Boonkerd v Minister for Immigration
[2019] FCCA 1527
•3 July 2019
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 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 of the departmental file as it contained an “allegation of contrived relationship”[8] (Certificate).
[8] a copy of the s.376 certificate is reproduced at CB 182 and 289
On 19 January 2017, Ms Boonkerd was invited to attend a hearing.[9] She appeared before the Tribunal on 14 March 2017,[10] along with her representative and the sponsor.
[9] CB 217
[10] CB 275
On 9 June 2017, the Tribunal sent a letter to Ms Boonkerd by way of email to her representative, inviting Ms Boonkerd to comment on the Certificate and attaching the Certificate.[11]
[11] CB 287-289
On 15 June 2017, Ms Boonkerd’s representative sent an email to the Tribunal stating that Ms Boonkerd wanted to know the details of the allegation in the Certificate.[12]
[12] CB 290
On 22 June 2017, the Tribunal sent a letter to Ms Boonkerd by way of email to her representative inviting Ms Boonkerd to comment on information.[13] The invitation outlined the information that was provided in the allegation that was sent to the Minister in August 2014. Relevantly, one of the allegations was that after Ms Boonkerd is granted permanent residency, she intends to reunite with her husband who lives in Thailand (allegation).
[13] CB 293
In response, Ms Boonkerd, the sponsor and four witnesses provided statutory declarations addressing these claims as well as additional material.[14]
[14] CB 296-312
On 6 July 2017, the Tribunal sent a letter by way of email to Ms Boonkerd’s representative, inviting her to attend a second hearing.[15] Ms Boonkerd appeared before the Tribunal on 31 August 2017 to give evidence and present arguments, along with her representative and the sponsor.[16]
[15] CB 318
[16] CB 353
Tribunal decision
On 11 October 2017, the Tribunal affirmed the delegate's decision.[17] The dispositive issue for the Tribunal was whether Ms Boonkerd and her sponsor were in a “de facto relationship” within the meaning of s.5CB of the Migration Act. When considering whether or not a person is in a de facto relationship with another person, the Tribunal is required to consider all the circumstances of the relationship, including the matters specified in regulation 1.09A of the Migration Regulations1994 (Cth) (Regulations).[18]
[17] CB 358
[18] CB 361 at [7]
The Tribunal stated at [46] that it was concerned about the uncertainty that remained about the nature of the ongoing relationship Ms Boonkerd had with her ex-husband, that this concern had not been allayed by any evidence provided by Ms Boonkerd and that she had given misleading evidence about her ex-husband at the second hearing.[19]
[19] CB 368
This was because the Tribunal found at [47] that in oral evidence under oath, Ms Boonkerd knowingly withheld information about her ex-husband, specifically that he works for her, lives above her shop and she provides him with some financial help.[20] The Tribunal noted that before it became aware of this through evidence given later at the hearing by the sponsor, questions were put to Ms Boonkerd specifically about who lives above the shop and works for her and she did not disclose that her ex-husband lives and works there.[21]
[20] CB 368
[21] at [47]
As a result the Tribunal was not satisfied, given the circumstances and Ms Boonkerd’s lack of credibility in regard to the nature of the relationship that she had with her ex-husband, that the relationship she claimed to be in with the sponsor was a de facto relationship where they had a mutual commitment to a shared relationship to the exclusion of all others.[22]
[22] CB 368 at [49]
The Tribunal further stated at [52] that:[23]
The applicant gave no reasonable response that leads the Tribunal to consider that the allegation about her planning for her ex-husband to come to Australia had no merit and the information is relied on because it is backed up by actual evidence. That is, her ex-husband is living at premises she rents and working for her and she is helping him financially.
[23] CB 368
Ultimately, the Tribunal was not satisfied that Ms Boonkerd and her sponsor were in a genuine de facto relationship. This was because the Tribunal was not satisfied in relation to the financial aspects of the relationship,[24] the nature of the household,[25] the social aspects of the relationship[26] and the nature of the parties' commitment to each other.[27]
[24] CB 369-371 at [56]-[69]
[25] CB 371-372 at [70]-[76]
[26] CB 372-374 at [77]-[84]
[27] CB 374 at [85]-[87]
Overall, the Tribunal was not satisfied that Ms Boonkerd and the sponsor “have a mutual commitment to a shared life to the exclusion of others, and they are in a genuine and continuing relationship and that they live together or not separately and apart on a permanent basis”.[28] The Tribunal's conclusion was informed by significant inconsistencies in Ms Boonkerd’s and her sponsor's evidence as well as its adverse assessment of Ms Boonkerd’s credibility.
[28] CB 374 at [89]
The current proceedings
These proceedings began with a show cause application lodged on 7 November 2017. There were two grounds in that application which were abandoned in a proposed amended application annexed to Ms Boonkerd’s submissions filed on 22 May 2019. Ms Boonkerd sought leave to rely upon the proposed amended application, which was opposed by the Minister. I granted leave, noting that the Minister was not prejudiced and had dealt with the proposed ground in the amended application in the Minister’s submissions. The Minister sought an order for costs thrown away by reason of the amendment if leave were granted. I declined to make that order but left open the possibility of such an application being revisited at the end of the proceeding.
The sole ground in the application as amended is:
The Tribunal's decision is infected by jurisdictional error because it considered and relied on information that was irrelevant to its assessment of whether the Applicant met the requirements of s5CB (2) of the Migration Act 1958.
Particulars
a. In assessing whether the Applicant met the requirements of s5CB (2) of the Migration Act 1958, the Tribunal considered and relied on information that was the subject of a s376 certificate.
b.The information that the Tribunal relied on and took into consideration was an allegation received by the Department of Home Affairs in writing in August 2014 to the effect that the Applicant intended to reunite with her ex-husband after she acquired Australian permanent residency (Paragraph 23 and 52 of the Tribunal's decision record).
c.That allegation was not relevant to the consideration of whether the parties, at the time of the Tribunal's decision met the requirements of s5CB (2) and in particular s5CB (2) (a) of the Migration Act (1958).
The only evidence I have before me is the court book lodged on 16 February 2018.
Consideration
Applicable legislation
At the time of the application for visa on 5 December 2014 and the Tribunal’s decision on 11 October 2017, s.5CB(2) of the Migration Act provided as follows:
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 section 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 (see subsection (4)).
Clause 820.211(2)(a) of the Regulations as it stood at the time of the visa application is reproduced at CB 191.
At the time of the Tribunal’s decision, the terms of clause 820.221 of the Regulations were as follows:
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).
(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.
(3) An applicant meets the requirements of this subclause if:
(a) the applicant would continue to meet the requirements of subclause 820.211(2), (5) or (6) except that the relationship between the applicant and the sponsoring partner has ceased; and
(b) either or both of the following circumstances applies:
(i) either or both of the following:
(A) the applicant;
(B) a dependent child of the sponsoring partner or of the applicant or of both of them;
has suffered family violence committed by the sponsoring partner;
(ii) the applicant:
(A) has custody or joint custody of, or access to; or
(B) has a residence order or contact order made under the Family Law Act 1975 relating to;
at least 1 child in respect of whom the sponsoring partner:
(C) has been granted joint custody or access by a court; or
(D) has a residence order or contact order made under the Family Law Act 1975; or
(E) has an obligation under a child maintenance order made under the Family Law Act 1975, or any other formal maintenance obligation.
Note: For special provisions relating to family violence, see Division 1.5.
(4) If paragraph 820.211(2)(c), (5)(f) or (6)(c) requires the applicant to be sponsored:
(a) the sponsorship has been approved by the Minister and is still in force; and
(b) the sponsor has consented to the disclosure by the Department, to each applicant included in the sponsorship, of any conviction of the sponsor for a relevant offence (within the meaning of subregulation 1.20KC (2)).
Note 1 : Regulations 1.20J, 1.20KA, 1.20KB and 1.20KC limit the Minister's discretion to approve sponsorships.
Note 2: The sponsor may be asked to consent to the disclosure mentioned in paragraph (b) on the approved form required to be completed by the sponsor in relation to the visa application.
(5) For the purposes of subclause (4), the conviction of the sponsor for a relevant offence is to be disregarded if:
(a) the conviction has been quashed or otherwise nullified; or
(b) both:
(i) the sponsor has been pardoned in relation to the conviction; and
(ii) the effect of that pardon is that the sponsor is taken never to have been convicted of the offence.
Relevant facts and Ms Boonkerd’s contentions
The proceedings before the Tribunal involved two hearings in somewhat unusual circumstances.
Ms Boonkerd and the sponsor appeared before the Tribunal on 14 March 2017 and 31 August 2017 to give evidence and present arguments in relation to the application for review.[29]
[29] CB 361 at [4]
At the end of the first hearing on 14 March 2017, in accordance with s.359AA of the Migration Act, the Tribunal advised Ms Boonkerd that there was an inconsistency in the evidence between her and the sponsor in relation to their activities the night before the Tribunal hearing. Ms Boonkerd was given an opportunity to respond to the inconsistency at the hearing or to ask for more time to respond to the inconsistency. Ms Boonkerd asked the Tribunal and was granted an opportunity to respond to the inconsistency in writing after the hearing.[30]
[30] CB 362 at [14]-[15]
After the hearing on 14 March 2017, the Tribunal realised that matters in the Certificate dated 17 June 2016 relating to allegations made to the Minister’s Department in August 2014 about the nature of Ms Boonkerd’s and the sponsor’s de facto relationship had not been put to Ms Boonkerd at the hearing.[31] .
[31] CB 362 at [17]
On 9 June 2017, in accordance with s.359A of the Migration Act, the Tribunal wrote to Ms Boonkerd.[32] The Tribunal attached a copy of the Certificate to their letter and invited Ms Boonkerd to comment on the Certificate.
[32] CB 288
On 15 June 2017, Ms Boonkerd’s representative wrote to the Tribunal and requested that the Tribunal disclose the information that was the subject of the Certificate to Ms Boonkerd for comment.[33]
[33] CB 290
On 22 June 2017, the Tribunal wrote to Ms Boonkerd and disclosed the particulars of the information that was the subject of the Certificate.[34]
[34] CB 293-295
In its letter of 22 June 2017, the Tribunal informed Ms Boonkerd that it had not made up its mind about the allegations however it considered that the particulars of the information would, subject to Ms Boonkerd’s comments or response, be the reason or part of the reason, for affirming the decision under review. The Tribunal also invited Ms Boonkerd to comment on or respond to the information.
In response to the Tribunal’s letter of 22 June 2017, Ms Boonkerd and the sponsor provided statutory declarations dated 4 July 2017[35] vehemently denying most of the particulars of the information except for the particular relating to Ms Boonkerd’s previous employment.
[35] CB 296, 311-312
On 14 July 2017, the Tribunal invited Ms Boonkerd to attend the second hearing on 31 August 2017. [36] Ms Boonkerd and the sponsor appeared before the Tribunal to give evidence and present arguments in relation to the application for review.
[36] CB 325-327
During the course of the hearing, the sponsor disclosed to the Tribunal that Ms Boonkerd’s ex-husband was in Australia and living in accommodation above the Thai restaurant in Mascot that Ms Boonkerd owned and managed. The sponsor also advised the Tribunal that Ms Boonkerd’s ex-husband worked at the restaurant.[37]
[37] CB 363 at [21]
The Tribunal asserts that during the course of the second hearing, it asked Ms Boonkerd very specific questions regarding the employees at her restaurant and the occupants living in the accommodation above the restaurant and that in her oral evidence (prior to the disclosure by the sponsor), Ms Boonkerd failed to disclose that her ex-husband was in Australia, working for her and living in accommodation above a restaurant that she owned and managed.[38]
[38] CB 363 at [20], [22], 364 at [29] and CB 368 at [49]
The Tribunal noted that, with regard to the inconsistency in Ms Boonkerd’s and the sponsor’s evidence in relation to Ms Boonkerd’s ex-husband’s location in Australia and his living arrangements, it preferred and relied on the evidence of the sponsor.[39]
[39] CB 368 at [49]
The Tribunal found that Ms Boonkerd gave no reasonable response regarding her ex-husband’s residence in accommodation above the restaurant, his employment in the restaurant and Ms Boonkerd’s provision of financial support to him.[40]
[40] CB 368 at [52]
The Tribunal held that the absence of a reasonable response coupled with Ms Boonkerd’s ex-husband’s residence in Australia led the Tribunal to rely on the allegation regarding Ms Boonkerd’s intention to reunite with her ex-husband after she was granted permanent residency.[41]
[41] CB 368 at [52]
Ms Boonkerd contends that the allegation regarding her intention to reunite with her ex-husband after she is granted permanent residency concerns her reasons for entering into a de facto relationship with her sponsor.
Ms Boonkerd contends further that the case of Malhi v Minister for Immigration & Anor[42]is authority for the proposition that Ms Boonkerd’s reasons for entering into the relationship are not relevant to a consideration of whether the parties, at the time of the Tribunal’s decision, met the requirements of s.5CB(2) of the Migration Act.[43]
[42] [2017] FCCA 119
[43] Malhi at [36]
The Tribunal’s consideration and reliance on the allegation during the course of its assessment with regard to whether the couple’s de facto relationship met the requirements of s.5CB(2) and in particular sub-paragraph (a) forms the basis for the sole ground of review mounted by Ms Boonkerd in the amended application for judicial review.
A jurisdictional error?
Although in her submissions, Ms Boonkerd asserts that Malhi is authority for the proposition that the applicant’s reasons for entering into the relationship is not relevant to a consideration whether the parties, at the time of the Tribunal’s decision, met the requirements of s.5CB(2) of the Migration Act, her representative at the trial of this matter on 5 June 2019 disavowed that submission. In Malhi at [36] Judge Jones stated:
There is no authority as to what is contemplated by the requirement that the relationship be “genuine and continuing”. The assessment as to whether the relationship is genuine and continuing must focus on the relationship as it is, at the time of the Tribunal decision. The reasons for the parties entering the relationship are not to be taken as an indication that the relationship is not genuine. Parties may enter into a relationship for motives which are not necessarily genuine. It may be that the relationship is commenced for the very purpose of a person obtaining a visa. It may be that the relationship was entered into for reasons which were ill-conceived or precipitous. However, this is not relevant in considering whether the parties, at the time of the Tribunal decision, have a mutual commitment to a shared life: see Kayikci v Minister for Immigration and Citizenship [2009] FCA 92 at [24] (“Kayikci”); Singh v Minister for Immigration and Border Protection [2016] FCCA 114 at [53]. Nor, in my opinion, can the conduct or motive at the commencement of the relationship be determinative of whether the parties’ relationship at the time of the Tribunal decision is genuine and continuing.
To the extent that her Honour was intending in that paragraph to state that a visa applicant’s motivation for entering into a relationship is irrelevant to the consideration of the genuineness of that relationship, I respectfully disagree. I agree with the observations of Judge Kelly in that regard in Vuong v Minister for Home Affairs & Anor[44] at [71].
[44] [2019] FCCA 827
The Tribunal is entitled to have regard to an applicant’s motivation for entering into a relationship, although the Tribunal may fall into error if it treats that motivation as the determinative factor.[45] Further, the visa criteria in clause 820.211(2)(a) and 820.221 require that at the time the visa application was made, and at the time of the decision, the applicant is the spouse or de facto partner of an Australian citizen or permanent resident or eligible New Zealand citizen. Thus, the genuineness of the relationship must be determined both at the time of application and the time of decision.
[45] see Minister for Immigration v Angkawijaya [2016] FCAFC 5
In the present case, I do not accept that the Tribunal fell into error in dealing with the information provided to the Tribunal and put to Ms Boonkerd at the second Tribunal hearing. The Tribunal did not treat that information as determinative of the visa application. It was, rather, used as a vehicle for further questioning of Ms Boonkerd and the sponsor, which led to other problems emerging upon which the Tribunal based its decision.
The Tribunal did not err in its application of s.5CB of the Migration Act or regulation 1.09A. The Tribunal was entitled to consider all of the circumstances and to make adverse credibility findings in relation to Ms Boonkerd’s changing and inconsistent evidence. The Tribunal did not fail to consider the circumstances of Ms Boonkerd’s relationship with the sponsor at the time of the decision, including in assessing whether they had a mutual commitment to a shared life to the exclusion of all others.
Ms Boonkerd’s submissions at [33] seek to rely on specific paragraphs to illustrate where the Tribunal relied on the allegation. However, I accept the Minister’s submission that these paragraphs do not establish that the Tribunal impermissibly took into account the allegation in making its decision or otherwise engaged in any jurisdictional error:
a)at [22], the Tribunal noted that before the sponsor gave his evidence at the second hearing, the Tribunal asked specific questions of Ms Boonkerd as to whom she employs in her restaurant and who lives above it.[46] The Tribunal commented that Ms Boonkerd concealed from the Tribunal that her ex-husband works and lives at the restaurant. The Tribunal at [23] then stated that given the nature of the allegation, it placed significant negative weight on her misleading answers about her ex-husband.[47] The Tribunal's reliance on the allegation in these paragraphs did not go to whether Ms Boonkerd and sponsor have a mutual commitment to each other, but rather to assessing the credibility of Ms Boonkerd’s claims and the reasons that she provided in response to her misleading answers about her ex-husband at the second hearing;
b)the Tribunal at [27] provided no indication that it gave weight to the allegation in making its decision, but merely recorded Ms Boonkerd’s response to the allegation and that the Tribunal had expressed concerns about her credibility in relation to this issue;[48]
c)at [49] the Tribunal referred to its finding that Ms Boonkerd lied about her ex-husband not working at or living above her shop.[49] This was not a matter that existed at the start of the relationship but was a matter that was occurring at the time of the second Tribunal hearing. It was this later circumstance and the adverse credibility finding upon which the Tribunal relied at [49] to find that it was not satisfied that the relationship she claimed to be in with the sponsor was a de facto relationship where they had a mutual commitment to a shared relationship to the exclusion of all others; and
d)the gist of [52] of the Tribunal’s decision is that the Tribunal was not satisfied that the allegation that Ms Boonkerd was seeking to reunite with her ex-husband and live with him in Australia had no merit and was not true. This was in light of her responses, the fact that the ex-husband was living at premises rented by her, that he was working for her and that she was helping him financially. This was not a backward looking finding in relation to the reasons that Ms Boonkerd and the sponsor might have had for entering into a relationship. Rather, it was an assessment of Ms Boonkerd’s circumstances and motivations at the time of the Tribunal decision, which the Tribunal considered to be relevant to whether she was in a genuine de facto relationship with the sponsor.
[46] CB 363 at [23]
[47] CB 363
[48] CB 364
[49] CB 368
The Tribunal was not satisfied that Ms Boonkerd and the sponsor had a "commitment to a shared life to the exclusion of all others" or that their relationship was "genuine and continuing". These are integers in the definition of "de facto relationship"[50] that need to be satisfied for a person to be granted a partner visa. Whether a person satisfies those definitional requirements is informed by consideration of the circumstances prescribed by regulation 1.09A.
[50] section 5CB of the Migration Act
The Tribunal correctly referred to the financial aspects of the relationship, the nature of the household, the social aspects of the relationship and the nature of the persons’ commitment to each other.
The Tribunal cumulatively evaluated the evidence in finding that it was not satisfied that Ms Boonkerd’s relationship with the sponsor was genuine and continuing, that they had a mutual commitment to a shared life to the exclusion of all others, and that they lived together or not separately and apart on a permanent basis.[51] The Tribunal did not err in its approach in this regard.
[51] CB 374 at [89]
Conclusion
Ms Boonkerd is unable to demonstrate that the decision of the Tribunal in this case is affected by any jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed.
I will hear the parties as to costs.
I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 3 July 2019
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