Butterworth v Minister for Immigration
[2016] FCCA 876
•18 April 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BUTTERWORTH v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 876 |
| Catchwords: MIGRATION – Application for review of the decision of the Administrative Appeals Tribunal – whether Tribunal failed to complete the exercise of jurisdiction – whether Tribunal failed lawfully address a consideration required – jurisdictional error found – application allowed. |
| Legislation: Migration Act 1958 (Cth), ss.5F, 359A, 476 Migration Regulations 1994 (Cth), reg.1.15A |
| Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 SZOVB v Minister for Immigration and Citizenship [2011] FCA 1462; (2011) 125 ALD 38 Applicant WAEE v Minister for Immigration and Multicultural Affairs [2003] FCAFC 184; (2003) 75 ALD 630 |
| Applicant: | BRIAN WILLIAM BUTTERWORTH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 42 of 2015 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 18 February 2016 |
| Date of Last Submission: | 18 February 2016 |
| Delivered at: | Sydney |
| Delivered on: | 18 April 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr L J Karp |
| Solicitors for the Applicant: | D’Ambra Murphy Lawyers |
| Counsel for the Respondents: | Mr H P T Bevan |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The name of the second respondent is amended to read “Administrative Appeals Tribunal”.
A writ in the nature of certiorari issue directed to the second respondent quashing its decision dated 4 December 2014.
A writ in the nature of mandamus issue directed to the second respondent requiring it to reconsider and re-determine the review application made on 17 October 2013.
The first respondent pay the applicant’s costs set in the amount of $6,825.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 42 of 2015
| BRIAN WILLIAM BUTTERWORTH |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 7 January 2015 and ultimately amended on 18 February 2016, seeking review of the decision of the Migration Review Tribunal, now the Administrative Appeals Tribunal (“the Tribunal”) made on 4 December 2014 which affirmed the decision of the Minister’s delegate to refuse a Partner (Provisional) (Class UF) visas to Ms Mina Um and her three children. Mr Brian William Butterworth (“the applicant”) sponsored Ms Um and her children for the visa.
In evidence before the Court is a bundle of relevant documents filed by the Minister (“the Court Book” – “CB”). Both parties have filed written submissions. In his submissions, the applicant has conveniently set out the background to his grounds. The Minister appears content with what is set out there and, given that in my view it is a fair description of the relevant background and the Tribunal’s reasoning, I adopt those paragraphs for the purposes of this judgment ([1] – [11] of the applicant’s written submissions):
“[1] The applicant, Mr Butterworth, is an Australian citizen, now 71 years of age (CB 50). On 30 September 2012 he married Ms Mina Um, a Cambodian citizen born on 1 March 1979 (CB 58) in a civil ceremony at Landsvale in south west Sydney (CB 58). On 12 October 2012 Ms Um lodged an application to migrate to Australia as Mr Butterworth’s spouse, seeking to satisfy the criteria in Schedule 2 Part 309 of the Migration Regulations, 1994. Her three children were included in her application (CB 3-37).
[2] In a statutory declaration dated 13 October 2012 (CB 64-65) Mr Butterworth declared that he met Ms Um in 2009 when she came to visit her mother, Tharvy Sim (or Sim Thavy – see CB 288) whom Mr Butterworth had got to know after Ms Sim had settled in Australia in 1995. He and Ms Um met several times during Ms Um’s visit. They also met during Ms Um’s three subsequent visits to Australia, during which Mr Butterworth also met her children. During those visits Mr Butterworth started thinking about a permanent relationship. They married on 30 September 2012. Mr Butterworth had visited Cambodia three times after their marriage.
[3] In her statutory declaration, also made on 13 October 2012 (CB 66-71), Ms Um described her abusive relationship with her first husband whom she described in terms of being a violent drunk. She also described the inception of her relationship with Mr Butterworth and that during her visits to Australia she began to have feelings for him. In their statutory declarations both also addressed what might be called the Reg 1.15A(3) issues.
[4] The papers also contain a record of and an account for the hospitalisation of Ms Um’s son who broke his arm 13 October 2012 (CB 68-69). Also submitted to the Department were mobile phone records (CB 88-100), records of bank transfers
(CB 102-107, 110-111), and transcripts of multiple Viber messages (CB 112-140).
[5] The application was rejected by an immigration officer in Phnom Penh on 23 September 2013 (CB 164-172). The officer found, at CB 170 that Ms Um had not ‘provided sufficient credible evidence’ to persuade him that the relationship was genuine and continuing. The review application was lodged on 17 October 2013 (CB 174-187).
[6] On 15 October 2014, after the hearing, the Tribunal wrote to Mr Butterworth’s solicitor and migration agent pursuant to s. 359A of the Migration Act. That letter outlined a number of issues which the Tribunal considered to have been the subject of inconsistent the evidence given at hearing (CB 269-272). These were;
(a) When Ms Um’s ex husband left the family home in Cambodia.
(b) Who paid for Ms Um’s travel to Australia in July 2012.
(c) Where Mr Butterworth proposed marriage to Ms Um.
(d) Where Ms Um’s children resided immediately after the marriage.
(e) Who paid the medical costs associated with Ms Um’s son’s broken arm.
[7] The solicitors responded on 10 November 2014 with a detailed submission (CB 280-284). They attached a statutory declaration of Sim Thavy, Ms Um’s mother (CB 288-290), and a statutory declaration of Sophak Um (CB 305-6) who is Mina Um’s sister (see CB 17) and was an Australian citizen. Both statutory declarations responded to issues raised in the s. 359A letter.
THE APPLICABLE LEGISLATION
[8] As the Tribunal recorded, at CB 318 [51], cls 309.211 and 309.221 of schedule 2 to the Migration Regulations require that at the time the application was made, and at the time of the decision, the visa applicant is inter alia the spouse of an Australian citizen. The term, ‘spouse’ is defined in s. 5F of the Migration Act;
5F Spouse
(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.
[9] Migration Regulation 1.15A(1), reproduced at CB 324 states that that regulation sets out arrangements for determining whether the conditions in s. 5F(2) exist. Reg 1.15A(2) requires the Tribunal to consider all the circumstances of the relationship including the matters set out in sub regulation (3). Sub regulation (3) sets out specifically what must be considered in four paragraphs each of which has several sub paragraphs. The purpose of consideration of the specified paragraphs and sub paragraphs in Reg 1.15A(3) is to ascertain whether the factors in s. 5F(2) exist.
THE TRIBUNAL DECISION
[10] The Tribunal found Mr Butterworth to be ‘generally sincere in his evidence’, but it had concerns about evidence going to the inception of the relationship and inconsistencies in the evidence of Mr Butterworth and Ms Um that were disclosed to them in the s. 359A letter (CB 318 [50]). It found that the marriage satisfied s. 5F(2) of the Migration Act (CB 318 [53]).
[11] Moving to Reg 1.15A(3) issues the Tribunal found;
a) Financial aspects (CB 319 [54]-[59]): That the couple had no jointly owned assets or joint liabilities, and that as they live in different countries they do not share day to day expenses. It noted that Mr Butterworth’s evidence that he transfers money to Ms Um, often through Ms Sim, his mother in law, is supported by documentation. It placed limited weight on this aspect of the relationship because the parties live in different countries.
b) Nature of the household (CB 319-320 [60]-[64]): That the discrepancies in the evidence as to where Ms Um’s children lived immediately after the marriage was not adequately explained. Nor did the parties have joint responsibility for children and the Tribunal was not prepared to accept that they had established a joint household. It acknowledged that Mr Butterworth had moved to larger accommodation for that purpose. Due to the limited time that the parties had spent together it placed little weight on this aspect.
c) Social aspects of the relationship: The Tribunal accepted that the parties had a wedding celebration for about 20 people, all being Ms Um’s friends and family or people Mr Butterworth had met through them. It considered it understandable, in view of the fact that he was estranged from his adult daughters that they were unaware of the relationship.
(ii) The Tribunal continued that there was very little independent evidence that the relationship was recognised by any of Mr Butterworth’s friends and family. There was evidence that his sister in Queensland had been informed of the relationship, but did not attend the wedding and had not met Ms Um (CB 320 [68]). The Tribunal also referred, at CB 320 [70], to Ms Sim’s assertion that the relationship was genuine and it accepted that the parties with members of Ms Um’s immediate family (CB 320-1 [71], but these factors did not overcome the concerns outlined elsewhere in its reasons and did not satisfy it that the relationship was one of husband and wife rather than friends or acquaintances.
d) Nature of the mutual commitment: The Tribunal was concerned about what it saw as the ‘hurried’ decision to marry, and considered that the relationship was entered into with ‘little mature or considered thought’ (CB 321 [73]). After finding that Ms Sim acts as a go between to assist communication and ‘is a pivotal figure in the relationship’ the Tribunal stated that it gave no weight to discrepancies in evidence as to the marriage proposal and details of the honeymoon (CB 321 [74]-[76]).
(ii) Having so found, the Tribunal moved on to the communication between Mr Butterworth and Ms Um. It expressed concern over the parties’ ability to communicate, citing confusion over who paid Ms Um’s son’s medical costs and the superficial level of communication indicated by Viber communication records, even though it accepted that there was regular contact by telephone.
(iii) It did place some weight on discrepancies in the evidence as to when Ms Um’s ex husband moved his belongings from the former matrimonial home. After some analysis it concluded that Ms Um’s lack of candour regarding her, ‘ongoing connection with her former husband indicates a lack of trust between the parties at the time of their marriage’ (CB 322 [79]).
(iv) It concluded this aspect of its decision by finding that Mr Butterworth’s moving to larger accommodation, and his financial support for Ms Um indicated a level of commitment on his part, and that he was seeking companionship and physical and emotional support from Ms Um. But it found that given the communication difficulties it was not prepared to accept that they provided each other with a meaningful level of companionship or emotional support. It was not satisfied that they were in a genuine relationship – that they were committed to a shared life to the exclusion of all others.”
Application Before the Court
The grounds of the application, as further amended on 18 February 2016, are in the following terms:
“1. The Tribunal failed to complete the exercise of its jurisdiction.
Particulars
(a) In finding that the requirements of s. 5F(2)(b) of the Migration Act were not met, the Tribunal failed to consider and decide as to whether the visa applicant had a commitment to the relationship to the exclusion of all others.
2. The Tribunal erred in failing to lawfully address the consideration set out in Migration Regulation 1.15A(3)(c)(ii).
Particulars
(a) Failure to consider the evidence of the visa applicant's sister, Sophak Um which was relevant to the criterion in s. 5F(2)(b) of the Migration Act, and Migration Regulations 1.15A(2), read with Reg 1.15A(3)(c) and 1.15A(3)(d).”
Relevant Legislation
The term “spouse” is defined on s.5F of the Act in the following terms:
“(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.”
Relevantly, reg.1.15A(3) of the Migration Regulations 1994 (Cth) (“the Regulations”) was in the following terms at the relevant time:
“1.15A Spouse
…
(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.”
Consideration
The key finding by the Tribunal in affirming the delegate’s decision was that it was not satisfied that Mr Butterworth and Ms Um were at the time of the application for the visa, or at the time of its decision, in a “genuine spousal relationship” ([83] at CB 323).
Section 5F(2) sets out the matters relevant to determining whether persons are in a “married relationship” for the purposes of the Act. Section 5F(3) of the Act permits regulations to be made to assist the decision maker in determining whether the factors in s.5F(2) of the Act are made out. There is no dispute that the matters in reg.1.15A(3) of the Regulations were made for that purpose.
Ground one asserts that the Tribunal failed to complete the exercise of its jurisdiction, and thus fell into jurisdictional error because it failed to ask itself a question it was required to ask in reaching its conclusion that the requirements of s.5F(2)(b) of the Act were not met. That question is described by the applicant’s particulars as being the extent to which Mr Butterworth and Ms Um were dedicated to the indefinite continuation of the marital relationship.
The Minister submitted that the language used by the applicant before the Court did not strictly match the language relevantly used in s.5F of the Act and reg.1.15A of the Regulations. However, I understood the applicant’s assertion to be as follows. Section 5F(2)(b) (containing one of the elements necessary to establish a “married relationship” for the purposes of the Act) provides for the necessity of a “mutual commitment to a shared life as husband and wife to the exclusion of all others”.
The applicant argues that the Tribunal’s analysis leading to its conclusion that the requirement in s.5F(2)(b) of the Act was not met arose from its findings that there was a lack of mature consideration of the decision to marry, Ms Um’s lack of candour in telling Mr Butterworth when her former husband moved out of the former marital home and communication difficulties between Mr Butterworth and Ms Um which gave rise to the Tribunal’s finding that they did not provide a meaningful level of emotional support to each other.
The complaint is that the Tribunal proceeded from those findings to a conclusion that Mr Butterworth and Ms Um (or one of them) lacked commitment to each other and, in doing so, failed to properly consider their dedication to the relationship. The applicant argued that their degree of emotional attachment to each other and their determination to remain together, essentially subjective matters, are relevant to the question as to whether the relationship should continue “indefinitely”. The complaint is that the Tribunal did not address that question.
In context, the applicant’s argument focussed attention on reg.1.15A(3)(d)(iv) of the Regulations. That is, that the Tribunal failed to consider whether Mr Butterworth and Ms Um saw the relationship as a “long term” relationship.
I agree with the Minister that the relevant statutory question for the Tribunal was, as required by s.5F(2)(b), that Ms Butterworth and Ms Um have a mutual commitment to a shared life as husband and wife to the exclusion of all others.
The matters set out at reg.1.15A(3) of the Regulations, and reg.1.15A(3)(d) of the Regulations are not finite in addressing the matter of the mutual commitment. As is made clear (at (d)) the nature of that commitment is said to “include” the matters at regs.1.15A(3)(d)(i) – (iv). That is, in determining whether parties have a mutual commitment to a shared life, the matters set out in the Regulations for that purpose, directing attention to the nature of that commitment, include the duration of the relationship, the length of time the persons have lived together, the degree of companionship and emotional support they derive from each other, and whether they see the relationship as long term.
The Tribunal’s relevant analysis was that Mr Butterworth was seeking companionship and, physical and emotional support from Ms Um ([82] at CB 322 to CB 323). The Tribunal did not reject Ms Um’s evidence that she wanted to be Mr Butterworth’s carer ([43] at CB 317). The applicant’s complaint is that the Tribunal did not go further than this.
The applicant’s argument seeks to propose that the Tribunal is required to address each of the matters set out at reg.1.15A(3) of the Regulations, and in particular reg.1.15A(3)(d) of the Regulations separately.
The parties’ respective views of the relevant statutory scheme share common ground to a large extent. Nonetheless, as set out below some areas of disagreement about this scheme colour the view of how the Tribunal approached its task. It is to the statutory scheme, therefore, that attention must initially focus.
I agree with the Minister that while s.5F of the Act is obviously central in this case given the importance of the definition of “spouse” to the consideration of the criteria for partner visa, it is important to note the broader statutory context within which any visa (including partner visas) operates before the visa can be granted.
Section 65 of the Act provides that before a visa can be granted, the decision maker (here the Tribunal) must be satisfied that the criteria for the grant of the visa are met. If that requisite level of satisfaction is reached then, the visa “must” be granted. The particular relevance of this will become clear in the discussion below concerning the question of whether, in the current case, a part of the criteria requires only consideration of the subjective view of the relevant person, being the parties to the partner/spouse relationship.
In this context, as set out above, s.5F of the Act provides the definition of “spouse” for the purposes of the Act. To be a “spouse” a person must be in a “married relationship”. Section 5F(2) sets out the factors relevant to, and which must be met before a person can be said to be in, such a “marital relationship” for the purposes of the Act. Each of the matters at ss.5F(2)(a) to (d) of the Act must be, as the Minster described it cumulatively met such as to fall within the definition.
In the current case, the issue before the Tribunal was whether Mr Butterworth and Ms Um had a mutual commitment to a shared life as husband and wife to the exclusion of all others (s.5F(2)(b) of the Act). This was one of the elements in the definition of “married relationship”. Although I note, as the Minister submitted, there is a degree of “overlap” between each of these factors.
As set out above, there was no dispute between the parties that the purpose of s.5F(3) of the Act was to enable regulations to be made to assist in the decision-maker’s determination as to whether the matters, or any one of them in s.5F(2) of the Act are made out. This immediately directs attention to reg.1.15A of the Regulations.
Sub-regulation 1.15A(1) makes clear what is also set out above as being the purpose of reg.1.15A of the Regulations. As also set out above the visa for which the application was made in the current case was a Partner (Provisional) (Class UF) visa. Regulation 1.15A(2) of the Regulations provides that in considering an application for such a visa the relevant decision maker “must consider all of the circumstances of the relationship, including the matters set out in subregulation (3)”.
For current purposes paragraphs (c) and (d) of reg.1.15A(3) of the Regulations are particularly relevant. That is, “the social aspects of the relationship”, and “the nature of the persons’ commitment to each other”.
In the current case, the parties before the Court agreed that the regulation directs the attention of the decision-maker to the obligation to consider all of the circumstances of the relationship, which include the matters set out at reg.1.15A(3) of the Regulations. However, this must be understood as meaning that the Tribunal must consider the matters at regs.1.15A(3)(a) to (d) of the Regulations to the extent that they are relevant to the actual circumstances of the particular case before it.
I do not comprehend the regulation to require the Tribunal to consider matters not relevant to the actual circumstances of the particular case before it. The wording of reg.1.15A(2) of the Regulations initially directs attention to all the circumstances of a case and then directs attention to the inclusion, in that context, of the matters set out at reg.1.15A(3) of the Regulations.
Where the parties differed in the interpretation of the statutory and consequential regulatory scheme is with the way the decision maker is to approach the consideration of whether the relevant persons had a “mutual commitment to a shared life as husband and wife”. Noting here, in particular and as set out above, the link between the matters set out reg.1.15A(3) of the Regulations, and through the facility and operation of s.5F(3) of the Act, the matters set out at s.5F(2) in relation to the definition of marital relationship.
The applicant argues that “mutual commitment” requires a state of mind. That is, that what s.5F(2)(b) of the Act requires is for the Tribunal to be satisfied as to each of the persons’ subjective intention.
Initially, in explaining this before the Court, the applicant submitted that the mutual commitment was exclusively a matter of the intention of the persons or parties to the claimed relationship. That is, exclusively a subjective element. When pressed, however, the applicant expressed the view that external objective factors could go to the Tribunal’s consideration of the “persons” commitment, as set out at reg.1.15A(3)(d) of the Regulations.
In all, I understood the applicant’s position to be as follows. The requirement that the persons have a mutual commitment to a shared life, which is one of the requirements set out at s.5F(2) of the Act, directs attention exclusively to the persons’ subjective intention. Some of the matters at reg.1.15A(3)(d) of the Regulations, which are to be included in the Tribunal’s consideration of all of the circumstances of the case, are a mixture of objective (reg.1.15A(3)(d)(i) and (ii) of the Regulations) and subjective intention (reg.1.15A(3)(d)(iii) and (iv) of the Regulations).
In my view, the applicant’s attempts to emphasise the subjective element said to be contained exclusively in s.5F(2)(b) of the Act and partly in the Regulations, diverts attention from a proper construction of the section and the regulation.
As is made clear in reg.1.15A(2) of the Regulations, the Tribunal must consider all of the circumstances of the relationship. That will obviously include such subjective factors as the persons’ or parties to the claimed relationship’s subjective intentions. However, I do not read s.5F of the Act, or reg.1.15A(3) of the Regulations, as limiting the consideration of all of the circumstances of the persons’ relationship to each of their subjective intentions.
As the Minister submitted, the task for the Tribunal is to evaluate the evidence and claims before it, taking into account all of the circumstances, including those matters set out in the Regulations. Those matters must also include the objective elements of those circumstances. Otherwise, as the Minister correctly in my view submitted, it cannot be that the Act and the Regulations create a situation where a persons’ claimed intention must be accepted, and the visa granted simply on what each asserts.
The applicant’s argument before the Court was that the Tribunal made various findings about the evidence of Mr Butterworth and Ms Um, and their relationship. These included a finding that Mr Butterworth was “generally sincere in his evidence” ([50] at CB 318) and that they formed a relationship which “was entered into with little mature or considered thought” ([73] at CB 321). In relation to Ms Um, the Tribunal gave “some weight” to her evidence as to when her former husband had moved out of the matrimonial home and found a lack of candour on the part of Ms Um in relation to her former husband ([79] at CB 322).
In relation to Mr Butterworth, the Tribunal found that the transfer of funds to Ms Um and relocation to larger accommodation “indicate[d] a level of commitment to the relationship” on his part ([81] at CB 322). As stated above, it accepted that Mr Butterworth was “seeking companionship and physical and emotional support” from Ms Um ([82] at CB 322 to CB 323).
Ultimately, the Tribunal found ([83] at CB 323):
“The Tribunal finds that the parties know each other personally, have socialised together in Australia and communicate regularly with one another. However, the Tribunal is not satisfied that the parties were, at the time of application, or are currently in a genuine spousal relationship. The Tribunal is not satisfied on the evidence that the visa applicant and the review applicant are committed to a shared life as husband and wife to the exclusion of all others.”
The applicant submitted that given its earlier findings concerning Mr Butterworth, a fair reading of [83] (at CB 323) is that while the Tribunal accepted relevant parts of Mr Butterworth’s evidence concerning his intention and commitment, it did not accept that Mr Butterworth and Ms Um had a commitment to a shared life.
What was said to be missing in this analysis was whether Ms Um had a commitment to the relationship. It accepted Mr Butterworth’s intentions towards the relationship, but, although it expressed concerns about some aspects of Ms Um’s evidence, it made no finding about her intentions or commitment to it. That is said to be the failure of the Tribunal to complete the proper exercise of its jurisdiction.
The Minister’s submission was that the Tribunal did consider the intention of both relevant parties. The submission referred to Mr Butterworth’s statutory declaration (CB 65 – “The Nature of Our Commitment to Each Other”) and the statutory declaration of Ms Um (CB 67 – “The Nature of Our Commitment to Each Other”).
Further, the Minister referred to the Tribunal’s relevant account of what occurred at the hearing:
1)Mr Butterworth’s evidence at [33] (at CB 316):
“If the visas are granted the visa applicant plans to find work in Australia and she will also care for the review applicant. His carer will go back to her own home. The children will attend local primary and high schools.”
2)Ms Um’s evidence at [38] (at CB 316 to CB 317):
“The visa applicant said that the review applicant told her that he loved her in 2012. She felt pity for him because he was alone and had a lot of sickness. After he proposed her mother consulted a fortune-teller. They were going to get married on 1 August but later changed the date to 30 September 2012.”
3)To be read with post hearing submissions (at CB 280.9):
“Another example is the interpretation of ‘srolang’ as pity. ‘Srolong arnit’ may mean pity, but ‘srolong’ is closer to a love, or attraction due to admiration for someone working hard and caring for their family, rather than just pity. The expression does not have a simple English interpretation, but just saying ‘pity’ creates a totally different connotation for an English speaker to a Khmer speaker.”
4)Ms Um’s evidence at [41] (at CB 317):
“The visa applicant said that she and the review applicant speak by telephone every day. They talk about love, what the children have eaten, their relatives and each other’s health.”
The Minister then referred the Court to the Tribunal’s consideration of the evidence in light of the statutory and regulatory requirements. The Minister’s submission was that the question of the nature of Mr Butterworth’s and Ms Um’s commitment to each other is addressed with the finding at [82] (at CB 322 to CB 323), which should be read with the evidence as set out above (at [41]). At [82], the Tribunal found (at CB 322 to CB 323):
“The review applicant is 35 years older than the visa applicant and has numerous significant physical health problems. He is assisted with daily living by a full-time carer. The review applicant is estranged from his adult children and the majority of his close friendships and social life appears to be linked to the visa applicant’s mother. The Tribunal accepts that the review applicant is seeking companionship and physical and emotional support from the visa applicant.”
The Minister’s position was that the Tribunal’s reasoning should be read as follows. Mr Butterworth is seeking companionship and emotional support from Ms Um, and Ms Um would give him that support. That latter proposition was said to be consistent with her evidence as referred to above. In that sense the Tribunal did properly consider Mr Butterworth’s and Ms Um’s commitment to each other.
I do not accept the Minister’s submission. It is the case that the Tribunal did consider and make a finding about Mr Butterworth’s commitment to the relationship. That much is plain at [82] (at CB 322 to CB 323) of the Tribunal decision.
However, in relation to Ms Um, the Minister’s submissions, at its highest requires [82] (at CB 322 to CB 323), when read in context of what relevantly precedes it, to be read as including an implicit finding as to Ms Um’s commitment. Even on a fair reading, that conclusion is not available.
While there was evidence before the Tribunal that went to the question of Ms Um’s commitment to a shared life with Mr Butterworth, the Tribunal made no finding in relation to that evidence as it did in relation to Mr Butterworth (see at [82] at CB 322 to CB 323). That is, as the applicant’s ground asserts, it failed to complete the exercise of its jurisdiction in deciding whether Ms Um had a commitment to the relationship to the exclusion of all others.
The Minister’s argument on how [82] of the Tribunal’s decision record (at CB 322 to CB 323) should be read, is that when read contextually, it includes a consideration of Ms Um’s commitment as well as that of Mr Butterworth. A further difficulty, for the Minister in the Court accepting that argument is that if it were to be accepted, it leaves an unexplained inconsistency in the Tribunal’s subsequent findings.
At [82] (at CB 322 to CB 323) the Tribunal accepted that Mr Butterworth was seeking certain things from the relationship which went to the matter of a mutual commitment. It made no analogous reference consistent with its finding in relation to Mr Butterworth. In short, it made no complementary finding as to what Ms Um was seeking.
It is to be remembered that the relevant criterion required a “mutual” commitment. While I do not accept the applicant’s submission that this is a matter to be determined exclusively with reference to the subjective evidence of the parties, the Tribunal’s failure was to make no finding in relation to the subjective elements of the evidence about Ms Um which could have led to the objective determination of that question. While some of the Tribunal’s preceding analysis may have provided a basis for such a finding, it is for the Tribunal, not the Court, to complete its task and make findings as required by the statutory and regulatory scheme.
Ground one is made out. There is no reason not to grant the relief the applicant seeks on that basis. However, given the parties fully argued ground two it is appropriate that I also consider it.
Ground two asserts that the Tribunal failed to lawfully address the consideration set out in reg.1.15A(3)(c)(ii) of the Regulations. In particular, and in context of reg.1.15A(2) and reg.1.15A(3)(c) and (d) of the Regulations, it failed to consider the evidence or “opinion” of Ms Um’s sister, Ms Sophak Um, which was relevant to the issue of whether Mr Butterworth and Ms Um had a mutual commitment to a shared life as husband and wife.
In his submissions, the applicant explained that all factors relevant to a relationship need to be considered, although recognising that some aspects may, in the particular circumstances of each case, weigh more heavily than others. The applicant also relied on the proposition that all cogent evidence, in this case going to an aspect of a marriage, must be considered by the Tribunal (Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 at [112]).
The applicant referred to the Statutory Declaration of Ms Sophak Um made on 5 November 2014 which was given to the Tribunal (CB 305 to CB 306). Ms Sophak Um gave the opinion that the relationship was genuine (see [7] at CB 305). This was said to go to the matters of the nature of the relationship, the degree of companionship, the perception of longevity of the relationship and a mutual commitment to a shared life. The applicant submitted that there was no consideration by the Tribunal of the Statutory Declaration and that this revealed jurisdictional error.
The following background is relevant to the consideration of this ground. Following the hearing the Tribunal wrote to the applicant pursuant to s.359A of the Act by letter dated 15 October 2014 (CB 268 to CB 272). The information given to Mr Butterworth was in relation to aspects of the evidence given by Ms Um, the visa applicant, concerning when her former husband had moved out of the former matrimonial home, the payment of airfares for her travel to Australia, the details of the marriage proposal, where Ms Um’s children resided at the relevant time and payment of medical costs for Ms Um’s son who broke his arm while in Australia.
The Statutory Declaration from Ms Sophak Um was a part of the applicant’s response to the Tribunal’s letter (CB 280 to CB 308). In its decision record, the Tribunal made specific reference to this response (at [47] at CB 317):
“The Tribunal received a written response from the review applicant’s migration agent on 10 November 2014. It included a written submission, a statutory declaration by the review applicant, statutory declarations by the visa applicant’s mother and sister, a statement by the visa applicant, medical records related to the visa applicant’s son and copies of money transfers. The review applicant’s migration agent stated that some of the visa applicant’s evidence had not been correctly interpreted at the hearing. The Tribunal has taken that submission into account when considering the discrepancies in the evidence.”
[Emphasis added.]
Further, the Tribunal stated at [49] (at CB 318):
“In making its findings, the Tribunal has considered documents contained in the Department and Tribunal files as well as oral evidence provided by the review applicant, witness and visa applicant at hearing. The Tribunal has also considered the information received after the hearing in response to the s.359A letter.”
I agree with the Minister that, on the evidence, it is not open to find that the Tribunal failed to consider the Statutory Declaration from Ms Sophak Um.
First, as set out above, the Tribunal made specific reference to the Statutory Declaration, and that it considered the Statutory Declaration amongst the other evidence provided by the applicant.
The applicant relied on SZOVB v Minister for Immigration and Citizenship [2011] FCA 1462; (2011) 125 ALD 38, particularly at [43], to argue that simply referring to the sister’s Statutory Declaration did not necessarily mean that the Tribunal considered, or had regard to, the matters raised in the Statutory Declaration. This point was said to be illustrated in the current case with the Tribunal’s specific and subsequent reference in its analysis to the contents of Ms Um’s mother’s Statutory Declaration, which had been submitted at the same time.
It is the case that such mere reference is not dispositive of this question. What is required is some basis from which it can be seen that the Tribunal had regard to the relevant contents of the Statutory Declaration. In my view, a starting point for this can be seen with what the Tribunal stated at [48] – [50] of its decision record (at CB 318).
Here, further to the earlier expressed statement that it had received, amongst other documents, the sister’s Statutory Declaration (at [47] at CB 317), the Tribunal made subsequent specific reference that it “considered the information” received after the hearing in response to its s.359A letter. That “information” included Ms Sophak Um’s Statutory Declaration, and the information contained in it, which was received in response to its s.359A letter. That must also be read fairly with what is set out below.
Second, as the Minister submitted the Tribunal does not have to refer to every piece of evidence before it (Applicant WAEE v Minister for Immigration and Multicultural Affairs [2003] FCAFC 184; (2003) 75 ALD 630 at [46]). Although in the circumstances of the current case it can be said that the Tribunal did make such references in relation to the Statutory Declaration.
Third, it would appear from submissions before the Court that the applicant’s complaint can be more narrowly understood as a complaint that the Tribunal did not make detailed reference to the contents of the Statutory Declaration in its analysis, not that the Statutory Declaration was ignored.
The Tribunal’s letter sought comment on, and response to, certain information. Ms Sophak Um’s Statutory Declaration addressed some of the information referred to by the Tribunal in its s.359A letter and was part of the applicant’s response to the Tribunal’s invitation to comment on the information. Her Statutory Declaration addressed:
1)When Ms Um’s husband left home ([2] – [3] at CB 305).
2)Payment of airfares to Australia ([4] at CB 305).
3)Details of the honeymoon ([5] at CB 305).
4)Payment of medical experiences ([6] at CB 305).
Paragraph 7 of Ms Sophak Um’s Statutory Declaration, on which the applicant now relies, was a “concluding” paragraph of Ms Sophak Um’s opinion as to whether the relationship was genuine.
As stated above, in its analysis the Tribunal expressed concerns about the inconsistent evidence given by Mr Butterworth and Ms Um as to when her former husband moved out of the former matrimonial home ([79] at CB 322).
Paragraph 2 of Ms Sophak Um’s Statutory Declaration (at CB 305) does not go to this matter. While at [3] (at CB 305) Ms Sophak Um addresses the removal of the former husband’s property, it does not go to the inconsistencies in the evidence between Mr Butterworth and Ms Um.
While [4] of Ms Sophak Um’s Statutory Declaration (at CB 305) goes to the question of inconsistency in the evidence as to the payment of the airfares, the Tribunal placed no weight on this inconsistency in its decision (see [80] at CB 322).
Paragraph 5 of Ms Sophak Um’s Statutory Declaration (at CB 305) makes declarations about the family’s travel to Wollongong on the couple’s honeymoon. Again the Tribunal placed no weight on the inconsistencies in the evidence of Mr Butterworth and Ms Um in its decision ([76] at CB 321).
Paragraph 6 of Ms Sophak Um’s Statutory Declaration (at CB 305) goes to the matter of the payment of health costs for Ms Um’s son’s broken arm in Australia. Again, the Tribunal placed no weight on the discrepancy in the evidence between Mr Butterworth and Ms Um in this regard ([78] at CB 322).
What is left, therefore, is the “opinion” of Ms Sophak Um expressed at [7] of her Statutory Declaration (at CB 305). The Tribunal accepted that Mr Butterworth was seeking companionship and physical and emotional support from Ms Um ([82] at CB 322 to CB 323). To the extent that Ms Sophak Um’s opinion addressed Mr Butterworth’s attitude, then any lack of specific reference to Ms Sophak Um’s opinion in this regard cannot be said to lead to an inference that the Tribunal did not consider that opinion.
Further, to the extent that Ms Sophak Um’s Statutory Declaration (at CB 305) in its totality can be said to support the proposition that Mr Butterworth and Ms Um socialised with a number of Ms Um’s family, then the Tribunal accepted this to be the case ([71] at CB 320 to CB 321).
In all, I find that it cannot be said that the Tribunal failed to consider Ms Sophak Um’s Statutory Declaration (at CB 305). The applicant’s second ground is not made out.
Conclusion
In any event, ground one of the applicant’s application, as ultimately amended, is made out. I will make the orders sought by the applicant.
I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Date: 18 April 2016
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