AZIZI v Minister for Immigration
[2018] FCCA 1005
•26 April 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AZIZI v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1005 |
| Catchwords: ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error. |
| Legislation: Migration Act 1958, ss.5CB, 375A, 474 Migration Regulations 1994, cls.820.211, 820.221 of sch.2 |
| Cases cited: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Johnson v Johnson (2000) 201 CLR 488 Godley v Minister for Immigration & Multicultural and Indigenous Affairs [2004] FCA 774 Minister for Immigration & Citizenship v SZIAI (2009) 83 ALJR 1123 Minister for Immigration & Citizenship v SZGUR (2011) 241 CLR 594 Re Ruddock; Ex parte Applicant S154/2002 (2003) 201 ALR 437 Minister for Immigration & Multicultural and Indigenous Affairs v WAFJ [2004] FCAFC 5 Minister for Immigration & Border Protection v Singh [2016] FCA 575 VWFP vMinister for Immigration & Multicultural and Indigenous Affairs [2006] FCA 231 SZWCO v Minister for Immigration & Border Protection [2016] FCA 51 NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 1414 FCR 1 SZHFC v Minister for Immigration & Multicultural and Indigenous Affairs [2006] FCA 1359 Minister for Immigration & Citizenship v SZRKT (2013) 212 FCR 99 Minister for Immigration & Citizenship v SZJSS (2010) 243 CLR 164 Minister for Immigration & Citizenship v Khadgi (2010) 190 FCR 248 |
| Applicant: | NIMA AZIZI |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3243 of 2017 |
| Judgment of: | Judge Cameron |
| Hearing dates: | 7 March 2018, 20 March 2018 |
| Date of Last Submission: | 20 March 2018 |
| Delivered at: | Sydney |
| Delivered on: | 26 April 2018 |
REPRESENTATION
| Solicitors for the Applicant: | Mr L. Jacob of Sydney Immigration Law |
| Counsel for the First Respondent: | Mr G. Johnson |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3243 of 2017
| NIMA AZIZI |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
INTRODUCTION
The applicant is a citizen of Iran. On 30 December 2014 he lodged an application for, relevantly, a Partner (Temporary) (Class UK) subclass 820 visa on the basis of his relationship with his sponsor, who is an Australian citizen. On 18 October 2016 his application was refused by a delegate of the first respondent (“Minister”). The applicant then applied to the Administrative Appeals Tribunal (“Tribunal”) for a review of that departmental decision. He was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
The proceeding was commenced out of time but, at the hearing, time was extended to the day the applicant filed his initiating application.
In proceedings for judicial review of a Tribunal decision, the Court’s task is to determine whether the relevant Tribunal decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Act; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
RELEVANT LEGISLATION
The criteria for the grant of a subclass 820 visa are set out in pt.820 of sch.2 to the Migration Regulations 1994 (“Regulations”). One of the criteria which the applicant had to satisfy at the time he made his application was cl.820.211, which relevantly provided:
820.21—Criteria to be satisfied at time of application
820.211
…
(2) An applicant meets the requirements of this subclause if:
(a)the applicant is the spouse or de facto partner of a person who:
(i) is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; …
At the time a decision was made on his application, the applicant was also required to satisfy cl.820.221 which relevantly provided;
820.22—Criteria to be satisfied at time of decision
820.221
(1)In the case of an applicant referred to in subclause 820.211(2), (5), (6), (7), (8) or (9), the applicant either:
(a)continues to meet the requirements of the applicable subclause; or
(b)meets the requirements of subclause (2) or (3).
The term “de facto partner” is defined s.5CB of the Act in the following terms:
5CB De Facto Partner
De facto partners
(1)For the purposes of this Act, a person is the de facto partner of another person (whether or not of the same sex or different sex) if, under subsection (2), the person is in a de facto relationship with the other person.
De facto relationship
(2)For the purposes of subsection (1), a person is in a de facto relationship with another person if they are not in a married relationship (for the purposes of 5F) with each other but:
(a)they have a mutual commitment to a shared life to the exclusion of all others; and
(b)the relationship between them is genuine and continuing; and
(c) they:
(i) live together; or
(ii) do not live separately and apart on a permanent basis; and
(d) they are not related by family …
Section 375A of the Act provides:
375A Certain information only to be disclosed to Tribunal
(1)This section applies to a document or information if the Minister:
(a)has certified, in writing, that the disclosure, otherwise than to the Tribunal, of any matter contained in the document, or of the information, would be contrary to the public interest for any reason specified in the certificate (other than a reason set out in paragraph 375(a) or (b)); and
(b)has included in the certificate a statement that the document or information must only be disclosed to the Tribunal.
(2)If, pursuant to a requirement of or under this Act, the Secretary gives to the Tribunal a document or information to which this section applies:
(a)the Secretary must notify the Tribunal in writing that this section applies to the document or information; and
(b)the Tribunal must do all things necessary to ensure that the document or information is not disclosed to any person other than a member of the Tribunal as constituted for the purposes of the particular review.
BACKGROUND FACTS
As noted earlier, the applicant applied for a combined partner visa on 30 December 2014. That application was sponsored by Ms Fiona Hunt, an Australian citizen. In support of his application the applicant provided a statement of relationship history dated 3 September 2014. The applicant appeared before the Tribunal on 28 August 2017 when he provided further information in support of his application. The Tribunal also received oral evidence from Ms Hunt. The Tribunal considered the following claims made by the applicant in his statement of relationship history and in the parties’ oral evidence before it:
a)in his original application the applicant claimed that he and Ms Hunt entered into a committed relationship in October 2014. At the Tribunal hearing the applicant stated that this had occurred in October 2012 and that on 8 July 2014 they had registered their relationship in New South Wales. When questioned by the Tribunal about the discrepancy in his evidence concerning when the committed relationship commenced, the applicant stated that he and Ms Hunt had been in a committed relationship since 2012 and had started living together in 2014;
b)the applicant stated to the Tribunal that he was studying full time and living at Ms Hunt’s home. Between August 2015 and November 2016 he and Ms Hunt had lived separately on a part-time basis because of his work commitments;
c)the applicant claimed that he was unemployed and relied on his mother, who lived in Iran, to send him money for his living expenses. Ms Hunt stated that she paid for the daily living expenses and that the applicant made no financial contribution. She claimed that she did not ask the applicant how much he received from his mother because she did not wish to intrude;
d)the applicant and Ms Hunt said that they held separate bank accounts and that the applicant had given Ms Hunt money for daily living expenses when he was employed;
e)Ms Hunt stated to the Tribunal that she and the applicant did not have any mutual friends. They stated to the Tribunal that their families were aware that they were in a de facto relationship; and
f)Ms Hunt had supported the applicant through his addiction to prescribed drugs and an investigation by the Health Care Complaints Commission of New South Wales (“HCCC”).
The applicant provided the following documents to the Tribunal;
i)a statutory declaration from each of Ms Hunt’s brother, sister-in-law and a friend mutual to him and Ms Hunt;
ii)nine additional character references concerning him; and
iii)a number of photographs of Ms Hunt and him.
375A Certificate
At its hearing on 28 August 2017 the Tribunal informed the applicant that certain information in his departmental file was subject to a 375A certificate which prevented it, on public interest grounds, from disclosing to him any document, matter or information covered by that certificate, which it found was a valid certificate. The relevant information subject to the 375A certificate indicated that the HCCC had “prosecuted” the applicant for misconduct and that he had been deregistered as a medical practitioner. The certificate also covered information to the effect that the Minister’s department had received an anonymous dob-in regarding the applicant. In its decision the Tribunal stated that it was not satisfied that the information contained in the applicant’s file and subject to the 375A certificate was relevant to its consideration of a partner visa and accordingly gave it no weight.
The Tribunal’s decision and reasons
The Tribunal was not satisfied that the applicant and Ms Hunt were in a genuine continuing relationship as de facto partners at the time of the applicant’s visa application on 30 December 2014, with the consequence that the applicant did not satisfy cls.820.211 and 820.221 of sch2 to the Regulations. As summarised by the Minister in his written submissions, which summary I adopt, the Tribunal based its decision on the following findings and reasons:
…
5.The Tribunal set out the evidence of the parties in respect of the financial aspects of their relationship. In this regard, the Tribunal noted that the parties had no joint liabilities or major assets and that there was no evidence of pooling of financial resources or sharing of daily living expenses.
6.The Tribunal set out the evidence of the parties in relation to the nature of their household. It noted that the parties gave evidence that they had not purchased any household items together and there was limited evidence to show that the couple had established a joint household. The Tribunal was not satisfied that the parties shared household duties and responsibilities.
7.Turning to the social aspects of the relationship, the Tribunal considered that there was limited evidence and recognition from other people that the parties represented themselves other than to their immediate family as being in a genuine and continuing relationship. It also considered that there was limited evidence before it that the parties planned or undertook social activities together. The Tribunal placed no weight on the Form 888 statutory declarations or other character references provided, as the character references did not address the relationship and the statutory declarations gave little insight into the relationship and why it was believed to be genuine and continuing.
8.… The Tribunal recorded that there was little evidence before it to indicate the parties were in a relationship between October 2012 and July 2014 (when they registered their relationship in NSW).
9.In relation to the parties’ evidence that they lived apart on a part-time basis for 15 months between August 2015 and November 2016, the Tribunal was concerned that there was a lack of commitment to the relationship which undermined their claims of companionship and emotion[al] support to each other. However, the Tribunal noted that the parties spoke openly about the applicant’s de-registration as a medical practitioner and his addiction to a prescribed drug. On the basis of the parties’ evidence on this issue, the Tribunal accepted that the parties provided each other with a degree of companionship and emotional support.
10. The Tribunal also noted that the applicant had not made the sponsor a beneficiary of his will or superannuation and found that there was limited evidence before it to indicate the parties viewed the relationship as a long term one.
(references omitted)
PROCEEDINGS IN THIS COURT
In his amended application the applicant made four allegations.
Ground 1
The applicant alleged in the first ground of the amended application:
The Tribunal's decision was affected by jurisdictional error in that it acted in breach of natural justice as its decision was induced or affected by bias or alternatively by apprehended bias. The Tribunal did not act in a way that is fair and just according to 357A of the Migration Act 1958 (Cth) (the Act).
Particulars
1.1The member states within the transcript on page 5 at [20] that the Applicant was “prosecuted” by the NSW Health Care Complaints Commission.
1.2Notwithstanding the weight placed upon the information within the 375A certificate, with no evidence of criminal prosecution, it is submitted that such an assertion is gratuitous and prejudicial as the issue of the applicant's credibility is made to be known as critical when the member states on page 5 at [10] within the Transcript “The tribunal see this as leaning towards credibility.
The applicant has been struck off the medical register for the time being following action by the HCCC in the New South Wales Civil and Administrative Tribunal (“NCAT”). The Tribunal referred to this in paras.11, 12 and 23 of its decision, where it said:
11.The Tribunal put to the applicant that information in the Department's file indicated that he had been prosecuted by the Health Care Complaints Commission for misconduct.
12.The applicant gave a detailed account of being in a depressed state of mind and self-prescribing a drug of addiction and the effects it had upon him in the workplace. The applicant informed the Tribunal that he had been prosecuted by the Health Care Complaints Commission in March 2016 and had lost his job and his registration as a medical practitioner had been cancelled.
…
23.The parties spoke openly about the applicant and his addiction to a prescribed drug and his prosecution by Health Care Complaints Commission. The applicant stated that he has been supported by the sponsor during this turbulent time of his life. …
The applicant submitted that the use by the Tribunal of the word “prosecuted” when, in reality, the HCCC’s action had been in the nature of civil, disciplinary proceedings, had been “gratuitous and prejudicial” in circumstances where the transcript of the Tribunal’s hearing recorded the Tribunal member as having said that he saw information covered by the s.375A certificate, which included information concerning the disciplinary proceedings, “as leaning towards credibility”.
I accept that the Tribunal’s characterisation of the NCAT proceedings as a prosecution was not accurate but do not agree that the Tribunal perceived them to have been criminal in nature. The discussion between the applicant and the Tribunal member, recorded at page 5 of the Tribunal transcript, does not suggest that the Tribunal believed the NCAT proceedings to have concerned a prosecution for an offence. Such a conclusion is also borne out by the way the Tribunal expressed itself in paras.11, 12 and 23 of its decision, quoted earlier. I find that the factual foundation of the allegation has not been made out.
In any event, the simple fact that, during the course of its hearing the Tribunal said that the HCCC proceedings were relevant to credibility was no more than a statement of the obvious, given that the NCAT proceedings were for misconduct. However, it is apparent from paras.10 and 11 of the Tribunal’s decision that the Tribunal’s statement was made in the context of a s.359AA notification. In such circumstances, no reasonable lay observer would apprehend the possibility that the Tribunal would not bring a mind open to persuasion to the determination of the review. Further in that connection and also in connection with the allegation of actual bias, the fact that a preliminary opinion has been expressed is insufficient basis for one reasonably to perceive the possibility or reasonably to conclude that the Tribunal’s mind was not open to persuasion. What was said in Johnson v Johnson (2000) 201 CLR 488 about court proceedings is equally applicable to the present case:
Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them. (references omitted) (at 493 [13] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ)
However, even if the applicant had proved that the Tribunal had believed him to have been prosecuted by the HCCC, in para.9 of its reasons the Tribunal expressly gave the information in question no weight and there is no proper reason, including the Tribunal’s comments at its hearing, to doubt it when it said that. I therefore find that when considering the applicant’s credit the Tribunal did not take into account the information in question into account and so the allegation of bias is not made out for that reason as well.
In his written submissions the applicant referred to Godley v Minister for Immigration & Multicultural and Indigenous Affairs [2004] FCA 774 and argued that:
Notwithstanding that this information under the 375A certificate is conceded as irrelevant, the harm that occurs is biased misstatements whose adverse impact are considered material / sufficient to reasonably conclude that the applicant was not afforded procedural fairness because of the misstatements, that is, it may be said that a tendentious proposition designed to secure a particular outcome was made, and then unfairly withdrawn so as to preclude the applicant from addressing the matter (given the real possibility of the adverse impact), when the tribunal Finds to place nil weight on the information subject to the certificate.
For the reasons already given I do not accept those contentions. Additionally, the facts of Godley’s case were quite different from those in this matter and the case is distinguishable on that basis.
Ground 2
The applicant alleged in the second ground of the amended application:
The Tribunal failed to have regard to information and evidence that was before the Tribunal. Consequently, the Tribunal failed to exercise its jurisdiction and thereby fell into Jurisdictional error.
Particulars
2.1 The Tribunal received verbal evidence from the applicant that information brought by the applicant was considered relevant to his case. In contravention of its statutory obligation under s359 the Tribunal failed to have regard to this information in that it failed to engage in “an active intellectual process” in which the oral information obtained from the applicant received genuine consideration in the Tribunal’s decision.
2.2On page 6 at [45] reference is made to 550 pages of SMS's and photos that may not have been received by the tribunal, that the applicant has produced at the Tribunal in support of his claims, that the Member does not request to see or reference, and hence errs as the member does not take into consideration the supporting evidence/material proffered by the applicant, and does not provide an explanation.
2.3On page 26 at [40], the applicant states he has these text messages and photos, that there are thousands of them that he has there with him before the tribunal, that the Member does not request to see or reference, and hence errs as the member does not take into consideration the supporting evidence/material proffered by the applicant for a second time and does not provide an explanation.
2.4On page 39 at [30] the member asks “Anything else you would like to raise” and the applicant response again at (35) “I have the messages here, is there any need of .....” and the member interrupts. On page 41 at [10], the applicant raises the issue of photos that he has. the Member again does not request to see or reference this evidence, and hence errs as the member does not take into consideration the supporting evidence/material proffered by the applicant for a third time, and does not again provide an explanation.
2.5Within the decision record, the Member on page 7 at [20] incorrectly concludes in support of affirming the decision that “The applicant provided very little photographic evidence of their social activities together” and therefore states “there is also limited evidence before the tribunal that the parties plan and undertake social activities together”.
The burden of the second ground of the amended application was that the applicant had brought evidentiary material to the Tribunal hearing, in the form of many pages of text messages and photographs, which the Tribunal failed to consider and that the Tribunal’s decision is affected by jurisdictional error as a consequence.
At the Tribunal hearing, the following statements were made which are relevant to this allegation:
Representative: You want (indistinct) there's 550 pages of SMS that they have together in the last few years. The file is available in this computer. And the number of photos, that I'm not sure if you received them all but he's got it. These aren't things they come up with me yesterday to talk about their relationship. But they've got heaps of more files in their computer that they decide they will share it, but what the allegation is, I cannot make comment because I was not in the (indistinct). (T6-7)
…
Applicant:What happened is we have it from mid-2014 because that's when Fiona got actually her new mobile. The rest is in the other mobile which we couldn’t retrieve. But we have it all from mid-2014, like, everyday messages and everything. Maybe Fiona's got a better memory. She might know. I'm just thinking …
Representative: It's over 1,000 SMS communications that they have (T25)
…
Tribunal:Anything else you'd like to raise? Any issues you'd like to raise?
Applicant:Just I had these text messages here. What I did actually was I put them - because all the messages, text messages, since I would say mid- 2014, like, everyday messages, photos, everything, the dates. There are thousands of them I have in here, and I'm sure you've got most of the photos as well.
Tribunal:Anything else you think is relevant that we haven't spoken about or raised or discussed? (T26)
…
Tribunal:Anything else that you'd like to raise?
Ms Hunt: No.
Applicant:Sorry, last question. I have the messages here. Is there any need of -…
Tribunal: Messages? Your own messages?
Applicant: Yes, just in case.
Tribunal:If you say there's evidence, if you like, it's up to you.
Representative: 570 megabyte file.
Applicant: It's (indistinct).
Representative: (Indistinct) or we can take a screenshot of it, but I just thought we can do a lot with those messages. But I thought - well, they're here in case you wanted to see the real document from there. (T39-40)
The applicant’s argument that the Tribunal should have taken this material into account was based on a contention that the Tribunal should have asked to be provided with the material because the Tribunal was in charge of the hearing. Although the Tribunal could have done this, cases such as Minister for Immigration & Citizenship v SZIAI (2009) 83 ALJR 1123, Minister for Immigration & Citizenship v SZGUR (2011) 241 CLR 594 are not authority for the proposition that it was required to make such a request. The circumstances in which the Tribunal ought to make an enquiry, which are discussed in those cases, and of which this proposition would be a variant, will not arise unless it would be manifestly unreasonable to not make the enquiry or the lack of such enquiry would amount to a failure to review. The authorities do not say that the Tribunal has a duty to seek from the applicant an elaboration which he is not inclined to make, which the evidence demonstrates was the situation in this case: Re Ruddock; Ex parte Applicant S154/2002 (2003) 201 ALR 437 per Gummow and Heydon JJ at 451 [58], Gleeson CJ agreeing at 438 [1]. In this case the Tribunal did not err by not seeking material which the applicant had in his possession but which neither he nor his representative sought to provide to the Tribunal.
Importantly, the Tribunal did not prevent the applicant, or his representative for that matter, from giving it the information which he now says the Tribunal should have sought from him.
For these reasons the second ground of the application has not been made out.
Ground 3
The applicant alleged in the third ground of the application:
The Tribunal's decision is affected by jurisdictional error in that the Tribunal failed to provide reasons as to why the Tribunal was not satisfied and hence placed no weight on the statutory declarations or the character references. Consequently, the Tribunal failed to complete its obligation to review the decision of the delegate, failed constructively to exercise its obligation to review and so fell into jurisdictional error.
Particulars
3.1On page 4 at [20] of the Decision record, the member states that the declarations provide little insight or any convincing as to why the declarants believe the relationship is genuine and continuing relationship, references nine character references as irrelevant as they only go to the applicants character, then states nil weight is provided by the Tribunal , without provided any reasoning or explanation why the member thought they provided little insight, especially given that statutory declarations were proffered and the issue of the applicant's credibility is made to be known as critical when the member states on page 5 at [10] within the Transcript “The tribunal see this [the 375A certificate information] as leaning towards credibility.
In his written submissions the applicant repeated the substance of that allegation and those particulars and then said:
In Minister for Immigration & Multicultural & Indigenous Affairs v WAFJ [2004] FCAFC 5, French, Lee & RD Nicholson JJ, per French J opined;
[68]The fact that the Tribunal takes an inquisitorial approach to the hearing element of its review by putting questions to the applicant for review does not involve any breach of procedural fairness provided that the applicant is given a real opportunity to put his or her own case. It is to be borne in mind that the oral hearing before the Tribunal is not a judicial hearing. It is one element of a process which includes the lodgment of written submissions before and after the hearing. It may also involve, as it did in this case, specific notice of particular matters adverse to an applicant and upon which the applicant is invited to comment.
In addresses he submitted that the Tribunal had not turned its mind to the documents in question, had not provided proper reasoning for giving no weight to the documents and did not test its concern that the statements might be false by asking why they would be false.
The documents in question were referred to earlier in these reasons at [10].
Turning first to the reasons given by the Tribunal for its assessment of the documents, what it relevantly said about them at para.20 of its reasons was:
The applicant has provided three form 888 statutory declarations from the sponsor's brother and sister in law and a friend of the applicants. These declarations give little insight into the relationship or any convincing [sic] as to why they believe the relationship is a genuine and continuing relationship. The applicant has provided nine additional character references as evidence which only reflect on the applicant's character and not his relationship with the sponsor. The Tribunal places no weight on the declarations or character references.
Contrary to the applicant’s submissions, the Tribunal explained why it accorded the documents no weight. In substance, the Tribunal found the documents thin, irrelevant and/or unconvincing when it came to deciding the relevant material issues before it. The applicant might disagree with the Tribunal’s approach but it was neither illogical nor unreasonable and no jurisdictional error is identifiable in connection with it.
Secondly, that discussion, and also the particulars of the allegation, shows that the Tribunal did turn its mind to the documents in question.
Thirdly, the Tribunal did not find that the statements made in the documents were untrue. It just found them unpersuasive and/or irrelevant.
Ground 4
The applicant alleged in the fourth ground of the application:
The Tribunal made inconsistent and incoherent finds leading to a failure to exercise its jurisdiction and thereby giving rise to a jurisdictional error.
Particulars
4.1Within the Decision record dated 5 September 2017, The Tribunal incorrectly states at [24] that the applicant told the tribunal that he had not made the sponsor the beneficiary of his will or superannuation. On page 24 at [20], of the Transcript, the member asks “There is no details of beneficiaries of any wills or anything?” to which the applicant replies “Me? No” the member [25] then asks “Superannuation”? and the applicant begins to describe that due to a passage of time, that he needs to see an accountant about whether he should make contributions “because last year I did not put anything to superannuation”.
4.2It is submitted that the Applicant understands the question as to the existence of a will and truthfully states that he has no will in place, is never asked directly if his sponsor is a beneficiary of his superannuation, and so answers by reference to the status of his superannuation in terms of contributions made by him. It is therefore incoherent to conclude that the applicant told the tribunal that he had not made the sponsor the beneficiary of his will or superannuation
At para.24 of its decision record the Tribunal stated:
The applicant told the Tribunal that he has not made the sponsor the beneficiary of his will or superannuation. There is limited evidence before the Tribunal to indicate the parties view their relationship as a long term one.
The relevant portion of the Tribunal hearing transcript records the following exchanges:
Tribunal:There's no details of beneficiaries of any wills or anything?
Applicant: Me? No.
Tribunal: Superannuation?
Applicant:Superannuation, to be honest with you, the last year - it's been like quite a while since I had to actually talk to them because the last time was in the hospital that they were putting in my superannuation. Last year – I should talk to an accountant to see what I should do because last year I did not put anything to superannuation, so I’ve been out of touch for the last three years now. (T24)
It was submitted on behalf of the applicant that he had understood the Tribunal’s question to relate to the existence of a will and that he responded to the effect that he did not have one. It was also submitted that the Tribunal had not, in terms, asked the applicant if Ms Hunt was a beneficiary of his superannuation and so he also answered by reference to the status of his superannuation. The applicant argued that he had not, in fact, told the Tribunal that he had not made the sponsor the beneficiary of his will or superannuation.
For his part, the Minister submitted that although the applicant had not said it in so many words, the effect of his evidence nevertheless was that Ms Hunt was not nominated as a beneficiary of his will or superannuation and that, importantly, the exchange occurred in the context of the Tribunal’s attempts to ascertain from the applicant whether there were relevant connections between him and Ms Hunt which such nominations might evidence. The Minister argued that, in that context, the Tribunal’s characterisation of the applicant’s answers was a fair one because the effect of the relevant evidence was that the applicant had not made Ms Hunt the beneficiary of his will or of his superannuation. The Minister also argued that it was not untrue that there had been no such nomination or that, as the Tribunal stated, there was limited evidence before the Tribunal to indicate the parties viewed their relationship as a long term one.
The exchanges in question did occur as part of a set of questions posed by the Tribunal which were plainly directed to testing the nature of the applicant’s relationship with Ms Hunt and, specifically, to test whether it was genuinely spousal in nature. It is true that the applicant did not say, in terms, that he had not made Ms Hunt a beneficiary of his will or of his superannuation but, given the nature of the questions which preceded the exchanges in question, it would not be difficult to understand the relevant questions as being related to Ms Hunt and the applicant’s relationship with her. However, that is not the only reasonably available interpretation of the exchanges given that the immediately preceding question and answer were:
Tribunal:You don’t have an Australia driver’s licence?
Applicant:No, unfortunately, no. I - because I was told - when I was waiting for my permanent residency, I've been - so I had the translation of the - - -
Given the tangential nature of that question about whether the applicant had a driver’s licence and then the similar phrasing or tenor of the questions “There's no details of beneficiaries of any wills or anything?” and “Superannuation?”, it would not be surprising if the Tribunal and the applicant perceived the exchanges differently. I conclude that the applicant did not say one way or the other whether Ms Hunt was a beneficiary of his will, because he was not asked a direct question on the subject, and the fact that the Tribunal perceived his response differently, as appears to have been the case, does not change that fact. On the other hand, the applicant’s evidence concerning his lack of attention to his superannuation, dating back to 2014, can reasonably be interpreted as conveying that in that period nothing had been done to make Ms Hunt a beneficiary of that fund.
I therefore conclude that the Tribunal was mistaken when it stated that the applicant had given evidence that Ms Hunt was not a beneficiary of his will but that it was not mistaken when it stated that the applicant had given evidence that Ms Hunt was not a beneficiary of his superannuation.
However, whatever doubt may attach to that exchange, it should be observed that Ms Hunt was quite clear as to whether she had made the applicant a beneficiary of her will or of her superannuation. Page 35 of the Tribunal hearing transcript records:
Tribunal:Have you made each other the beneficiaries of any wills or superannuation?
Ms Hunt: .......... : No, I haven't - I actually haven't even made a will in all honesty.
But in any event, whatever the applicant is to be taken as having relevantly said, he did not say that he had made Ms Hunt a beneficiary of his will or of his superannuation. That is to say, he had not given evidence on that subject which supported his claim that they were in a de facto relationship. That fact is the most significant one in this discussion because the Tribunal’s conclusion was not that the applicant had given evidence which was inconsistent with the existence of such a relationship but that:
There is limited evidence before the Tribunal to indicate the parties view their relationship as a long term one.
Consequently, even if the Tribunal was wrong to conclude that the applicant had said that he had not made Ms Hunt the beneficiary of his will or of his superannuation, that was a matter of no moment for its relevant conclusion and so of no legal significance: Minister for Immigration & Border Protection v Singh [2016] FCA 575 at [57]; VWFP vMinister for Immigration & Multicultural and Indigenous Affairs [2006] FCA 231 at [77]; SZWCO v Minister for Immigration & Border Protection [2016] FCA 51 at [64].
However, even if the finding in question had been relevant to the ultimate conclusion on the review, an error in fact finding will not ground judicial review unless it relates to a jurisdictional fact or is a manifestation of some error of law which constitutes jurisdictional error and thereby vitiates the purported decision: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 1414 FCR 1 at 16 [53]. As Allsop J said in SZHFC v Minister for Immigration & Multicultural and Indigenous Affairs [2006] FCA 1359 at [41]:
Jurisdictional error is not serious factual error; it is failure to attend to the statutorily mandated task.
In this case it has not been demonstrated that the Tribunal failed to consider any of the applicant’s claims in a proper, genuine and realistic way, involving an active intellectual process: Minister for Immigration & Citizenship v SZRKT (2013) 212 FCR 99 at 131 [114]; Minister for Immigration & Citizenship v SZJSS (2010) 243 CLR 164; Minister for Immigration & Citizenship v Khadgi (2010) 190 FCR 248. That is to say, it has not been demonstrated that the Tribunal failed to attend to its statutorily mandated task.
Conclusion
Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Judge Cameron
Date: 26 April 2018
0
17
3