Bijender v Minister for Home Affairs

[2019] FCCA 3314

FEDERAL CIRCUIT COURT OF AUSTRALIA

BIJENDER v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 3314

Catchwords:
MIGRATION – Migration Act 1958 (Cth) – Partner visa application – application seeking judicial review of decision of Administrative Appeals Tribunal affirming decision not to grant applicant a Partner (Temporary) (Class UK) (Subclass 820) visa and Partner (Residence) (Class BS) (Subclass 801) visa to the applicant – applicant also required to satisfy Criterion 3001 of Sch.3 to the Migration Regulations 1994 (Cth) – Administrative Appeals Tribunal not satisfied that applicant and sponsor were in a spousal relationship and so did not need to consider waiver of Criterion 3001 – Grounds of application fail to make out jurisdictional error – no jurisdictional error otherwise established – application for judicial review dismissed.

Legislation:

Federal Circuit Court of Australia Act 1999 (Cth), s.44

Migration Act 1958 (Cth), ss.5, 5F, 37, 65, 375A

Migration Regulations 1994 (Cth)

Cases cited:

Australian Securities Commission v Zarro (No.2) (1992) 34 FCR 427

O’Toole v Scott [1965] AC 939

Applicant: BIJENDER BIJENDER

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1646 of 2018

Judgment of: Judge Dowdy

Hearing date: 6 November 2019

Delivered at: Sydney

Delivered on: 6 November 2019

REPRESENTATION

The Applicant appeared in person with Ms C. Dunn appearing as his McKenzie Friend by leave.

Counsel for the First Respondent: Mr G. Johnson of Counsel

Solicitors for the First Respondent: Sparke Helmore

THE ORDERS OF THE COURT ARE AS FOLLOWS:

1. The Application filed in this Court on 13 June 2018 is dismissed.

2. The Applicant is to pay the First Respondent’s costs of the proceeding in the sum of $5,000.

3. The name of the First Respondent be amended from ‘Minister for Home Affairs’ to read ‘Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs’.

4. Pursuant to Rule 36.03(b) of the Federal Court Rules 2011 (Cth) the Applicant have up to and including 16 December 2019 to file any Notice of Appeal from orders 1 and 2 above in the Federal Court of Australia.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1646 of 2018

BIJENDER BIJENDER

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

EX TEMPORE

(Revised from Transcript)

Introduction

1. The Applicant is a male citizen of India aged 47 years, having been born on 10 May 1972.

2. By Application filed in this Court on 13 June 2018 he seeks impliedly to quash and have re-determined in accordance with law the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 17 May 2018 affirming the decision of the Delegate (Delegate) of the First Respondent, the Minister for Home Affairs (Minister), dated 19 August 2014 refusing to grant to the Applicant a Partner (Temporary) (Class UK) (Subclass 820) visa (temporary Partner visa) and a Partner (Residence) (Class BS) (Subclass 801) visa (permanent Partner visa and collectively Partner visa) under s.65 of the Migration Act 1958 (Cth) (the Act).

Background

1. The Applicant arrived in Australia on a Visitor (Class TR) (Subclass 676) visa (Visitor visa) which ceased on 14 October 2009, and which I find on the evidence was the last substantive visa held by him. In December 2009 the Applicant’s application for a Protection (Class XA) (Subclass 866) visa was refused.

2. On 15 March 2013 the Applicant made an application for a Partner visa based on his being in a spousal relationship with an Australian citizen, Ms Danette Karen Shoebridge, also known by the surname Wood (the sponsor), whom he had married on 20 July 2011. The sponsor had been born on 16 January 1973, and at the time of the Partner visa application it was claimed that the spousal relationship between the Applicant and the sponsor had resulted in the birth of a daughter on 14 September 2012. In his Partner visa application the Applicant stated that he held a Bachelor of Arts degree and a Master of Arts degree from a University in India.

3. I note that the grant of a Partner visa comprises a two-stage process, because the effect of cl.801.221(1) of the Migration Regulations 1994 (Cth) (Regulations) is to prescribe that at time of decision for the permanent Partner visa, the relevant applicant is already the holder of a temporary Partner visa.

Statutory Provisions for the Grant of a Partner Visa

1. As at the date of application the Applicant had to satisfy cl.820.211 of Sch.2 to the Regulations. Relevantly cl.820.211(1) and (2) provided as follows:

   820.211

   (1)     The applicant:

   (a)     is not the holder of a Subclass 771 (Transit) visa; and

   (b)  meets the requirements of subclause (2), (5), (6), (7), (8) or (9).

   (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; and

   (ii) is not prohibited by subclause (2B) from being a sponsoring partner; and

   (c)     the applicant is sponsored:

   (i) if the applicant’s spouse or de facto partner has turned 18—by the spouse or de facto partner; or

   (ii) if the applicant’s spouse has not turned 18—by a parent or guardian of the spouse who:

   (A)     has turned 18; and

   (B)     is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and

   (d) in the case of an applicant who is not the holder of a substantive visa—either:

   (i)      the applicant:

   (A)     entered Australia as the holder of a Subclass 995 (Diplomatic) visa or as a special purpose visa holder who at the time of entry met the requirements of subclause (2A); and

   (B)     satisfies Schedule 3 criterion 3002; or

   (ii) the applicant satisfies Schedule 3 criteria 3001, 3003 and 3004, unless the Minister is satisfied that there are compelling reasons for not applying those criteria.

   (emphasis added)

2. Further, as at the date of application the Applicant also had to satisfy the definition of “spouse” contained in s.5F of the Act, which relevantly provided as follows:

   5FSpouse

   (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.

   (3) The regulations may make provision in relation to the determination of whether one or more of the conditions in paragraphs (2)(a), (b), (c) and (d) exist. The regulations may make different provision in relation to the determination for different purposes whether one or more of those conditions exist.

3. For the purposes of s.5F(3) of the Act, reg.1.15A of the Regulations made “provision in relation to the determination of whether one or more of the conditions in paragraphs (2)(a), (b), (c) and (d) exist.” That regulation provided at the relevant time as follows:

   1.15A Spouse

   (1) For subsection 5F(3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5F(2)(1), (b), (c) and (d) of the Act exist.

   (2) If the Minister is considering an application for:

   (a) a Partner (Migrant) (Class BC) visa; or

   (b) a Partner (Provisional) (Class UF) visa; or

   (c) a Partner (Residence) (Class BS) visa; or

   (d) a Partner (Temporary) (Class UK) visa;

   the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).

   (3) The matters for subregulation (2) are:

   (a) the financial aspects of the relationship, including:

   (i) any joint ownership of real estate or other major assets; and

   (ii) any joint liabilities; and

   (iii) the extent of any pooling of financial resources, especially in relation to major financial commitments; and

   (iv) whether one person in the relationship owes any legal obligation in respect of the other; and

   (v) the basis of any sharing of day to day household expenses; and

   (b) the nature of the household, including:

   (i) any joint responsibility for the care and support of children; and

   (ii) the living arrangements of the persons; and

   (iii) any sharing of the responsibility for housework; and

   (c) the social aspects of the relationship, including:

   (i) whether the persons represent themselves to other people as being married to each other; and

   (ii) the opinion of the persons’ friends and acquaintances about the nature of the relationship; and

   (iii) any basis on which the persons plan and undertake joint social activities; and

   (d) the nature of the persons’ commitment to each other, including:

   (i) the duration of the relationship; and

   (ii)the length of time during which the persons have lived together; and

   (iii) the degree of companionship and emotional support that the persons draw from each other; and

   (iv) whether the persons see the relationship as a long term one.

   (4) If the Minister is considering an application for a visa of a class other than a class mentioned in subregulation (2), the Minister may consider any of the circumstances mentioned in subregulation (3).

4. I also note at the time of decision, as being relevant in light of the sponsor’s death on 11 July 2015, that cl.820.221(2) of the Regulations provided as follows:

   820.221

   …

   (2)  An applicant meets the requirements of this subclause if the applicant:

   (a)would continue to meet the requirements of subclause 820.211(2), (5) or (6) except that the sponsoring partner has died; and

   (b)  satisfies the Minister that the applicant would have continued to be the spouse or de facto partner of the sponsoring partner if the sponsoring partner had not died; and

   (c)  has developed close business, cultural or personal ties in Australia.

   (emphasis added)

5. As noted at [3] above, the Applicant’s last substantive visa ceased on 14 October 2009. This meant that at the time of application for the temporary Partner visa he had to satisfy Criterion 3001(1), which relevantly required him to have made his application within 28 days of 14 October 2009, being namely by 11 November 2009. However, he had made his Partner visa application on 15 March 2013, some 1220 days, or three years, four months and four days too late. Accordingly, it was necessary for him to establish to the satisfaction of the Minister that there were “compelling reasons” for not applying Criterion 3001(1): see above cl.820.211(2)(d)(ii) of the Regulations.

6. I note that the criteria comprising Sch.3 to the Regulations impose restrictions on unlawful non-citizens who apply onshore for residence, relevantly here on spousal grounds, rather than leaving Australia and applying from overseas.

Decision of Delegate

1. In short, the Delegate in her Decision Record found:

   a)that the Applicant and sponsor had made no attempt to pool their financial resources from the time of their marriage and was not satisfied that they were committed to a genuine and ongoing relationship;

   b)that she was not satisfied that the Applicant and the sponsor had established a joint household or that they shared the responsibilities of a household; and

   c)overall, that there was not convincing evidence that the Applicant and the sponsor presented themselves as a married couple, either to their families or to the wider community.

2. Further, the Delegate, whilst being satisfied that the Applicant and the sponsor were actually married and had a child together, found that there was no evidence that their relationship was a long-term one, that they drew emotional support and companionship from each other or that they had a commitment to a shared life together.

3. Accordingly, the Delegate refused to grant the temporary Partner visa to the Applicant, which meant that the Applicant did not meet the criteria for the permanent Partner visa, which was thus refused. As the Delegate, in the first instance, was not satisfied that there was a spousal relationship, she found that she did not need to consider the waiver of Criterion 3001.

Tribunal Decision

1. The Applicant lodged an application for merits review with the Tribunal on 29 August 2014. On 11 July 2015, the sponsor regrettably died.  Following a hearing conducted by the Tribunal on 23 September 2015, it affirmed the decision of the Delegate on 9 November 2015. However, that decision of the Tribunal was set aside by this Court on 26 June 2017. The Tribunal then, differently constituted, invited the Applicant to a hearing before it on 18 April 2018, which he attended and at which evidence was taken from a number of witnesses, including the Applicant, his sister-in-law, his niece and his nephew. The Applicant also provided additional documentation to the Tribunal at the hearing.

2. At [7] of its Decision Record the Tribunal defined the main issues in the case as being whether the Applicant was the spouse of the sponsor and whether the Applicant satisfied Criterion 3001. At [8] – [11] the Tribunal set out the background of the review before it.

3. At [16] – [18] of its Decision Record the Tribunal recorded the existence of a certificate issued under s.375A of the Act (s.375A certificate), which certificate it considered to be valid. The Tribunal noted with respect to the s.375A certificate that it had advised the Applicant during the Tribunal hearing of its existence and put to him the substance of the document the subject of the certificate which was on the face of it information from an informant.

4. The Tribunal invited the Applicant to comment on the validity of the s.375A certificate, but recorded at [17] of its Decision Record that he did not provide any comment. At [18] the Tribunal recorded as follows:

   [18] The Tribunal, under the relevant provision, put to the applicant the core of the information which is the subject of the certificate. The information is as follows:

   ·On 28 January 2015, the Department received information that the applicant’s marriage to the sponsor was not genuine. The applicant paid the sponsor to enter into a fake marriage for the purposes of obtaining a visa. Although the applicant and the sponsor lived at the same address, the sponsor lived in a bedroom alone. While the applicant claimed to be in a genuine relationship with the sponsor, the sponsor had a boyfriend named Tony who visited her every day. The applicant is married and has a wife and child/children in India.

5. In short, by reference to the evidence of the circumstances of the asserted spousal relationship, the Tribunal found that the Applicant and the sponsor:

   a)did not have any joint ownership of real estate or other assets;

   b)had no joint liabilities and that they had not pooled their financial resources; and

   c)had no major commitments together: see [23] of its Decision Record.

6. The Tribunal also noted at [29] of its Decision Record that there was little detail before it as to how the Applicant and the sponsor shared household responsibilities. The Tribunal was not satisfied, on the basis of the Applicant’s lack of knowledge about the sponsor’s health (see [33] of its Decision Record) and inconsistent evidence about where the Applicant lived, that the Applicant and the sponsor had formed a household, nor was it satisfied that they had had joint care of children, referring to the evidence that had transpired since the Delegate’s decision that the sponsor’s daughter was not in fact the biological child of the Applicant and had since been put into foster care.

7. In the result, having a regard to its findings in connection with the alleged spousal relationship, the Tribunal found that it was unnecessary to consider waiver of Criterion 3001.

8. Accordingly, in the circumstances the Tribunal was not satisfied that the Applicant and the sponsor had shared a spousal relationship or that they had a mutual commitment to a shared spousal relationship (see [36] of its Decision Record) and it affirmed the decision of the Delegate not to grant the Partner visa to the Applicant.

Grounds of Attack on Tribunal Decision in This Court

1. The Grounds are set out in handwriting in the Application filed in this Court and are not easy to read, but I set them out now below as agreed between the parties at the hearing in this Court:

   1. Subsection 474(2) of the Migration Act 1958 shown in the attached paper Partnership visa + visa’s.

   2. Subsection 474(2) of Migration Act 1958 Substantial.

   3. Subsection 474(2) of Migration Act 1958: regarding many errors in the facts i.e. Times and dates also explanations for other address. Also relevant issues regarding Mr Bijender and his wife.

   4. Subsection 474(2) of the Migration Act 1958 Regarding siblings and care.

   5. Subsection 474(2) of Immigration Act 1958. Different Address. And that they only resided at Clarence St for 2 – 3 months.

   6. Subsection 474(2) of Immigration Act 1958. The witness statements were unsigned and no identifications was shown.

2. I note that at the commencement of the hearing Ms Cheryl Dunn (Ms Dunn), who is the sister-in-law of the Applicant and who had given evidence at the Tribunal hearing, indicated that she wished to represent and appear for the Applicant at the Court hearing. I indicated to her that I was not prepared to allow her to speak and make submissions on behalf of the Applicant but that I was prepared to have her take upon herself the role of McKenzie Friend. In the result I adjourned the hearing on two occasions to allow the Applicant and Ms Dunn to confer together before the Applicant made submissions and, at times, she sat at the Bar Table to assist the Applicant. 

3. I note that in my view, notwithstanding the decisions of some of the Judges of this Court coming to a different view, s.44 of the Federal Circuit Court of Australia Act 1999 (Cth) (FCCA Act) precludes the Court from allowing another layperson to represent a party at a Court hearing.  That section seems to me to be in peremptory terms and to accord with the type of preclusion postulated by Lord Pearson for the Judicial Committee of the Privy Council in O’Toole v Scott [1965] AC 939, in which it was held that magistrates in New South Wales had a discretion under the Justices Act 1902 (NSW) to permit persons to act as advocate for other persons. At 954 Lord Pearson described the form of a preclusion which would be effective to remove the discretion in the following terms:

   If the intention had been to abolish the discretion, the Act should have said that no person other than the party himself or his counsel or attorney shall be permitted to appear as advocate for him, or some other express words to that effect should have been used.

   Section 44 of the FCCA Act provides as follows:

   44Representation   

   A party to a proceeding before the Federal Circuit Court of Australia is not entitled to be represented by another person unless:

   (a)   under the Judiciary Act 1903 , the other person is entitled to practise as a barrister or solicitor, or both, in a federal court; or   

   (b)under the regulations, the other person is taken to be an authorised representative; or

   (c)   another law of the Commonwealth authorises the other person to represent the party.

1. In my view, s.44 of the FCCA Act falls within the scope and sense of the sort of preclusion effective to remove the discretion suggested by Lord Pearson. Further and in any event I was of the view that, even if the FCCA Act did permit a person not qualified as a lawyer or otherwise authorised under s.44 to represent them, it would not have been appropriate to do so for reasons set out in the many cases which consider whether or not a non-lawyer should be able to represent a party in a court of law. In the circumstances of Ms Dunn acting as McKenzie Friend, I do not consider that the Applicant has suffered from any procedural disadvantage.

2. I further note that the Grounds, which are in a very abbreviated form, were amplified by Written Submissions handed up by the Applicant when he was in reply to Mr Johnson of Counsel who appeared for the Minister, and which I have had marked for identification “MFI – 2”.

Consideration

Grounds 1 and 3

1. The Applicant appears to argue in these Grounds that the Tribunal was wrong when it found that he had not held any substantive visa since 14 October 2009. As I have already found, the Tribunal was correct in coming to that conclusion. The fact of the matter is that the letter from Parish Patience Immigration Lawyers dated 8 March 2013, which forwarded the Partner visa application to the Department of the Minister and which was signed by the well-known immigration lawyer Mr David Bitel, gave compelling reasons for waiving the Sch.3 criteria within which Criterion 3001 appears and asked for them to be waived, and this request would have been incoherent but for the acceptance by Mr Bitel on behalf of the Applicant that he had not lodged his Partner visa application in time. Further, the document forwarded by Mr Bitel to the Department of the Minister and reproduced at Court Book pages 73 and 74 indicates that the Visitor visa under which the Applicant arrived in Australia had a final arrival date of 3 September 2009.

2. It may be that the Applicant has thought that the Bridging visas that he had been issued with were substantive visas, but by force of s.37 of the Act a “bridging visa” is a temporary visa and a “substantive visa” by force of s.5(1) is relevantly a visa other than a bridging visa.

3. Further, at [37] of the previous decision of the Tribunal dated 9 November 2015, which was set aside in this Court and at which hearing Mr Bitel had appeared, it was recorded that:

   [37] It is not in dispute that the applicant in the present case did not have a substantive visa at the time of application. As the applicant did not enter Australia as the holder of a Subclass 995 visa or special purpose visa, the issue in the present case is whether the applicant satisfies the Schedule 3 criteria unless there are compelling reasons for not applying those criteria. These criteria are set out in the attachment of this decision.

4. The Applicant has not provided any admissible evidence that he held any substantive visa after his Visitor visa had ceased to be operative. Further and finally in this connection, in the result it did not matter because the Tribunal never got to the point of considering whether or not there should be a waiver of Criterion 3001, as it took the view that the Applicant and the sponsor had never been in a spousal relationship at all. 

5. Accordingly, Grounds 1 and 3 fail to establish that the decision of the Tribunal is affected by jurisdictional error and are not made out.

Ground 2

1. It is very difficult to make out that Ground 2 seeks anything other than to invoke a merits review of the decision of the Tribunal which is not available in this Court. Certainly, it is the case that simply because the Applicant and the sponsor had been married in accordance with Australian law did not make them to be, for the purposes of the Partner visa application, in a spousal relationship.

2. Otherwise, it is appropriate to simply say that the Decision Record of the Tribunal appears to be a full, detailed, comprehensive and meaningful consideration and analysis of the Partner visa application before it and Mr Johnson of Counsel, who appears for the Minister, has informed me that the Minister has been unable to discern any other grounds which the Applicant could avail himself of in seeking to point to jurisdictional error and I am unable for myself to discern any further or other such grounds. For reasons which do not appear to me to lack an intelligible justification and which do not appear to be legally unreasonable or irrational, the Tribunal was not satisfied that the Applicant and the sponsor were ever in a genuine and continuing relationship.

3. Accordingly, Ground 2 is not made out.

Ground 4

1. This Ground refers to “siblings and care” and is amplified at pages 34 and 35 of Exhibit 1 which is in substance a submission of the Applicant. However, pages 34 and 35 simply make factual assertions and do not assert or establish jurisdictional error. 

2. Accordingly, Ground 4 is not made out. 

Ground 5

1. This Ground takes issue with the Tribunal’s consideration of the many different addresses at which the Applicant claimed to have lived over the period of time he had been in Australia and that issue is found at [24] – [28] of its Decision Record. In particular, at [26] – [27] the Tribunal stated:

   [26] …The Tribunal is perplexed to have before it addresses attributed to the applicant, during a time he claimed to be in a spousal relationship with the sponsor and to be living with the sponsor. It is also puzzled why the applicant could not offer an explanation for this information. The Tribunal is not satisfied that the applicant is credible.

   [27] The applicant provided inconsistent evidence about his residential addresses. On 12 March 2013, the applicant stated that his residential address was Halstead Street, South Hurstville and that he had lived at this address from 1 December 2012. In contrast to the applicant’s evidence, a witness at the Tribunal hearing, provided information that in 2011-2012, the parties lived together at the Clarence Street, address and from 2012, moved to George Street, Mortdale, where they lived for their entire relationship. The applicant provided a residential tenancy agreement dated 20 November 2013, for the George Street, address. The lease agreement is for six months beginning on 25 November 2013 and ending on 25 May 2014. The agreement is not signed by the applicant. An electricity supply agreement for the George Street, Mortdale address is in the applicant’s name and records an expiry date of 28 August 2014. However, at the time the parties claimed to live together at the George Street, address, the sponsor provided a Centrelink document recording her residential address as Penshurst Road, Narwee. The applicant told the Tribunal that he had not lived at the Penshurst Road, Narwee address of at another address recorded on information he provided being the Jergey Avenue, Mortdale address. The Tribunal thinks that it is reasonable that the applicant should be able to provide an explanation about the documents he provided with the Penshurst Road, Narwee address and the Jergey Avenue, Mortdale address and that he should be able to provide consistent information about where the parties lived together.

2. It is not for the Court to re-determine as a fact where it was the applicant was living at particular points in time. This was a matter for the Tribunal. The applicant was given an opportunity to explain the evidence before the Tribunal, but he failed to take up the opportunity. The discussion, consideration, analysis and findings by the Tribunal in relation to the addresses are not subject to a merits review in this Court and the addresses were matters which were legally open to the Tribunal to consider and to make findings about, which do not appear to me again to be legally unreasonable or lacking in an intelligible justification.

3. Accordingly, Ground 5 is not made out.

Ground 6

1. Ground 6 appears to attack the Tribunal’s adverse attitude towards unsigned or unidentified handwritten statements. In my view, it is sufficient to set out [35] of its Decision Record, which states as follows:

   [35] At the Tribunal hearing, the applicant provided unsigned and unidentified handwritten statements. The statements discuss the Schedule 3 criteria and compelling reasons not to apply the Schedule 3 criteria and the reasons for the Court remittal. One author claimed that the visa refusal is unfair. It is stated that the applicant was shocked and surprised to find that he was not the child’s father. Other information is that the parties were ‘on going’ especially on Wednesday, when the applicant was at home. Claims are made that Elizabeth Longwood (the sponsor’s mother) had dementia for 20 years and only had a relationship with her daughter for 13 months before the sponsor died and would not have been a reliable witness. There are claims about the parties sharing household expenses, about them being committed to running a household and sharing responsibilities. The author stated that he/she was the sponsor’s friend for 25 years and believed the parties’ relationship to be genuine. Another statement is claimed by the applicant to be written by Ms Kelly, no other identification of the author has been provided. The statement records the sponsor’s addiction to prescribed medication and the problems that caused for the parties. It goes onto record that the applicant was scared of the sponsor’s drug taking and that he didn’t know enough to understand how to fix matters. Regardless of these issues the author believes that the applicant loved the sponsor. Another statement is claimed by the applicant to be written by Tony, is signed; however further identification of the author has not been provided. The author stated that the sponsor use to work with him and he was only a friend. It is stated that the sponsor had a lot of problems with sleeping tablets and other medication and there are claims of a general practitioner over prescribing. The author stated that the parties’ relationship was genuine. Another statement provided to the Tribunal is without the identity of the author. The author claims to have known the applicant for six years and that the applicant has done his best to be a loving husband to the sponsor and provided her and her daughter with unconditional support. The Tribunal explained to the applicant that should he want the Tribunal to rely on these statements they should be provided as signed statutory declarations and be provided with the identification of the authors. It provided the applicant additional time to provide the statements. At the time of this decision, the applicant had not provided the signed and identified statements. The Tribunal places no weight on the statements provided at the Tribunal hearing or the other statement provided without identification because it cannot be satisfied about who wrote the statement or if they are providing truthful statement about the parties’ relationship. Regarding the claim of Elizabeth Longwood having had dementia and only having a relationship with her daughter for 13 months before the sponsor died and not having been a reliable witness. There is no medical information to demonstrate that Elizabeth would not have been of sound mind, at the time she provided evidence. However, in coming to its decision the Tribunal has considered all of the evidence.

   (emphasis added)

2. In my view, no jurisdictional error is established by the Tribunal’s reasoning, attitude or approach as set out at [35] of its Decision Record. It is obviously an important consideration for any administrative tribunal, as for any court of law, in terms of evaluating the weight of any evidence for such tribunal or court of law to know the provenance of any evidence before it so that it can make a meaningful assessment and evaluation of its weight and credibility. The Tribunal informed the Applicant during the hearing of its concerns regarding the nature of the statements he sought to rely upon and provided him with an opportunity to provide signed statutory declarations which identified the authors, but no further statements were tendered. The fact that the Tribunal decided to place no weight on the statements when they were without identification establishes no jurisdictional error.

3. Further, insofar as the statements went to the issue of the waiver of Criterion 3001, they were irrelevant to the Tribunal’s decision.

4. Accordingly, Ground 6 is not made out.

A Final Matter

1. As I have earlier indicated at [17] – [18] above, the Tribunal was in receipt of the s.375A certificate. The Minister has read and relied upon the affidavit of Ms Katherine Louise Evans affirmed on 29 October 2019 and has put before the Court, in redacted and unredacted form, the document which was the subject of the s.375A certificate. The simple fact of the matter is that the information in that document agrees with the description and statement given to the Applicant at the Tribunal hearing as recorded at [18] of the Decision Record of the Tribunal.

2. In my view, the Tribunal was correct in finding that the s.375A certificate was valid because it is clear law that information from an informant provided to police or governmental regulatory authorities and organisations, when given on a confidential basis, invokes public interest immunity: see generally the decision of Drummond J in Australian Securities Commission v Zarro (No.2) (1992) 34 FCR 427.

3. The information contained in the document the subject of the s.375A certificate was sufficiently disclosed to the Applicant and he responded that the information was false and that he did not have a wife and child in India. His response to that information is otherwise recorded at [20] of the Decision Record of the Tribunal and in my view nothing in relation to the s.375A certificate, or the way that the Tribunal dealt with it vis-a-vis the Applicant, has any tendency to establish that the decision of the Tribunal is affected by jurisdictional error.

Conclusion

1. Accordingly, the Applicant has failed to establish that the decision of the Tribunal is affected by jurisdictional error and the Application filed in this Court is to be dismissed.

I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Judge Dowdy

Associate: 

Date:  19 November 2019