Boonkerd v Minister for Immigration - [2019] FCCA 1527

FEDERAL CIRCUIT COURT OF AUSTRALIA

BOONKERD v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 1527

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – relationship found not to be genuine – “dob in letter” – whether the motivation for entering into the relationship was an irrelevant consideration – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.5CB, 359A, 359AA, 376

Migration Regulations 1994 (Cth)

Cases cited:

Malhi v Minister for Immigration & Anor [2017] FCCA 119
Minister for Immigration v Angkawijaya [2016] FCAFC 5

Vuong v Minister for Home Affairs & Anor [2019] FCCA 827

Applicant:

AREERAT BOONKERD

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 3425 of 2017

Judgment of:

Judge Driver

Hearing date:

5 June 2019

Delivered at:

Sydney

Delivered on:

3 July 2019

REPRESENTATION

Solicitors for the Applicant:

Ms E Anang of Lawyer-Up Pty Ltd

Solicitors for the Respondents:

Ms S Lloyd of HWL Ebsworth

ORDERS

The application as amended by leave granted on 5 June 2019 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3425 of 2017

AREERAT BOONKERD

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

The applicant (Ms Boonkerd) seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 11 October 2017. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant Ms Boonkerd a temporary partner visa.
Background facts relating to this matter are set out in the submissions of the parties.
Ms Boonkerd is a female citizen of Thailand who first arrived in Australia on 24 May 2013. On 5 December 2014, she applied for a Partner (Temporary) (Class UK) visa (partner visa).[1]
[1] Court Book (CB) 1
On 7 June 2016, the delegate refused Ms Boonkerd’s application for a partner visa as the delegate was not satisfied that Ms Boonkerd was in a de facto relationship with the sponsor.[2] This was on the basis that the delegate was not satisfied that Ms Boonkerd and her sponsor:
a)pooled their financial resources in any way, had any significant joint assets or liabilities, had made any significant joint purchases, or that they shared any day-to-day financial responsibilities;[3]
b)had established a joint household or that they shared the responsibilities of a household;[4]
c)present to their families as being in a committed partner relationship, or are regarded by others as such;[5] and
d)see the relationship as a long-term one, that they draw emotional support and companionship from each other, or that they have a commitment to a shared life together.[6]
[2] CB 173
[3] CB 179
[4] CB 180
[5] CB 180
[6] CB 181
On 10 June 2016, Ms Boonkerd sought review of the delegate's decision.[7]
[7] CB 183
On 17 June 2016, the Minister issued a certificate under s.376 of the Migration Act 1958 (Cth) (Migration Act), in relation to the document at folio 102…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] FCCA 1527
Decision Date: 3 July 2019

CaseChat Overview and Summary

This matter concerned an appeal to the Federal Circuit Court of Australia against a decision of the Administrative Appeals Tribunal (AAT) affirming the refusal of a protection visa. The applicant, Mr Boonkerd, had sought the visa on the basis of his alleged genuine relationship with an Australian citizen. The AAT had found that the relationship was not genuine, a conclusion that Mr Boonkerd challenged.

The central legal issue before the Court was whether the AAT had committed jurisdictional error in its assessment of the applicant's protection visa application. Specifically, the Court was required to determine whether the AAT's consideration of a "dob in letter" and the motivation behind the applicant entering into the relationship constituted an irrelevant consideration, thereby vitiating the Tribunal's decision.

Judge Driver found that the AAT had not erred in law. The Tribunal was entitled to consider all relevant evidence, including the "dob in letter," as part of its overall assessment of the genuineness of the relationship. The motivation for entering into the relationship was also a relevant factor in determining its authenticity. The Court held that the AAT's reasoning was sound and that no jurisdictional error had occurred. The appeal was therefore dismissed.

Orders