less consistent with the statements made in the other statutory declarations. Although Gurlivleen Singh describes himself as Mr Aujla’s brother, he is in fact his cousin.
[65] CB 325-326
[66] CB 328-329
In my view, it is unlikely that the Tribunal overlooked entirely either of the statutory declarations which are not specifically mentioned in the Tribunal’s reasons. It follows that the reference to four rather than five post hearing submissions at [47] of the Tribunal’s reasons is not material.
Neither am I persuaded that the Tribunal failed to give proper, genuine or realistic consideration to the statutory declarations provided to it. The manner in which the Tribunal came to its decision is certainly not arbitrary or capricious or legally unreasonable.
In that regard, I agree with and adopt the Minister’s submissions concerning the extant grounds of review.
Ground 1
Mr Aujla challenges various findings of fact by the Tribunal on the basis of unreasonableness, capriciousness and arbitrariness. Whilst those terms each have specific meaning, it is to be recalled in this context that he concepts of jurisdictional error and legal unreasonableness does not depend on definitional formulae or on one verbal description rather than another.[67] Further, the test for unreasonableness is necessarily stringent because the Courts will not lightly interfere with the exercise of a statutory power involving an area of discretion.[68] Ultimately, the question of whether a decision is legally unreasonable is answered by reference to whether or not the decision is within the scope of the statutory authority conferred on the decision-maker. The question involves an assessment of whether the decision was lawful or authorised having regard to the scope, purpose and objects of the statutory source of power.[69]
[67] Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 at [2] (Allsop CJ)
[68] Minister for Immigration and Border Protection v SZVFW (2018) 357 ALR 408 at [11] (Kiefel CJ)
[69] Singh v Minister for Home Affairs [2019] FCAFC 3 at [61] (Reeves, O’Callaghan and Thawley JJ), citing Stretton and SZVFW at [54]-[60] (Gageler J); [78]-[79] (Nettle and Gordon JJ); [135] (Edelman J)
Mr Aujla contends that the Tribunal’s decision was arbitrary, capricious or legally unreasonable by reference to four particular findings of the Tribunal or features of its reasoning process. First, the Tribunal’s finding that Mr Aujla and Ms Kaur did not live together, despite the evidence to the contrary. The Tribunal’s finding at [44] that Mr Aujla and Ms Kaur did not live together was not arbitrary or unreasonable because there was evidence to the contrary. The Tribunal explained why it did not give much weight to the evidence Mr Aujla relied upon. For instance, in respect of the statutory declarations of Mr Aujla’s friends, the Tribunal noted that the evidence was that the witnesses had seen the couple in each other’s company, but that was not, in the Tribunal’s assessment, worthy of much weight. The Tribunal’s findings were open to it.
Secondly, Mr Aujla submits that the Tribunal imposed its own “value judgment” in relation to what constitutes a relationship. In a statutory context that necessarily requires an evaluation by the repository of power of evidence going to various factors indicative of a genuine relationship, it is inevitable that some form of “value judgment” will be imposed. As was stated by the Chief Justice of the Federal Court in Minister for Immigration and Border Protection v Angkawijaya[70] at [2]:
The task of the delegate and the Tribunal was not straightforward. By reference to the terms of the Migration Act 1958 (Cth) and the regulations thereunder, a value judgment was required to be formed about whether two people had a mutual commitment to a shared life to the exclusion of all others that was genuine and continuing. That task involved careful and sensitive consideration of the evidence of the human relationship presented to the Tribunal. The task was a mixture of fact-finding and evaluative characterisation.
[70] [2016] FCAFC 5
The plurality of the Full Federal Court in Angkawijaya, to similar effect stated at [61]:
An assessment of the various matters and considerations which are relevant to the application of s 5CB and reg 1.09A necessarily involves an evaluation of those matters and considerations on the part of the relevant decision-maker, who must balance them against each other having regard to all the relevant circumstances. As Conti J stated in Jian Xin Lui v Minister for Immigration & Multicultural Affairs [2001] FCA 1437 at [23]:
In determining the propriety of one person’s commitment to a marriage, the very nature of the task requires an evaluation, based on human experience, understanding and perception of the available spectrum of potentially relevant circumstances of each particular case.
Thirdly, Mr Aujla submits that the Tribunal required declarants who provided statutory declarations to have knowledge of the inception and development of the relationship. That is not so. The Tribunal at [47] regarded the statutory declarations generally to be generic in nature, and lacking in sufficient detail about why the declarants considered the relationship to be genuine. The Tribunal found that the statement gave “little evidence” (not “no evidence”) in relation to the inception and development of the relationship. That assessment was open to the Tribunal to make within its jurisdiction to make findings of fact about the evidence presented. The Tribunal’s decision was not unreasonable, or arbitrary, because of its assessment about the detail provided in the statutory declarations.
Fourthly, Mr Aujla points to the Tribunal’s reference to Ms Kaur’s arranged marriage in August 2015 as showing that Mr Aujla and Ms Kaur were not genuinely in a committed relationship. While Mr Aujla did claim, and the Tribunal accepted, that the relationship formally commenced in December 2015, Mr Aujla had claimed that he met Ms Kaur for the first time in May 2015, and that in June 2015 Ms Kaur spoke to her mother regarding their relationship.[71] This was at the same time that arrangements were underway for Ms Kaur’s arranged marriage to another man. At the time of the visa application it appeared that Ms Kaur remained married to the other man.[72] It was in this factual context that the Tribunal reasoned at [53][73] that if the parties were in a genuine and committed relationship that the sponsor would not have entered into an arranged marriage.
[71] CB 78
[72] CB 79
[73] CB 359
The ground does not establish error in the Tribunal’s decision.
Ground 3
In the third ground Mr Aujla contends that the Tribunal failed to give proper consideration to several of the statutory declarations the applicant provided both to the Minister’s Department, and to the Tribunal. Whilst the Tribunal was required to have regard to the statutory declarations provided by Mr Aujla,[74] it is also well-established that a failure by the Tribunal to refer to a matter expressly does not necessarily lead to a finding a matter has not been considered by a decision-maker.[75] For this reason, the Court should not infer that the Tribunal failed to have regard to any particular statutory declaration, and should not infer that the Tribunal did not read those declarations.
[74] Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107
[75] Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at [47] (French, Sackville and Hely JJ); and C7A/2017 v Minister for Immigration and Border Protection [2020] FCAFC 63 at [101] (Katzmann, Wigney and Abraham JJ)
The Tribunal identified at [16], [23], [43], [47] that it had received statutory declarations from Mr Aujla. The Tribunal’s erroneous reference to “four”, rather than five statutory declarations at [47] is an insufficient basis for the Court to infer the Tribunal overlooked one of the declarations. The Tribunal gave reasons for the deficiencies it identified in the statements to establish that Mr Aujla and the sponsor lived together, and as to their social aspects. In relation to social aspects, it must not be overlooked that the Tribunal gave moderate weight to the declarations at [47].
Mr Aujla’s argument as presented amounts to an invitation to engage the Court in a review of the merits of those statements, and whether they supported the factors prescribed in regulation 1.09A of the Migration Regulations 1994 (Cth) (Regulations). It is not for the Court to assess the contents of the declarations and determine the weight that ought to have given to that evidence. That was a matter within the Tribunal’s jurisdiction. Mr Aujla submits that the Tribunal “deconstructed” Mr Aujla’s evidence. There is no indication in the Tribunal’s reasons that it did other than assess the evidence that was before it by reference to the factors it was required under the Regulations to consider.
The Tribunal did not need to refer to all aspects of each of the statutory declarations, and the Court should not infer that it failed to do so. The Tribunal’s reasoning in respect of the declarations was open to it. It did not fail to assess the evidence as was required of it in conducting its review.
Mr Aujla further contends that the Tribunal should have, but failed to, have regard to the statutory declarations he submitted to the Minister’s Department in support of his family violence claim. Presumably Mr Aujla refers here to the declaration of Vidya Athota[76] and his own declaration.[77] There was no error by the Tribunal in not referring to these statutory declarations. They were plainly provided by Mr Aujla, along with a statutory declaration from a registered psychologist, for the purposes of making a family violence claim under regulation 1.24. In circumstances where the issue of family violence was not required to be considered by the Tribunal, the Tribunal did not need to assess the evidence in support of it. There is no evidence that Mr Aujla, or his representative, requested that the Tribunal have regard to these statutory declarations for another purpose, ie, to establish that he was in a genuine de facto relationship. No error is made out.
[76] CB 160
[77] CB 163
Neither do I discern any error by the Tribunal at [46] of its reasons in dealing with the photographs provided in support of the application.
CONCLUSION
I conclude that Mr Aujla has failed to establish that the decision of the Tribunal is affected by any jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Driver. Associate:
Dated: 19 March 2021
1
11
0