Burton v Minister for Immigration
[2008] FMCA 576
•22 May 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BURTON v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 576 |
| MIGRATION – Review of Migration Review Tribunal decision – spouse visa – cancellation – fact finding a matter for Tribunal – the evidence the Tribunal chooses to gather is a matter for it – Tribunal not required to set itself up as contradictor of evidence it finds convincing – Tribunal is not required to refer to every piece of evidence before it or to every argument advanced – s.359A requires information be notified to an applicant – s.359A does not require particular documents to be applied. |
| Migration Act 1958, ss.101, 102, 103, 104, 105, 107, 108, 109, 359A, 368 Migration Regulations 1994, reg.2.41 |
| Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630 Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 Paul v Minister for Immigration & Multicultural Affairs (2001) 113 FCR 396 Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 |
| Applicant: | WARIJACHI DEVI BURTON |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 2062 of 2007 |
| Judgment of: | Cameron FM |
| Hearing date: | 22 January 2008 |
| Date of Last Submission: | 22 January 2008 |
| Delivered at: | Sydney |
| Delivered on: | 22 May 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr. S.J. Keim, S.C. |
| Solicitors for the Applicant: | Ramrakha Jenkins |
| Counsel for the Respondents: | Mr. G. Johnson |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2062 of 2007
| WARIJACHI DEVI BURTON |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant was granted a Spouse (Migrant) (Class BC) Subclass 100 (Spouse) visa on 11 January 2000 on the basis of her marriage to Stephen Burton (“sponsor”). On 30 June 2003, the Minister’s delegate cancelled the applicant’s visa pursuant to s.109(1) of the Migration Act 1958 (“Act”). The applicant then applied to the Migration Review Tribunal (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
The Tribunal decision the subject of these proceedings is the second such decision relating to the applicant. There was a previous Tribunal decision dated 3 March 2004 which was quashed by order of the Federal Court dated 11 November 2005 (Relevant Documents (“RD”) page 386).
For the reasons which follow, the application will be dismissed.
Relevant legislation
The applicant’s visa was cancelled under s.109 of the Act when the department’s delegate found that the applicant failed to comply with ss.101, 102, 104 or 105 of the Act.
Section 101 provided:
A non-citizen must fill in his or her application form in such a way that:
(a) all questions on it are answered; and
(b) no incorrect answers are given.
Section 102 provided:
A non-citizen must fill in his or her passenger card in such a way that:
(a) all questions on it are answered; and
(b) no incorrect answers are given.
Section 104 provided:
(1) If circumstances change so that an answer to a question on a non-citizen's application form or an answer under this section is incorrect in the new circumstances, he or she must, as soon as practicable, inform an officer on an approved form of the new circumstances and of the correct answer in them. ...
Section 105 provided:
(1) If a non-citizen becomes aware that:
(a) an answer given in his or her application form; or
(b) an answer given in his or her passenger card; or
(c) information given by him or her under section 104 about the form or card; or
(d) a response given by him or her under section 107;
was incorrect when it was given, he or she must, as soon as practicable, notify an officer, on an approved form, of the incorrectness and of the correct answer. …
Section 109 of the Act provided:
(1) The Minister, after:
(a) deciding under section 108 that there was non-compliance by the holder of a visa; and
(b) considering any response to the notice about the non-compliance given in a way required by paragraph 107(1)(b); and
(c) having regard to any prescribed circumstances;
may cancel the visa.
(2) If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.
Regulation 2.41 of the Migration Regulations 1994 (“Regulations”) provided:
For the purposes of paragraph 109(1)(c) of the Act, the following circumstances are prescribed:
(a) the correct information;
(b) the content of the genuine document (if any);
(c) the likely effect on a decision to grant a visa or immigration clear the visa holder of the correct information or the genuine document;
(d) the circumstances in which the non-compliance occurred;
(e) the present circumstances of the visa holder;
(f) the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act;
(g) any other instances of non-compliance by the visa holder known to the Minister;
(h) the time that has elapsed since the non-compliance;
(j) any breaches of the law since the non-compliance and the seriousness of those breaches;
(k) any contribution made by the holder to the community.
Background facts
The facts relating to the applicant’s claim for a Spouse (Migrant) (Class BC) Subclass 100 (Spouse) visa are set out in the Tribunal’s decision at RD 684 – 696.
The applicant alleged:
a)she is a widow with three adult sons from a previous marriage;
b)with a view to possible marriage, she was introduced to the sponsor by her sister, Saras Wati Burton (“Saras”), and her Australian husband, Lionel Burton (“Lionel”), who is the sponsor’s uncle;
c)the sponsor relied on Lionel’s personal recommendation that he marry the applicant. Lionel was concerned that he was growing older and had never married. Lionel told him that the applicant was a good woman who worked hard and who would make a good wife;
d)before they married, the applicant and the sponsor often spoke to each other on the phone. The sponsor lived with Lionel and Saras, and calls were made to the applicant in Fiji from the residential phone. The sponsor also made a number of private calls to the applicant using phone cards; and
e)the sponsor travelled to Fiji to meet the applicant in person on 22 June 1997. The sponsor was attracted to her and was happy to marry her. On that day, they went to a registry office to make arrangements to get married. The sponsor understood that he could have the marriage annulled within 14 days if things did not work out. They were married the next day (23 June 1997) at the registry office.
On 11 January 2000 the applicant was granted a Subclass 100 visa and she and her sons entered Australia on 6 February 2000.
The Department’s decision to cancel the visa
In April 2001, the Department received information that the marriage was not genuine and that the applicant and the sponsor did not in fact live together.
On 14 January 2003 the applicant was notified under s.107 of the Act that a delegate of the Minister was considering cancelling the visa. That section relevantly provided:
(1) If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:
(a) giving particulars of the possible non-compliance; and
(b) stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:
(i) if the holder disputes that there was non-compliance:
(A) shows that there was compliance; and
(B) in case the Minister decides under section 108 that, in spite of the statement under sub-subparagraph (A), there was non-compliance – shows cause why the visa should not be cancelled; or
(ii) if the holder accepts that there was non-compliance:
(A) give reasons for the non-compliance; and
(B) shows cause why the visa should not be cancelled; and
(c) stating that the Minister will consider cancelling the visa:
(i) if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response – when that notice is given; or
(ii) if the holder gives the Minister a written response within that period – when the response is given; or
(iii) otherwise – at the end of that period; …
Section 108 provided:
The Minister is to:
(a) consider any response given by a visa holder in the way required by paragraph 107(1)(b); and
(b) decide whether there was non-compliance by the visa holder in the way described in the notice.
The Tribunal was required to decide whether there was non-compliance by the applicant in the way described in the delegate’s s.107 notice. The relevant particulars of the non-compliance given in the notice were:
In the Application for Migration to Australia lodged with the Australian Embassy Suva on 7 July 1997, you signed a declaration on page 18 of the application form, which states in part:
· “I declare information supplied on or with this form, and any attachments, is complete, true and up-to-date in every detail.”
· “I did not marry or enter a de facto/common law relationship to become eligible for migration to Australia.”
· “I understand that if I have given incorrect information, my application may be refused, I may be refused entry to Australia, or I could be removed after I arrive in Australia.”
· “I am aware that I must inform the Australian mission of any changes to my circumstances where the change makes any answer or information on the form incorrect before I arrive in Australia and undertake to do so.”
As part of this application, you were asked to provide evidence that your relationship with Stephen Burton was genuine and continuing.
On the basis of evidence provided, the Australian Embassy Suva notified you in writing of the grant of the sub-class 100 visa for yourself, Vikash Nilesh and Sshalendra [sic] Taisho Kumar.
…
Information held by the Department also indicates that you were not in a genuine and continuing marital relationship with Stephen Burton when you were granted the sub-class 100 visa.
…
On the Incoming Passenger Card (IPC) completed for your arrival in Australian on 11 September 2002, you signed the DECLARATION, which states, “The information I have give [sic] is true, correct and complete. I understand failure to answer any questions may have serious consequences.”
The IPC asked, “Do you have any criminal convictions?” In response you ticked the answer “NO”.
…
Information received by the Department suggests that the answers given on your IPC regarding your character for the above arrival may have contained incorrect information.
The Department has received information that you have been convicted of a criminal offence in Australia.
…
Based on the information before me, I am of the opinion that you may have provided incorrect information on your application and other documents provided as part of your application, lodged with the Department on 7 July 1997. In particular, you may have failed to provide information to the Department about the true nature of your relationship with Stephen Burton. Hence this leads me to believe that you may not have complied with Sections 101, 104 and 105 of the Migration Act.
I am also of the opinion that you may have provided incorrect information on your Incoming Passenger Card on 11 September 2002. Hence this leads me to believe that you may not have complied with Section 102 of the Migration Act. (RD 190 – 191)
At a departmental interview on 6 May 2003 Lionel stated, amongst other things:
a)he arranged the wedding in order for the applicant to gain residence in Australia;
b)the parties never slept with each other;
c)the sponsor stayed only two weeks with the applicant;
d)the sponsor was given $3,000;
e)the applicant paid the sponsor’s fare to Fiji and then $3,000; and
f)the applicant completely changed when she came to Australia.
In a statement made on 6 May 2003, Lionel said:
a)he had arranged the marriage between the parties;
b)the sponsor was paid $3,000 by the applicant the day after the wedding;
c)the parties had never lived together as husband and wife; and
d)the applicant intended to pay the sponsor $5,000 if he attended the interview scheduled for 13 May 2003.
On 14 May 2003, the Minister’s department received a handwritten undated statement by the sponsor indicating that:
a)he wished to “withdraw” his application for the applicant;
b)he was paid money to marry her; and
c)the parties had not been together since October 1997.
The applicant was interviewed on 13 May 2003 at which time she made the following relevant claims:
a)the applicant and the sponsor still lived together. They lived in a three bedroom home with her three sons. They took turns sleeping on the lounge;
b)the applicant was unable to phone the sponsor because he had lost his mobile phone a month ago but he had phoned her the night before to say that he was unable to attend the interview because of work; and
c)the applicant did not pay the sponsor money to marry her.
On 30 June 2003 the Minister’s delegate cancelled the applicant’s visa relevantly on the basis that she had not complied with ss.101, 102, 104 and 105 in that the marriage between the applicant and the sponsor was not genuine but also because she had provided false information on an Incoming Passenger Card completed on 11 September 2002.
On 10 July 2003 the department received a handwritten undated statement by the sponsor indicating:
a)his uncle arranged the wedding in Fiji;
b)the parties had never had sex;
c)he had not lived with the applicant since she arrived in Australia, except for two weeks in February 2003 when he stayed to help her out and she slept on the lounge; and
d)he travels around Australia a lot and when in Sydney stays at two other locations.
The review before the currently constituted Tribunal
On 23 August 2006 the applicant provided submissions to the Tribunal which stated, amongst other things, that:
a)the sponsor had not sought a divorce and this raised doubts that the marriage was bogus;
b)all parties with knowledge of the relationship had given declarations that the marriage was in fact genuine;
c)the marriage had broken down and the sponsor had been vindictive as a result of the marriage breakdown;
d)Saras had made the claims about the marriage being bogus because of conflict within the family and she wanted to “get at” the applicant; and
e)the applicant and the sponsor resided together at Chester Hill until September 2000 when they moved to Sefton.
Nine statements from friends and family were provided to the Tribunal attesting to the genuineness of the relationship.
Tribunal hearing
At the Tribunal hearing the applicant made the following additional claims:
a)Lionel asked the applicant for money when he was drunk;
b)Lionel asked to sleep with the applicant one night and told her to leave the sponsor and have a relationship with him instead. Lionel told the sponsor not to attend the interview with the department because he “wanted her”. The applicant received a phone call from the sponsor on the morning of the interview when he said that he was unable to come to the interview due to work;
c)the sponsor’s work required him to travel and he would come home perhaps once every fortnight or every month;
d)the relationship between the applicant and the sponsor ended on 28 February 2003 as he left for work and did not return home after that date and did not come to the departmental interview although it was postponed twice;
e)the sponsor’s name was added to the lease in 2003 after the department’s first letter because he was overseas at the time the lease was first signed in September 2000;
f)the sponsor’s name was also added to an Optus phone bill from 28 January 2003 at his suggestion after he saw the department’s letter; and
g)a letter from the applicant’s son, Ritesh Kumar, indicated that Lionel went to his place of work in February 2004 and made threats.
The Tribunal’s decision and reasons
The Tribunal affirmed the delegate’s decision to cancel the applicant’s visa. The Tribunal’s decision was based on the following findings and reasons:
a)the Tribunal found that the applicant was not a credible witness and rejected her argument that the marriage was genuine and that there was a genuine and ongoing relationship after the wedding, at the time of the application or at the time of the visa grant, stating that it was not satisfied that the applicant and the sponsor had a mutual commitment to a shared life as husband and wife to the exclusion of all others at the relevant times;
b)the Tribunal found that the applicant had never had a genuine and continuing marital relationship with the sponsor when she lodged the application or subsequently or when she was granted the Subclass 100 visa and subsequently;
c)the Tribunal concluded that there was no courtship between the parties before they first met, noting that:
i)there was no compelling documentary evidence concerning the inception of the relationship;
ii)before the wedding the parties did not send each other cards or remittances;
iii)phone calls were made to the applicant from the house in which Saras, Lionel and the sponsor lived, and the applicant stated at the first Tribunal hearing that it was often Saras who called her. There was no evidence of phone calls made to the sponsor’s address by the applicant; and
iv)the parties give conflicting evidence about the phone communication that they had prior to their meeting;
d)in the sponsor’s and Lionel’s signed statements and in Lionel’s interview, it was indicated that:
i)Lionel had arranged the wedding in Fiji;
ii)the sponsor was paid $3,000 to marry the applicant;
iii)he was offered $5,000 to attend the Department’s interview but did not attend as Lionel told him it was too dangerous;
iv)the couple had not been together since October 1997;
v)the couple had never had sex;
vi)the couple did not live together in Australia except for a two week period in February 2003, during which time the applicant slept on a couch;
vii)when the sponsor was in Sydney he lived at two other addresses; and
viii)the sponsor had withdrawn his support for the applicant’s application;
e)the Tribunal found that the circumstances of the couple’s marriage suggested that the marriage was not genuine, noting that:
i)the couple was married the day after their first meeting, which suggested to the Tribunal that the parties gave scant regard to a commitment to a shared life;
ii)the applicant was a strict Hindu who did not smoke or drink whereas her sponsor both smoked and drank;
iii)the wedding was not attended by the applicant’s sons; and
iv)the parties were married in a low-key registry office wedding which showed little or no social recognition of the marriage;
f)the Tribunal found that there was little evidence of a mutual commitment to the relationship from June 1997 to October 1999, noting that:
i)after a second visit to Fiji in 1997 the sponsor did not return to Fiji for two years during which time the applicant was awaiting the outcome of her visa application;
ii)after the wedding there was no evidence of the financial aspects of the relationship, such as joint ownership of assets or liabilities, pooling of resources, shared household expenses or remittances;
iii)there was no compelling evidence of communication between the parties during this time;
iv)although relatives and friends attested to the genuineness of the relationship, there was no evidence that the couple actually socialised together (other than at the wedding) and the applicant had not been to Australia so those relatives and friends in Australia would not have been able to observe the parties together in a relationship;
g)overall, the Tribunal found that the parties’ knowledge of each other was shallow, noting that the applicant did not know the sponsor’s date of birth, details about his parents or much about his employment;
h)the Tribunal concluded that:
i)the circumstances of the inception of the relationship;
ii)the fact that the wedding was organised on the day of their first meeting;
iii)the cultural differences between the parties;
iv)the low key wedding which was not attended by the applicant’s sons;
v)the lack of compelling evidence of the relationship when the sponsor was in Fiji;
vi)the lack of compelling evidence of communication over the next two years;
vii)the lack of evidence of financial interdependency; and
viii)the shallow knowledge the parties had of each other
cast strong doubts on the genuineness of the relationship;
i)the Tribunal was not satisfied that after the applicant’s arrival in Australia there was an ongoing married relationship, noting that there was no compelling evidence that they lived together;
j)the Tribunal noted the following matters as reflecting adversely on the applicant’s credibility:
i)at the Tribunal hearing, but not during a prior interview with the department, she raised concerns about Lionel wanting to have a relationship with her;
ii)the applicant gave inconsistent evidence as to whether the sponsor’s phone call to her to advise that he would not be attending the departmental interview occurred the night before or on the morning of the interview;
iii)the applicant claimed that she was unable to contact the sponsor as he had lost his mobile phone and had called her from a public phone but at the hearing an inspection of her mobile phone revealed that she had received a call from the sponsor’s mobile phone the night before;
iv)she gave inconsistent evidence about where and when the sponsor was working;
v)she gave inconsistent evidence about when she last saw the sponsor;
vi)the applicant gave evidence that she made few attempts to contact her husband after he left home in 2003, notwithstanding the commencement of the visa cancellation action;
k)the Tribunal considered that the Sefton property lease and other documents from the real estate agency did not demonstrate that the couple lived together in Australia in a married relationship, noting that the lease did not contain the sponsor’s name until after the cancellation notice was issued by the department;
l)the Tribunal also found that phone bills which included the sponsor’s name did not demonstrate that the couple lived together in a married relationship, noting that the sponsor’s name was only added to the account after the cancellation process had commenced;
m)the Tribunal was not satisfied that the sponsor was part of the applicant’s household, noting that no other evidence of joint bills or household utilities in joint names or evidence or goods purchased jointly was provided to the Tribunal;
n)the Tribunal found that seven photos taken of the applicant and the sponsor in domestic circumstances in Australia were all taken on the same day after the cancellation process had commenced in order to provide evidence that the parties lived together and, as such, did not demonstrate that the applicant and the sponsor were in a genuine relationship;
o)the applicant’s claim that no documentary evidence of the relationship existed for the period of September 2000 – 2003 was because Lionel had told her there was nothing to worry about as she and the sponsor were husband and wife, raised doubts about the nature of her claimed relationship with the sponsor during these years;
p)the Tribunal gave no weight to earlier statements by the sponsor, Lionel and Saras attesting to the genuine nature of the marriage as it found that these statements were superseded by the sponsor’s statements and by comments and statements made by Lionel and Saras at an interview on 6 May 2003 and subsequently;
q)the Tribunal did not accept statements and oral evidence given by family and neighbours supporting the applicant’s claims, noting that:
i)these statements were brief and did not give great details about the claimed relationship;
ii)the Tribunal did not consider the applicant to be a credible witness; and
iii)the Tribunal preferred the evidence of the sponsor, Lionel and Saras over these statements;
r)the Tribunal rejected the statements and evidence of the applicant’s family and friends considering that they were not truthful and had been provided at the applicant’s request;
s)the Tribunal accepted the information provided by the sponsor, Lionel and Saras that:
i)the parties did not live together in a married relationship in Fiji at the time of the wedding and during the sponsor’s second visit; and
ii)the parties did not live together in a married relationship in Australia because the marriage was bogus and had been entered into solely to facilitate the applicant’s residence in Australia;
t)the Tribunal rejected the claim that Lionel, Saras and the sponsor were motivated to make false allegations to the Department because of family conflict or because the applicant stopped paying money to, and refused the sexual advances of, Lionel;
u)consequently, the Tribunal found that the applicant provided false answers and information in her application which constituted non-compliance by the applicant as described in s.101 of the Act;
v)the Tribunal was not satisfied that the applicant had breached ss.104 and 105 of the Act, and did not consider the asserted breach of s.102 in relation to the Incoming Passenger Card as it had already made a decision in relation to the incorrect information provided in the application;
w)the Tribunal found that the s.107 notice sent by the department was not defective;
x)having concluded that the applicant had not complied with the requirements of the Act, the Tribunal then decided that the visa should be cancelled pursuant to s.109. Although the Tribunal accepted that the cancellation of the applicant’s visa would have serious adverse migration consequences for her and for the family of one of her sons and that the applicant and her children had made contributions to the Australian community, the Tribunal found that:
i)the applicant’s non-compliance with her obligations under subdiv.C of div.3 of pt.2 of the Act was very significant (including the continuance of her deception throughout the determination process including by getting witnesses to provide false evidence);
ii)the applicant contrived to gain residence in Australia by entering a marriage which was neither genuine nor ongoing; and
iii)the applicant attempted to gain a migration advantage for herself and her children to which they were not entitled.
Proceedings in this Court
An amended application was filed on 17 December 2007. In her written outline of submissions the applicant abandoned those grounds of her amended application which were not specifically dealt with in those submissions. The grounds which were pressed were:
a)failure to consider relevant matters concerning the evidence of Lionel Burton, Saras Burton and Stephen Burton;
b)improperly placing an onus of proof on the applicant;
c)failure to consider relevant matters when exercising discretion whether to cancel the applicant’s visa (or in this situation, to affirm the delegate’s decision to cancel the visa); and
d)taking irrelevant considerations into account.
At the hearing the applicant filed an amendment to the grounds contained in the amended application. This contained additional particularisation of the allegation that relevant matters had not been considered by the Tribunal when exercising its discretion to affirm the delegate’s decision and also an allegation of apprehended bias against the Tribunal.
Notwithstanding that the amendment to the amended application repeats the grounds of that document with additions but not deletions, senior counsel for the applicant did not suggest at the hearing that he withdrew his abandonment of those grounds contained in the amended application which were not specifically dealt with in his written outline of submissions. Indeed his oral submissions reflected the written outline.
However, the applicant’s written submissions make reference to, but do not address, para.6(c) of the amended application. This paragraph is repeated in the amending document and alleges that the Tribunal failed to give the applicant copies of “adverse material on its files”. In the circumstances, and notwithstanding that no oral submissions were made in relation to this allegation, I will deal with it on the assumption that it is pressed.
Failure to consider relevant matters – repudiators’ evidence
The first ground raised by the applicant is expressed to be a failure by the Tribunal to consider relevant matters concerning the evidence of the individuals she describes as the “repudiators”, Lionel Burton, Saras Wati Burton and the sponsor. The applicant has submitted that the Tribunal
has either swept aside evidence supporting of the genuineness of the marriage relationship or [gone] to great pains to discredit it. On the other hand, where evidence was received attacking the genuineness of the marriage relationship, the Tribunal ignored any internal or external difficulties with that “evidence”.
The applicant’s argument is encapsulated in para.13 of her written outline of submissions and in reality is a challenge to the Tribunal’s assessment of the evidence before it:
The Tribunal has failed to give any consideration in weighing the competing credibility of, on the one hand, the applicant and a large number of community members attesting to the genuineness of the marriage relationship and, on the other, the repudiators, to the degree of internal inconsistency in the evidence of the repudiators in asserting that the marriage was not genuine.
The applicant has broken down this allegation into four elements in respect of which, she alleges, relevant matters were not considered. The matters which she says were not considered are:
a)inconsistencies in the repudiators’ evidence concerning:
i)the periods of the parties’ cohabitation;
ii)whether the parties had had sexual relations; and
iii)allegations that the applicant paid money to the sponsor;
b)the reliability and credibility of the repudiators’ original evidence as to the genuineness of the marriage;
c)the motives of the repudiators in changing their stories; and
d)the earlier evidence of “members of the public” to the first Tribunal in support of the existence of a marriage.
Inconsistencies in the repudiators’ evidence
Cohabitation
The first area of inconsistency highlighted by the applicant related to the periods during which it was alleged that the parties cohabited. She submitted that when the repudiators said that the applicant and sponsor had been “together” or had stayed “with” each other, this indicated co-habitation and conjugal relations. The applicant submitted that evidence given by Lionel Burton on this subject was inconsistent as was the evidence of the sponsor in that they said that the applicant and sponsor had been “together” and had stayed “with” each other but had never truly co-habited, and although the inconsistencies were raised with the Tribunal it failed to consider them.
To say that the Tribunal failed to consider the evidence of the repudiators concerning cohabitation is to mischaracterise the evidence in question. Properly understood, this evidence was not internally contradictory and did not need to be considered in the sense advocated by the applicant. A better characterisation of the passages in question would be that both Lionel Burton and the sponsor were saying that the marriage of the applicant and the sponsor had never been consummated and although they might have slept under the same roof on occasion this did not amount to them living together as husband and wife.
It is clear from the Tribunal’s decision record that the Tribunal preferred the evidence of the repudiators to that of the applicant. In doing so, no error is disclosed.
Sexual relations
The applicant submits that the Tribunal similarly failed to consider internal inconsistencies in the evidence of the repudiators on the question of whether the applicant and sponsor had ever had sex together. In particular, it was submitted that the Tribunal “failed to consider the implications of the internal inconsistency” between the sponsor’s two statements provided two months apart on 14 May 2008 and on 10 July 2003.
In his statement received on 14 May 2003 the sponsor said that the parties “had not been together since October 1997” (RD 710) and in his statement received on 10 July 2003 he said that the parties had never had sex and he had not lived with the applicant since she arrived in Australia except for two weeks in February 2003 during which period she slept on the lounge, he staying there to help her out. The applicant seeks to make much of the fact that the sponsor might in one statement be saying that the marriage had been consummated whereas in the other statement he is saying that it had not been. The Tribunal summarises these statements at RD 710, as part of its findings and reasons, and concludes from them that the parties had never had sex together.
In submitting that the Tribunal ought to have considered “the implications of the internal inconsistency”, what the applicant is really saying is that it should have pursued its fact finding into the area of why the statements differed and what the difference signified. In essence, the applicant complains that the Tribunal’s fact finding did not go as far as she would have wished, but the Tribunal needs only to find those facts which are necessary to the decision which it ultimately reaches.
The applicant submitted that one should not be confused between what a Tribunal is required to articulate in its reasons pursuant to s.368 and what it is required to consider in order to exercise its jurisdiction. It was submitted that these are different questions. This is true but recognising that distinction does not lead inevitably to a conclusion that an absence from the Tribunal’s decision of a discussion of “the implications of the internal inconsistency” indicates that an issue necessary to be considered has been overlooked: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630 at 641 [47-49]. In this case, the alleged inconsistencies in the sponsor’s statements raise questions as to his reliability and credibility as a witness which is a factual matter reserved to the Tribunal and it is apparent that the Tribunal reached a view on it. Although it may not have analysed the sponsor’s statements in the fashion the applicant would have liked, it nevertheless expressly accepted his evidence in a finding set out at RD 721.2.
Money payment to sponsor
The applicant has submitted that the “newly coined” evidence of the repudiators casting doubt on the genuineness of the applicant’s marriage indicated a line of inquiry which the Tribunal should have pursued because the evidence was not “compelling” as the Tribunal stated. The applicant submitted that when deciding whether the repudiators were reliable and credible witnesses, the Tribunal should have tested their evidence by calling them to give evidence in person, by inviting the sponsor to produce documentary evidence of the money payment and by summonsing the sponsor’s bank records and the applicant’s bank records.
However, the evidence which the Tribunal chooses to gather of its own accord is a matter for it. The relevant question on this point is actually, as the applicant notes at para.32 of her outline of submissions, whether the repudiators’ prior inconsistent statements were taken into account by the Tribunal when reaching its decision. It is clear that they were when it is recalled that the Tribunal says that those statements were fabricated to assist the applicant and that it accorded them no weight (RD 718). Additionally, later in its decision, at RD 721.2, the Tribunal makes a positive finding as to the reliability of the more recent evidence of the repudiators.
At RD 711 the Tribunal explained why it found the repudiators’ evidence so convincing. It was not then required to set itself up as some form of contradictor of that evidence.
It might also be noted that it was presumably within the power of the applicant to tender her own financial records to address the payment allegations. That is not to suggest that the applicant had an onus of proof. It merely recognizes that the applicant complains that the Tribunal did not do something which she herself could have done. In fact the applicant does submit that the Tribunal did, in effect, place on her an onus to “prove her accusers wrong”, but in reality what she is saying is that the Tribunal, having come into possession of evidence which it found convincing on a particular issue, required the applicant to disprove it. A better way of characterising the situation was that, having reviewed the evidence which included the applicant’s and the repudiators’ evidence, it preferred the latter, which it was entitled to do.
Credibility of repudiators’ evidence
The applicant submitted that the failure of the Tribunal to make any attempt to have the repudiators attend before the Tribunal was a conclusive indicator that the evidence previously given by them was not considered by the Tribunal. For the reasons set out in [43] above, this ground is not made out.
Motives of repudiators
The applicant submitted that the Tribunal failed to consider the motivation of the sponsor and Lionel and Saras Wati Burton to give evidence which contradicted their previous evidence concerning the genuineness of the marriage. Issues raised by the applicant in her submissions were allegations that Lionel Burton had sought drinking money from the applicant, that he made sexual advances to her which were rebuffed and that Lionel and Saras Wati Burton were unhappy with the applicant because she maintained a relationship with her sister towards whom Lionel and Saras Wati Burton felt antipathy.
Contrary to this assertion, the Tribunal did consider this issue. At RD 720 the Tribunal observes that the applicant’s claims concerning Lionel Burton’s motivation for seeking to end her marriage were only raised at a late stage, before the Tribunal, and it considered that this, together with other factors, raised strong concerns about the applicant’s credibility. In fact, the Tribunal concluded that she was not a credible witness and thus these allegations made by her concerning Lionel Burton’s motivation were rejected. Consequently, on the facts, it can be seen that the issue which the applicant says was not considered was, indeed considered, but it was considered in the context of the applicant’s credibility. As the question of Lionel Burton’s motivation to give the evidence he did was raised by the applicant in her evidence and that evidence was rejected, it was not necessary for the Tribunal to consider the issue any further. Again, the applicant is suggesting that the Tribunal should have made particular factual inquiries and to have considered particular matters of fact which steps were not mandated by the legislation.
Earlier evidence by “members of the public”
The applicant submitted that although the Tribunal rejected previously given evidence of “members of the public” as to the genuineness of the marriage relationship, it did not reject the truthfulness of those witnesses. She submitted that this suggested that the sponsor had repeatedly indicated to those witnesses that the marriage was genuine and normal. The applicant described the evidence of the “members of the public” as “accepted evidence before the [first] Tribunal” which stood “as cogent challenges to the credibility of Stephen Burton”. The applicant alleged that the Tribunal failed to take into account this consideration.
This submission suggests that the Tribunal overlooked the inconsistent position taken by the sponsor in initially confirming the genuineness of the marriage and then subsequently disclaiming it. However, as already noted, the Tribunal did turn its mind to this issue when concluding that the sponsor’s prior statements were fabricated to assist the applicant.
Generally
All the matters which it is said the Tribunal failed to consider are evidentiary ones. But it is not necessary for the Tribunal to refer to every piece of evidence before it or to every argument advanced. Nor is it correct to characterise an aspect of the evidence as a relevant consideration. As Mason J said in Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 39, the ground of a failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he is bound to take into account in making that decision.
In this case, what the Tribunal was required to take into account was whether the applicant had failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. These provisions required the Tribunal to consider whether the applicant had given correct answers in the various documents she had submitted to the department in support of her visa and her entry into Australia and whether any of those answers required correction. Matters relevant for consideration in such a context were narrow in scope and turned on the existence and genuineness of her marriage. The Tribunal considered these issues in considerable depth. As Allsop J said in Paul v Minister for Immigration & Multicultural Affairs (2001) 113 FCR 396 at 423 [78]:
Once it is accepted that the Tribunal dealt with the subject matter or element of the claim, it becomes apparent that the real complaint of the appellant must be that the Tribunal failed to expressly deal with the evidence referred to in the letter of 19 November 1999 and should have, somehow, preferred that material to the countervailing evidence (which it was accepted existed) which supported or tended towards the position adopted by the Tribunal in the emphasised paragraph referred to at [69] above. Thus expressed, it becomes plain that it cannot be a question of the failure to take into account a consideration made compulsorily relevant by the Act or regulations: see Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 and Yusuf.
This is not a case of the Tribunal ignoring relevant material in a way that affects the exercise of power such as to involve an error of law, as discussed in Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 351 [82]. Nothing identified by the applicant could be characterised as a matter which the sections the Tribunal had to apply required be considered.
The applicant’s challenge to the Tribunal’s fact finding cannot succeed on the basis advanced. Nor can it succeed on any other basis. The weight which is to be accorded to evidence and which evidence is accepted are matters solely for the Tribunal. If the findings of fact were open to the Tribunal, which I find they were, then this ground cannot support a finding of jurisdictional error.
Onus of proof
Although the applicant does not express this to be a separate ground of review, the first respondent has identified it as a distinct issue raised by the applicant in her submissions on the first asserted ground of review.
It is put in the applicant’s written outline of submissions that the Tribunal’s
failure to consider the inconsistent nature of the evidence indicates that the Tribunal, despite lip service, otherwise, treated the hearing as if the onus of proving the genuineness of the relationship was on the applicant.
and
the Tribunal has failed to consider the implications of the internal inconsistency between the two statements of Stephen Burton provided 2 months apart. Such failure has the same implications in terms of jurisdictional error including misconstruing where the onus of proof lies.
and
Effectively, the Tribunal placed the onus on the applicant to prove her accusers wrong, an impossible task in the face of the tribunal’s implacable attitude …
The Tribunal recognised that in the circumstances, the onus of establishing the facts was on the Tribunal. There is no basis to conclude that the Tribunal, having correctly articulated this obligation (at RD 682), proceeded to decide the review on a different basis. In the result the Tribunal preferred one body of evidence over another. That does not amount to the imposition of an onus of proof on the applicant and no jurisdictional error has been demonstrated in connection with this issue.
Failure to consider relevant matters in the exercise of discretion
The applicant submits that matters which the Tribunal should have considered, but did not, were the effect on her grandchildren were she to have to return to Fiji and the political and social conditions in Fiji. The applicant said in her outline of submissions:
Effectively, the Tribunal failed to give consideration to the relevant and important matter of hardship likely to be experienced by the applicant because of her age; her lack of family support; and the deteriorating political, economic and employment situation in Fiji.
However, as the Minister correctly submits, the applicant’s submissions focus upon her statutory declaration of 5 June 2007 (RD 600 – 607) provided under cover of her agent’s fax of 6 June 2007 (RD 596 – 599). The fact that the Tribunal expressly makes reference at RD 708 to the applicant’s “detailed responses on 6 and 7 June 2007” demonstrates that consideration was given to these issues when considering the exercise of its discretion whether to cancel the applicant’s visa.
As to the actual exercise of the discretion, I adopt para.21 of the first respondent’s submissions:
Ultimately, the Tribunal found the applicant’s non-compliance “very significant” (RD 725.4). Although it accepted the cancellation of the applicant’s visa would have “serious adverse migration consequences for herself (and her children whose visas were also cancelled and indirectly for Vikash’s family) and that the applicant (and children) have made and continue to make some contribution to the Australian community”, the Tribunal found that the applicant had attempted to gain for herself and her children a “migration advantage” by entering a “marriage which was neither genuine nor ongoing” and the Tribunal concluded that the reasons for not cancelling the applicant’s visa “do not outweigh” the reasons for cancelling the applicant’s visa (RD 725.4 – 725.5). The Tribunal was entitled to decide that the visa should be cancelled pursuant to s.109 of the Act, as it there did (RD 725.5). (emphasis in original)
Consequently, I do not find that the exercise of the Tribunal’s discretion miscarried.
Irrelevant consideration
This ground is expressed in the applicant’s outline of submissions in the following terms:
By imposing its personal and cultural prejudices upon the parties to a marriage whose matrimonial experiences and human needs and cultural background were peculiar to those parties, the Tribunal has placed weight on matters which had no relevance to the question it had to decide, namely, the genuineness of the marriage at the time that the applicant was granted her sub-class 100 visa.
In this regard, the applicant referred to the following matters:
(a) The parties indicated that they were matched by Lionel and Saraswati Burton, however, it is not argued the marriage was a traditional marriage in that sense;
(b) The parties indicated that they first met on 22 June 1997 when the sponsor arrived in Fiji together with Lionel and Saraswati Burton, and they married the next day;
(c) Before the wedding the parties did not send each other letters or cards or remittances;
(d) There was no courtship before they met;
(e) The haste with which the wedding was organised … suggests to the Tribunal that the parties gave scant regard to a commitment to a shared life as husband and wife;
(f) The applicant was a strict Hindu who did not smoke or drink and the husband had no religion and did smoke and drink;
(g) The small registry wedding suggests that the wedding was not a significant or important wedding for the family … and raises concerns about the applicant’s commitment to a shared life as husband and wife.
For the reasons set out above in respect of the first asserted ground of review, the Tribunal rejected the genuineness of the marriage. The matters relied on by the applicant in this asserted ground of review were set out by the Tribunal as background to its concerns regarding the marriage. As it said at RD 713, these matters “cast strong doubts on the genuineness of the relationship”.
But although the matters raised by the applicant in relation to this ground raised doubts in the Tribunal’s mind regarding the marriage, it was the evidence of the repudiators which was the decisive factor in this review, not any alleged “personal and cultural prejudices” of the Tribunal.
Breach of s.359A
As part of the applicant’s allegation that the Tribunal failed to consider relevant matters relating to the repudiators’ evidence, she alleges in para.6(c) of the amended application and its amending document that the Tribunal failed to give her “copies of … adverse material” in its files, in particular:
The Department’s interview with her sister and brother-in-law, Saraswati Burton and Lionel Burton (“Lionel”) on 6 May 2003 in which they allegedly stated in part that Lionel had arranged the marriage; that the applicant had paid her husband to marry her; that the applicant would pay her husband $5,000 to attend the Departmental interview; and the statutory declaration allegedly completed by Lionel.
Section 359A of the Act provided, relevantly;
(1) Subject to subsection (2), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and
(c) invite the applicant to comment on it.
Section 359A did not require the Tribunal to provide documents to an applicant, it required the Tribunal to provide information of a particular class. The relevant issue therefore ought not to be whether the documents were supplied, with whatever information they contained, but whether, in affirming the decision of the delegate, the Tribunal relied on information, for present purposes being information possibly contained in such documents, which was not supplied in accordance with s.359A.
However, that is not the allegation and since the allegation does not reflect a duty imposed on the Tribunal it must fail. But even if the allegation had been framed in terms of the obligation created by s.359A, that obligation has not been breached because the information in question, referred to and relied upon by the Tribunal at RD 721.2 when expressing its conclusion, had been contained in the Tribunal’s s.359A(1) notices dated 12 September 2006 (RD 465 – 470) and 21 March 2007 (RD 518 – 526).
Conclusion
Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding seventy-one (71) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 22 May 2008
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