Azimi v Minister for Immigration & Border Protection
[2015] FCCA 2549
•25 September 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AZIMI v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR | [2015] FCCA 2549 |
| Catchwords: MIGRATION – Review of decision by Migration Review Tribunal – whether Migration Review Tribunal’s decision affected by jurisdictional error – whether Migration Review Tribunal’s decision made in the absence of probative evidence – whether Migration Review Tribunal failed to conduct review required by law – whether Migration Review Tribunal failed to have proper regard to supporting evidence – whether Migration Review Tribunal’s decision was irrational or arbitrary – whether Migration Review Tribunal failed to consider all claims – whether Migration Review Tribunal’s decision is unreasonable – no jurisdictional error – application dismissed. |
| Legislation: Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5F, 31, 65, 338, 357A, 359A, 359AA, 360, 474 Migration Regulations 1994 (Cth), reg.2.01, Schedule 2 – cls.309.21, 309.22, 309.211, 309.221. |
| Cases Cited: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Minister for Immigration & Multicultural & Indigenous Affairs v VOAO & VOAP [2005] FCAFC 50 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 Huynh v Minister for Immigration and Citizenship [2013] FCA 103 SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2006) 228 CLR 152 |
| Applicant: | AHMADULLAH AZIMI |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1507 of 2014 |
| Judgment of: | Judge Emmett |
| Hearing date: | 15 September 2015 |
| Date of Last Submission: | 15 September 2015 |
| Delivered at: | Sydney |
| Delivered on: | 25 September 2015 |
REPRESENTATION
| Solicitor for the Applicant: | Mr Nigel Dobbie (Dobbie and Devine Immigration Lawyers Pty Ltd) |
| Counsel for the Respondents: | Ms Rachel Francois |
| Solicitors for the Respondents: | DLA Piper Australia |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1507 of 2014
| AHMADULLAH AZIMI |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Migration Review Tribunal dated 29 April 2014 and handed down on 30 April 2014 (“the MRT”).
Prior to considering the proceeding before this Court, these Reasons provide the relevant procedural background, a summary of the legislative framework, a summary of the applicant’s claims in support of a Partner (Provisional) (Class UF) visa, a summary of the decision of a delegate of the first respondent (“the Delegate”), and a summary of the MRT’s review and decision.
Background
The applicant in this matter is the sponsor of the visa applicant.
On 22 September 2010, the applicant was granted a subclass 814 visa on the basis of an interdependent relationship through a sponsorship by his previous, same sex partner.
On 8 February 2012, the visa applicant lodged an application for a Partner (Provisional) (Class UF) visa with the Department of Immigration and Citizenship (“the Department”) on the basis of a spousal relationship with the applicant.
On 12 March 2013, the Delegate refused the visa applicant’s application for a partner (provisional) visa.
On 15 March 2013, the applicant, as the sponsor of the visa applicant, lodged an application for review of the Delegate’s decision by the MRT.
On 30 April 2014, the MRT affirmed the decision of the Delegate not to grant a partner (provisional) visa.
On 3 June 2014, the applicant filed an application in this Court seeking judicial review of the MRT’s decision.
Legislative framework
Pursuant to s.65(1) of the Act, if satisfied of a number of matters, the first respondent may grant a visa. Section 31(1) of the Act provides that there are to be prescribed classes of visa. One class of visa is a partner (provisional) visa (reg.2.01 of the Migration Regulations 1994 (Cth) (“the Regulations”) and Schedule 1 to the Regulations).
At the time of the visa application, and at the time of the MRT’s decision, the visa applicant was required to meet the requirements in cls.309.211 and 309.221 of Schedule 2 to the Regulations for the grant of a partner (provisional) visa, as follows:
“309.21—Criteria to be satisfied at time of application
309.211
(1) The applicant meets the requirements of subclause (2) or (3).
(2) The applicant meets the requirements of this subclause if the applicant is the spouse or de facto partner of:
(a) an Australian citizen; or
(b) an Australian permanent resident; or
(c) an eligible New Zealand citizen.
…
309.22—Criteria to be satisfied at time of decision
309.221
The applicant continues to satisfy the criterion in clause 309.211.”
(Emphasis added.)
‘Spouse’ is defined in s.5F of the Act, as follows:
“Spouse
(1) For the purposes of this Act, a person is the spouse of another person if, under subsection (2), the 2 persons are in a married relationship.
(2) For the purposes of subsection (1), persons are in a married relationship if:
(a) they are married to each other under a marriage that is valid for the purposes of this Act; and
(b) they have a mutual commitment to a shared life as husband and wife to the exclusion of all others; and
(c) the relationship between them is genuine and continuing; and
(d) they:
(i) live together; or
(ii) do not live separately and apart on a permanent basis.”
(Emphasis added.)
Under s.338 of the Act, a decision to refuse to grant a partner (provisional) visa is a decision which may be reviewed by the second respondent.
The requirements of the natural justice hearing rule are exhaustively stated in Division 5 of Part 5 of the Act (s.357A of the Act). Division 5 Part 5 includes ss.359A and 360, which provide that:
“359A Information and invitation given in writing by Tribunal
(1) Subject to subsections (2) and (3), the Tribunal must:
(a) give to the Applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review.
360 Tribunal must invite Applicant to appear
(1) The Tribunal must invite the Applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.”
Section 359AA of the Act permits the MRT to give orally to an applicant clear particulars of any information that the MRT considers would be the reason or part of the reason for affirming the decision under review. The MRT must ensure that the applicant understands the relevance of the information and the consequences of any information being relied upon. The MRT must also invite the applicant to comment on or respond to the information and advise the applicant that the applicant may seek additional time to comment on or respond to the information.
Under s.474(2) of the Act, a decision of the second respondent is a 'privative clause decision'. Under s.474(1)(a) of the Act, a privative clause decision is final and conclusive.
However, a purported decision of the second respondent which is affected by jurisdictional error is not a decision which is made under the Act and is, therefore, not a privative clause decision (see Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476).
The Delegate’s decision
On 22 May 2012, the applicant, together with the visa applicant, attended an interview with the Delegate.
On 7 March 2013, the Delegate conducted an additional interview with the applicant.
On 12 March 2013, the Delegate refused the visa applicant’s application for a partner (provisional) visa as the Delegate was not satisfied that the visa applicant and the sponsor were in a genuine and continuing relationship.
The Delegate considered the evidence before the Department and found that, though the visa applicant and the applicant were lawfully married for the purposes of the Act, they were not mutually committed to a shared life as husband and wife, to the exclusion of all others. Further, the Delegate was not satisfied that the relationship between the visa applicant and the applicant was genuine and continuing.
In particular, the Delegate noted that the applicant had been granted a subclass 814 visa on 22 September 2010 on the basis of a sponsorship by his then Australian same sex partner. The Delegate noted that the applicant had provided information to the Department indicating that his relationship with his previous partner ended approximately eight months after his marriage to the visa applicant, on 22 November 2011. When asked about this at the interview with the Delegate, the applicant stated that his relationship with his previous partner ended approximately five to six months after his marriage to the visa applicant.
The Delegate was not satisfied that the requirements in cls.309.211 and 309.221 of Schedule 2 to the Regulations for the grant of a Partner (Provisional) (Class UF) visa were met.
Accordingly, the visa application was refused.
The MRT’s review and decision
On 15 March 2013, the applicant lodged an application for review of the Delegate’s decision by the MRT, and further documents, including a statement in support by his migration representative, a Statutory Declaration declared by the applicant on 11 April 2014, bank statements, photographs, as well as evidence of air travel and communication between the applicant and visa applicant.
On 21 February 2014, the MRT wrote to the applicant informing him that the MRT had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the applicant to attend a hearing on 22 April 2014 to give oral evidence and present arguments.
On 22 April 2014, the applicant attended the MRT hearing and gave evidence.
The MRT noted that it had before it the Department’s file, the Delegate’s decision record and other materials available to it from a range of sources.
The MRT explored the applicant’s claims with him in some detail at the hearing and put to him concerns it had about his evidence, noting his responses.
The MRT was satisfied on the evidence before it that, in accordance with s.5F of the Act, the applicant and the visa applicant were validly married to each other for the purposes of the Act.
However, the MRT had significant concerns in relation to the applicant’s previous relationship and his overall credibility.
The applicant had informed the MRT that his relationship with his previous sponsoring partner ended around September or October 2010 and that the reference in other evidence to November 2011 was erroneous. However, the MRT found it to be implausible that the applicant’s relationship broke down immediately after the grant of an Australian visa grounded on the basis of that relationship.
The MRT also found that the applicant had gone to significant lengths to ensure that his immediate family was not aware of his previous relationship and the basis upon which he had obtained his Australian residence. The MRT found that the evidence before it indicated that the applicant was willing to be untruthful and had knowingly misrepresented the nature of his relationship with his sponsoring partner to others, including his immediate family and the visa applicant.
Given the above, the MRT was of the view that that the applicant had not been in a committed and genuine relationship with his previous partner, and that the sole purpose of the applicant’s previous relationship was to obtain a migration outcome.
Accordingly, the MRT found that the applicant was not a witness of truth and had not been truthful in his previous migration application.
The MRT took into consideration the applicant’s submission that his previous relationship was not relevant for the purposes of the present application. However, the MRT was of the view that the circumstances of the applicant’s previous relationship were relevant given that the requirements for the grant of the present visa were “almost identical” to the grant of the previous visa.
Another matter of concern for the MRT was that the applicant and visa applicant did not appear to have had meaningful discussions about their future, including whether and when they might have children. In this regard, the MRT found that the evidence of the applicant and the visa applicant appeared to be contradictory.
The MRT accepted that the applicant’s present relationship with the visa applicant was different from his previous same sex relationship in that there was evidence of extensive family and social recognition of the present relationship. The MRT further accepted that the parties had lived together during periods of cohabitation, and that the applicant had provided financial and emotional support to the visa applicant.
However, given the adverse credibility finding made by the MRT in respect of the applicant, the MRT questioned the veracity and the probative value of evidence provided by the applicant in relation to the present visa application. The MRT was of the view that, though considerable documentary evidence was provided by the applicant in support of the present application, it was not of probative value because “same or similar evidence had been presented in the past with respect to a relationship that was not genuine”. The MRT also noted that such evidence may be available irrespective of whether the parties were in a genuine, committed and ongoing relationship.
The MRT considered the applicant not to be a person of credibility and was of the view that the applicant was willing to be untruthful about his relationship in order to achieve a migration outcome in relation to the present application for a partner (provisional) visa.
As such, the MRT was not satisfied on the evidence before it that the applicant and the visa applicant were mutually committed to a shared life as husband and wife to the exclusion of all others; that their relationship was genuine and ongoing; and that the visa applicant was the spouse of the sponsor as defined by the Act. As such, the MRT was not satisfied that the applicant and the visa applicant were, at the time of the application and at the time of the decision, in a spousal relationship in accordance with the Act.
Accordingly, the MRT was not satisfied that the requirements of cls.309.211 and 309.221 of Schedule 2 to the Regulations for the grant of a Partner (Provisional) (Class UF) visa were met. As such, the MRT affirmed the decision of the Delegate not to grant the visa applicant a Partner (Provisional) (Class UF) visa.
The proceeding before this Court
The applicant was represented before this Court by Mr Nigel Dobbie, solicitor.
By consent, the applicant was granted leave to rely on the grounds contained in a Further Amended Application filed on 20 July 2015. Ground 1 was not pressed and Grounds 5 and 6 were withdrawn by Mr Dobbie. The grounds relied upon by the applicant are as follows:
“2. The decision was made in the absence of probative evidence
Particulars:
(A) The decision was made in the absence of probative evidence:
(i) The Tribunal found that the Applicant’s previous interdependent relationship was never genuine. There was no evidence supporting that finding.
(ii) The Tribunal found that the Applicant had given the same or similar evidence had been presented in the past with respect to a relationship that was not genuine.
when the same or similar evidence had not been given.
(iii) The Tribunal found that the Applicant’s wife had stated that she might do an English course for about six months and then have children,
when no such claim was made by the Applicant’s wife.
3. The Tribunal failed to conduct the review required by law
Particulars:
(A) The Tribunal failed to conduct the review required by law.
(i) The Tribunal failed to have proper regard to the supporting evidence before it, despite having to do so, because once it formed a view that the Applicant’s previous interdependent relationship was not genuine, it considered that any evidence given in relation to the Applicant’s present relationship was not of probative value.
(ii) The Tribunal was required to determine the application for review on the merits of the case before it. It failed to do so because once it formed an adverse view about the Applicant’s previous interdependent relationship, it did not look at the merits of the case before it.
4. The decision of the Tribunal is irrational or arbitrary
Particulars:
(A) The decision of the Tribunal is irrational or arbitrary.
(i) The decision of the Tribunal is irrational or arbitrary because the Tribunal failed to have proper regard to the supporting evidence before it, because of its finding, unsupported by evidence, that the Applicant’s previous relationship was not genuine. Not only was there no evidence that the Applicant’s previous relationship was not genuine, the Tribunal was required to determine the application before it on the evidence before it, not on evidence not before it, and which, in any case, did not go to the merits of the application that was before it.
(ii) The Tribunal’s finding that the Applicant’s previous relationship was not genuine was arbitrary or irrational.
(iii) The Tribunal’s unwillingness to accept that the Applicant could have a homosexual relationship and then a heterosexual relationship was arbitrary or irrational in the context of the Applicant being bisexual.
…
7. The Tribunal failed to have regard to consider the claims made
Particulars:
(A) The Tribunal failed to consider the claims made.
(i) The Tribunal failed to consider the Applicant’s claim that he had not told his family about his previous interdependent relationship; namely that he is a Muslim and that he feared harm if his family found out about that relationship.
8. The decision of the Tribunal is unreasonable
Particulars:
(A) The decision of the Tribunal is unreasonable.
(i) The Tribunal failed to put to the visa applicant, Ms Abdul Hakeem, for comment:
(a) That it considered that the Applicant and Ms Abdul Hakeem had prepared extensive evidence of communication, photographs and evidence of joint activities, overseas travel and evidence from third parties and that it was essentially fabricated to show that a genuine relationship existed when it was not a genuine relationship.
(b) That it considered that the Applicant had not been in a genuine relationship with his former sponsor and that would impugn the genuine relationship claimed by Ms Abdul Hakeem and the Applicant.
(c) That the Applicant had told the Tribunal that Ms Abdul Hakeem did not have plans to have children soon, when Ms Abdul Hakeem said that once she improves her language, she might have a child.
(B) The decision of the Tribunal is unreasonable.
(i) The evidence before the Tribunal was such that reasonable minds would not differ in considering that the relationship between the Applicant and Ms Abdul Hakeem was genuine.
Ground 2
The applicant’s solicitor, Mr Dobbie, submitted that the following findings made by the MRT were made in the absence of probative evidence:
1)that the applicant’s previous same sex relationship was never genuine;
2)that the applicant had given same or similar evidence in the past with respect to a relationship that was not genuine;
3)that the applicant’s wife might do an English course for about 6 months and then have children.
Mr Dobbie submitted that the MRT had relied on these findings in concluding that the applicant and the visa applicant were not in a spousal relationship and, in the absence of probative evidence to support those findings, such reliance constituted jurisdictional error.
It is well accepted that if the MRT’s decision is based on a finding in respect of which there is no supporting probative evidence, the MRT will have fallen into jurisdictional error (see Minister for Immigration & Multicultural & Indigenous Affairs v VOAO & VOAP [2005] FCAFC 50 at [5] per the Full Court of the Federal Court of Australia).
Ground 2(1)
A fair reading of the MRT’s decision record makes clear that the MRT’s finding that the applicant’s earlier same sex relationship was not genuine was based on concerns that were expressed by the MRT in light of the breakdown of that relationship immediately after the applicant was granted an Australian visa on the basis of that relationship. The MRT also had concerns about the genuineness of that relationship in circumstances where the applicant had not informed the visa applicant or his parents about his earlier same sex relationship. The MRT found that the applicant went to considerable lengths to ensure that his immediate family was not aware of his previous relationship and the basis on which he had obtained residence in Australia.
The MRT found that the above conduct suggested that the applicant is willing to be untruthful with others with respect to his relationships and that he is willing to misrepresent the nature of his relationships to others, including his immediate family. The MRT also noted that whilst the visa applicant was aware that the applicant had been in a prior de facto relationship, she appeared to have no knowledge that it was a same sex relationship. The MRT found that this conduct suggested that the sole purpose of the prior relationship was to achieve a migration outcome for the applicant for the grant of an Australian visa.
In making those findings, the MRT had regard to the applicant’s assertion that his relationship with his former partner broke down and they moved on, and that such is the unpredictability of life. The MRT accepted that that may be so. However, having regard to the breakdown of the relationship immediately upon the grant of the visa, the MRT did not accept that the relationship broke down because the parties moved on. The MRT found that the timing of the breakdown of the relationship and the fact that the applicant had deliberately misinformed his family about the nature of that relationship suggested that the applicant had not been truthful in relation to his interdependent visa application. This led the MRT to find that the applicant had never been in a genuine and committed interdependent relationship with his previous same sex partner.
The MRT further found that the applicant’s evidence as to when his previous interdependent relationship had broken down was not consistent. On the applicant’s evidence, either his previous relationship broke down at the same time that his visa was granted, in which case, as stated above, the MRT formed the view that the sole purpose of that relationship was to enable the applicant to obtain Australian residence. Alternatively, the relationship broke down some six months after the relationship with the visa applicant had commenced, in which case, the applicant had not been truthful in his oral evidence to the MRT when he claimed to have been in a committed relationship with the visa applicant at a time when he was still in the same sex relationship.
In the circumstances, there was probative evidence to support the MRT’s finding that the applicant’s previous interdependent relationship was not genuine. That finding was open to the MRT on the evidence and material before it and for the reasons it gave, including the adverse credibility findings. It is well established that credibility findings are a matter par excellence for the MRT (see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).
Accordingly, Ground 2(1) is not made out.
Ground 2(2)
In relation to the second finding in respect of which the applicant contends there was no probative evidence, namely, that the applicant had given the same or similar evidence in the past with respect to a relationship that was not genuine, the solicitor for the applicant submitted that the evidence in respect of the earlier same sex relationship and the present relationship with the visa applicant were plainly different. The relevant finding of the MRT is as follows:
“20. Essentially, the Tribunal does not consider that the evidence in support of the relationship, that has been presented with this application, is of probative value because the same or similar evidence had been presented in the past with respect to a relationship that was not genuine.”
Immediately prior to that finding, the MRT found that the applicant had been able to present evidence in relation to similar aspects of the applicant’s relationship with his previous same sex partner, which the MRT found was never genuine. Counsel for the first respondent, Ms Francois, submitted that a fair reading of the MRT’s finding makes clear that the MRT was referring to the evidence to support a conclusion by the fact-finder that the interdependent relationship that the applicant had previously been in required that the relationship be a genuine and committed relationship. The particular evidence referred to by the MRT is the financial and emotional support and comfort enjoyed by the applicant in his previous same sex relationship and the financial and emotional support and comfort that the applicant has enjoyed with the visa applicant.
The MRT found that evidence of the kind including extensive evidence of communication, photographs and evidence of joint activities, overseas travel and evidence from third parties, was evidence that may be available whether or not the parties were in a genuine relationship and whether or not they had a commitment to such a relationship. The MRT found that the fact that the parties have taken steps to obtain such evidence does not necessarily reflect on the nature of their relationship. The MRT found that the gathering of such evidence may equally reflect on the commitment of the parties to prepare evidence necessary to show that the parties were in a spousal relationship in order to achieve a favourable migration outcome. The MRT found that “having previously been successful in an interdependency visa application, the review applicant would be well familiar with the evidentiary requirements for the grant of the visa.”
Further, the MRT stated in its decision record that the same considerations which needed be satisfied by the applicant to have obtained the interdependent visa would have to be satisfied in the present case in order for the visa applicant to obtain a partner (provisional) visa on the basis of a spousal relationship with the applicant. That is akin to the considerations which were relevant to the grant of the interdependent visa to the applicant on the basis of his previous same sex relationship, the applicant needed to satisfy the decision maker that his present relationship with the visa applicant was genuine and continuing and that there was a mutual commitment to a shared life to the exclusion of all others.
In the circumstances, there was probative evidence to support the MRT’s finding that the same or similar evidence had been presented by the applicant in the past.
Accordingly, Ground 2(2) is not made out.
Ground 2(3)
In relation to the third finding, that the applicant’s wife had stated that she might do an English course for about 6 months and then have children, the transcript demonstrates that in fact it was the applicant who said the English course may be about 6 months. Whether it was the applicant or the visa applicant who made the statement that the visa applicant may do an English course for about 6 months is not a finding upon which the MRT based its decision.
The transcript of the MRT hearing was annexed to an affidavit of Ma Rosario Xiella Devine, affirmed on 28 July 2014 and read by the applicant without objection.
The transcript of the MRT hearing supports the MRT’s finding that the parties did not appear to have had a meaningful discussion on their plans to have children in the future. There was no relevant reliance placed by the MRT as to the length of the proposed English course to be undertaken by the visa applicant being about 6 months. I accept the first respondent’s submission that, on one view, there was not a specific finding by the MRT that the study period would be 6 months but that, even if it was a finding, it was not a critical step in the MRT’s reasoning such as to give rise to jurisdictional error.
Accordingly, Ground 2(3) is not made out.
Ground 3
Ground 3 makes the general assertion that the MRT failed to conduct the review required by law in that it failed to have proper regard to the supporting evidence in relation to the relationship between the applicant and the visa applicant. This assertion is based on a view that once the MRT formed the view that the applicant’s previous interdependent relationship was not genuine, it did not consider the evidence given by the applicant of his present relationship with the visa applicant to be of probative value.
A fair reading of the MRT’s decision record does not support such a contention.
As is clear from these Reasons, in Ground 2(1) above, the MRT considered all the evidence before it. Simply because the MRT found that particular evidence was of no probative value does not mean that the MRT did not consider it or failed to have proper regard to it. The MRT identified the reasons why it did not place probative value on the material provided by the applicant and visa applicant in support of their relationship. The MRT found that the applicant, having presented similar evidence of a past relationship that the MRT found not to be genuine, also found that such evidence would be available to the parties whether or not the parties were in a genuine relationship and whether or not both had a commitment to such a relationship.
A fair reading of the MRT’s decision record makes clear that the MRT accepted the genuineness of the wedding between the applicant and the visa applicant and acknowledged the “considerable amount of documentary evidence” provided by the parties. The MRT accepted that the applicant provided financial support to the visa applicant and that the applicant travelled to Afghanistan three times after the marriage and, further, that the couple had travelled to India together. The MRT also found that there was extensive communication between the parties and a social recognition of their relationship. The MRT also noted that much of the documentary evidence before it was not before the Delegate.
The MRT accepted that the present relationship was widely known and recognised by family and friends but, given that the visa applicant is the first cousin of the applicant, the MRT also noted that the parties have a reasonably good knowledge of each other’s circumstances, having been in contact since they were children. Relevantly, the MRT found that this knowledge may be reflective of their familial relationship, rather than necessarily indicative of a committed spousal relationship as defined by the Act.
In the circumstances, the MRT’s adverse credibility finding in respect of the applicant’s interdependent relationship, whilst relevant, was not the sole reason that the MRT found the documentary material in support of the present application not to be of probative value. I do not accept the assertion that because the MRT formed an adverse view of the applicant’s previous interdependent relationship and the genuineness of that relationship, that it did not consider the merits of the case before it. As stated above, the MRT went into some detail to identify that material in support which it did accept in respect of the present relationship and the reasons why, ultimately, it did not find that evidence probative of a genuine and committed relationship in terms of the Act.
These findings were open to the MRT on the evidence and material before it and for the reasons it gave.
Accordingly, Ground 3 is not made out.
Ground 4
Ground 4 asserts that the decision of the MRT is irrational or arbitrary because the MRT failed to have proper regard to the supporting evidence before it of the present relationship and because there was no evidence to support the MRT’s finding that the applicant’s previous relationship was not genuine.
Those findings have been addressed at Grounds 2 and 3 above. As stated above, those findings were open to the MRT on the evidence and material before it and for the reasons it gave.
Ground 4 also refers to the MRT’s unwillingness to accept that the applicant could have a homosexual relationship and then a heterosexual relationship and that such unwillingness was arbitrary or irrational in the context of the applicant being bisexual.
The transcript discloses exchanges between the MRT member and the applicant where the MRT was exploring the applicant’s prior interdependent relationship. It was not unreasonable for the MRT to seek to clarify with the applicant why the applicant referred to his interdependent partner as “she”. A fair reading of the MRT’s decision record makes clear that its concerns about the genuineness of the applicant’s interdependent relationship was not because it was homosexual. Rather, it was because of the timing of the breakdown of the relationship and the secrecy with which the relationship had been maintained from the applicant’s family and, indeed, the visa applicant.
Accordingly, Ground 4 is not made out.
Ground 7
Ground 7 asserts that the MRT failed to consider the applicant’s claim that he had not told his family about his previous interdependent relationship because he is Muslim and feared harm if his family found out about that relationship.
Again, a fair reading of the MRT’s decision record does not support the contention in Ground 7. No further oral submissions were made by the solicitor for the applicant in support of Ground 7.
The MRT specifically referred to the applicant’s explanation that he did not tell the visa applicant or his parents about his previous interdependent relationship “because of religious and cultural norms” and that, as such, a relationship would not be accepted. It was open to the MRT not to accept that explanation.
The MRT was not bound to accept uncritically the applicant’s explanation and evidence (see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596 Kirby J; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70 per Wilcox J). Nor does the MRT have to possess rebutting evidence before holding that a particular assertion was not made out (see Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J).
Accordingly, Ground 7 is not made out.
Ground 8
Ground 8 asserts that the decision of the MRT was unreasonable because the MRT failed to put to the visa applicant for comment that it might not accept the evidence of the applicant and the visa applicant that the present relationship was genuine; that the MRT failed to put to the visa applicant its concerns about the genuineness of the applicant’s prior relationship; and, that the applicant and visa applicant had given contradictory evidence about having a child.
In support, the solicitor for the applicant referred the Court to Huynh v Minister for Immigration and Citizenship [2013] FCA 103 (“Huynh”). In Huynh, the Migration Review Tribunal engaged in an almost perfunctory exploration with the visa applicant by telephone regarding the genuineness of the spousal relationship in that case. The whole of the transcript of the telephone interview is reproduced at [22] in Huynh and comprises barely a page.
In the case before this Court, the telephone interview with the visa applicant comprised some 14 pages of transcript. The transcript discloses that the MRT explored in some detail the relationship between the applicant and the visa applicant. In particular, the MRT raised with the visa applicant the existence of the applicant’s prior relationship. It was apparent from the visa applicant’s answers that she was not aware that it was a homosexual relationship or that this was how the applicant had obtained his permanent residency.
Additionally, it was apparent from the transcript that the evidence of the applicant and the visa applicant was not wholly consistent in relation to their intentions to have children. As stated above, the transcript makes clear that it was open to the MRT to find that the parties had not had a meaningful discussion on that matter and that it is an important aspect of a marriage and a future together. The MRT was also concerned that the parties did not appear to have discussed what may happen if the visa was not granted and that the failure to have such a discussion suggested that the parties did not view the relationship as a long term one.
It being apparent to the MRT that the visa applicant was not aware of the nature of the applicant’s prior interdependent relationship, there was no obligation on the MRT to put that information to the visa applicant as there was nothing that the visa applicant could possibly have said that could have impacted on the MRT’s finding in relation to that issue. Indeed, one might think that the MRT was exercising some degree of tact and sensitivity in relation to the visa applicant in not raising such a matter on the telephone in circumstances where the MRT had been told by the applicant of the cultural difficulties that may exist with regard to acceptance of homosexuality.
In relation to the inconsistency that the MRT found to exist between the evidence of the applicant and the visa applicant as to their future plans to have children, such inconsistency is no more than an instance of the thought processes of the MRT and as such is not information that the MRT was required to give to the visa applicant for comment (SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [18] per the High Court of Australia).
The genuineness of the relationship between the applicant and the visa applicant was an issue in respect of which the parties were on notice arising from the Delegate’s decision (see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2006) 228 CLR 152 at [35] and [47] per the High Court of Australia).
To the extent that Ground 8(1)(a) asserts that the MRT should have put to the visa applicant that the evidence of extensive communication, photographs, joint activities, oversees travel and evidence from third parties was fabricated, no such finding was made by the MRT. The MRT largely accepted all of that material. As stated above, the MRT was ultimately not satisfied that it was of probative value in satisfying the MRT as to the genuineness of the relationship. The adverse credibility findings were made in respect of the applicant. No adverse credibility finding was made in respect of the visa applicant. In order to be entitled to the visa, the MRT must be satisfied that the parties are in a genuine and committed relationship. It is not sufficient for one of the parties to be in a genuine and committed relationship and the other not.
The requirements of the visa clearly mandate that the parties have a mutual commitment to a shared life as husband and wife to the exclusion of all others and that the relationship between them is genuine and continuing. As stated above, the MRT’s findings were open to it on the evidence and material before it and for the reasons it gave.
I do not accept that the evidence before the MRT was such that reasonable minds would not differ in considering the relationship between the applicant and the visa applicant was not genuine.
Accordingly, Ground 8 is not made out.
Conclusion
A fair reading of the MRT’s decision record makes clear that the MRT understood the claims being made by the applicant, explored those claims with the applicant and the visa applicant at a hearing, and, had regard to all material provided in support. The MRT put to the applicant matters of concern it had about his evidence and noted the applicant’s responses.
The MRT then made findings based on the evidence and material before it. Those findings of fact were open to the MRT on the evidence and material before it and for the reasons it gave. A fair reading of the MRT’s decision record makes clear that the MRT reached conclusions based on the findings made by it and to which it applied the correct law.
In the circumstances, the MRT complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.
The MRT’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The proceeding before this Court should be dismissed with costs.
I certify that the preceding ninety-seven (97) paragraphs are a true copy of the reasons for judgment of Judge Emmett
Associate:
Date: 25 September 2015
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