BYJ20 v Minister for Immigration, Citizenship and Multicultural Affairs (No 2)
[2023] FedCFamC2G 438
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BYJ20 v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2023] FedCFamC2G 438
File number: SYG 541 of 2018 Judgment of: JUDGE LADHAMS Date of judgment: 26 May 2023 Catchwords: MIGRATION – judicial review of decision of Administrative Appeals Tribunal affirming decision not to grant applicant Partner (Temporary) (Class UK) visa – whether Tribunal decision affected by interpretation error – whether provision of information to Department by third party amounted to fraud on the Tribunal – no jurisdictional error – application dismissed Legislation: Migration Act 1958 (Cth) ss 360, 376, 476, 477
Migration Regulations 1994 (Cth) Sch 2, cll 820.211, Sch 3, criterion 3001
Cases cited: DVO16 v Minister for Immigration and Border Protection (2012) 273 CLR 177; [2021] HCA 12
Minister for Home Affairs v DUA16 (2020) 271 CLR 550; [2020] HCA 46
SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189; [2007] HCA 35
Division: Division 2 General Federal Law Number of paragraphs: 38 Date of hearing: 15 March 2023 Place: Perth Applicant: The applicant appeared in person Counsel for the First Respondent: Mr T Reilly Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: MinterEllison Lawyers
Table of Corrections 26 May 2023 In the cover sheet, Counsel for the First Respondent has been inserted. 26 May 2023 In the cover sheet, Solicitors for the Respondents have been inserted. 26 May 2023 Appearances for the Second Respondent has been inserted. ORDERS
SYG 541 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BYJ20
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE LADHAMS
DATE OF ORDER:
26 mAy 2023
THE COURT ORDERS THAT:
1.The application is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LADHAMS:
INTRODUCTION
The application before the Court is an application for judicial review of a decision made by the Administrative Appeals Tribunal (Tribunal) on 1 February 2018. The Tribunal affirmed an earlier decision made by a delegate of the Minister refusing to grant the applicant a Partner (Temporary) (Class UK) visa (partner visa). The application is brought pursuant to s 476 of the Migration Act 1958 (Cth) (Migration Act).
The applicant relies on two grounds of application. The first asserts jurisdictional error on the basis of inadequacies in interpretation at the Tribunal hearing. The second ground asserts that the Tribunal decision is affected by fraud on the Tribunal.
For the reasons explained below, I have found that the applicant has not established jurisdictional error in the Tribunal decision and the application for judicial review is therefore dismissed.
BACKGROUND
The applicant is a non-citizen who arrived in Australia as the holder of a subclass 456 visa which ceased on 18 December 2012. The applicant later applied for another substantive visa which was refused on 15 July 2013. The applicant exhausted all review rights with regard to that visa application.
On 6 March 2016 the applicant lodged an application for Partner (Temporary) (Class UK) visa, sponsored by his wife (the sponsor).[1] The Minister’s Department wrote to the applicant on 16 March 2016 expressing the view that the applicant did not meet criterion 3001 of Schedule 3 to the Migration Regulations 1994 (Cth) (Regulations) because his application was not lodged within 28 days of when his substantive visa ceased, and inviting him to comment on whether there were compelling reasons not to apply that criterion. The applicant did not provide any submissions in response to this invitation.
[1] The applicant to this proceeding has been allocated a pseudonym because he previously applied for a protection visa. I have not named the applicant’s wife in this judgment, as disclosing the name of the applicant’s wife might conceivably lead to the identification of the applicant.
On 29 June 2016 a delegate of the Minister refused to grant the applicant a partner visa. The delegate found that the applicant did not meet the Schedule 3 criteria and there were not compelling circumstances to waive those criteria, therefore the applicant did not meet the requirements of cl 820.211(2) in Schedule 2 to the Regulations.
On 15 July 2016 the applicant applied to the Tribunal for a review of the delegate’s decision. A Tribunal decision made on 5 April 2017 was set aside by consent on 9 October 2017 because the Tribunal failed to disclose to the applicant the existence of a certificate issued under s 376 of the Migration Act, and the matter was remitted to the Tribunal for reconsideration according to law.
Following the matter being remitted to the Tribunal, the Tribunal convened a hearing on 1 February 2018 at which the applicant appeared and gave evidence and presented arguments.
On 1 February 2018 the Tribunal affirmed the delegate’s decision not to grant the applicant a partner visa.
TRIBUNAL DECISION
The Tribunal identified that the issue for its consideration, in circumstances where the applicant was not the holder of a substantive visa at the time of his partner visa application, was whether he met the Schedule 3 criteria or whether there were compelling reasons for not applying those criteria.
The Tribunal found that the applicant did not satisfy criterion 3001, because he did not lodge his application for the partner visa within 28 days of the ‘relevant day’, which in this case was 18 December 2012.
In considering whether there were compelling reasons not to apply the Schedule 3 criteria, the Tribunal acknowledged the applicant’s desire for additional time to reconcile with the sponsor, in circumstances where the applicant and sponsor had not been living together for some months prior to the Tribunal hearing.
The Tribunal considered all of the available evidence before it and was not satisfied that the applicant and sponsor had a mutual commitment to a shared life together as husband and wife to the exclusion of all others or that their relationship is genuine and continuing. The Tribunal was not satisfied that the applicant and sponsor were in a spousal relationship for the purposes of the Migration Act at the time of the application or at the time of the decision. Given this finding, the Tribunal was not satisfied that waiving the Schedule 3 criteria to allow the applicant additional time to reconcile with the sponsor amounted to a compelling reason.
In circumstances where the Tribunal found that the applicant did not meet the Schedule 3 criteria and there were compelling reasons for not applying those criteria, the Tribunal found that the applicant did not meet the requirements of cl 820.211(2)(d)(ii) and affirmed the delegate’s decision.
PROCEEDINGS BEFORE THIS COURT
The application for judicial review was filed within 35 days of the date of the Tribunal decision as required by s 477(1) of the Migration Act.
The applicant relies on an amended application filed on 12 May 2022 which raises the following two grounds:
1.The Administrative Appeals Tribunal (“Tribunal”) fell into jurisdictional error because the interpreters’ translations were inadequate and caused the applicant to misunderstand the Tribunal.
Particulars
a.At [29] the Tribunal said, “Asked if he wanted more time to provide additional evidence to support his claims the applicant told the Tribunal that he had no further evidence to provide”.
b.The applicant asserts that he misunderstood the question referred to by the Tribunal at [29] due to the interpreter’s inadequate translation.
c. Accordingly, the applicant was denied procedural fairness.
d.Accordingly, the applicant was denied an opportunity to properly present arguments and evidence.
e. Accordingly, the decision-making process miscarried.
2.The Tribunal’s jurisdiction remains constructively unexercised as a result of a fraud on the Tribunal.
Particulars
a.At [26] the Tribunal noted that it “put to the applicant that the sponsor had informed the department that they had separated in March 2016 and that the marriage had been contrived for the purposes of a migration outcome”.
b.At [26] the Tribunal noted that it put to the applicant that “it appeared that the sponsor was not committed, having also claimed that the marriage was not only over but contrived”.
c.The information conveyed to the Tribunal about the marriage being contrived for the purposes of a migration outcome was false.
d.The person who conveyed to the Tribunal the above information was not the sponsor.
e.The person who conveyed to the Tribunal that information had misled the Tribunal as to their identity and the fact that marriage was contrived.
f.At [35] the Tribunal found that the parties “were not, and are not, in a genuine, ongoing and exclusive spousal relationship”.
g.The misleading information giving to the Tribunal was relevant to the Tribunal’s finding at [35].
h.The legislative scheme to afford natural justice to the applicant was thereby stultified, and the Tribunal’s jurisdiction remains constructively unexercised: SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; (2007) 232 CLR 189 at [49], [52].
The matter previously came before the Court for final hearing on 25 January 2023. On that occasion I raised with the applicant, as a matter of procedural fairness that his two grounds of application could not succeed without evidence. The applicant asked for a further opportunity to adduce evidence and I was satisfied that if given a further opportunity, the applicant may be able to provide evidence to support his grounds. I made orders for both parties to file additional evidence and submissions and adjourned the hearing. The reasons for those orders are set out in BYJ20 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 51.
Both parties filed affidavit evidence and further submissions in accordance with the Court’s orders. The application came before me again on 15 March 2023.
The evidence before the Court comprises:
(a)the court book;
(b)an affidavit of the applicant filed on 1 March 2018;
(c)an affidavit of the applicant filed on 23 February 2023 which annexes an affidavit of the sponsor, affirmed on 17 February 2023.
(d)two affidavits of Ms Jennifer Strugnell filed on behalf of the Minister, the first filed on 22 February 2023 and the second filed on 8 March 2023.
CONSIDERATION
Ground 1
Ground 1 alleges that the Tribunal decision at [29] was affected by an error in the interpretation of one part of the Tribunal hearing, which caused the applicant to misunderstand the Tribunal.
The Tribunal reasons at [29] read:
Asked if he wanted more time to provide additional evidence to support his claims the applicant told the Tribunal that he had no further evidence to provide.
On 25 January 2023 the Court raised with the applicant the need to provide a transcript of the Tribunal hearing to prove any allegation of interpreter error, and the type of transcript showing an interpreter’s evidence of how things were interpreted, and any corrected interpretation, that is often filed by parties in matters where interpretation error is alleged. Despite this, the applicant has not filed any transcript of the Tribunal hearing held on 1 February 2018, let alone one showing the interpretation at that hearing. He did annex to his affidavit of 23 February 2023 a transcript of a hearing convened by the Tribunal on 4 April 2017, which was prior to the decision that was quashed due to jurisdictional error. This transcript is not relevant to the ground advanced by the applicant.
The evidence that is before the Court in relation to ground 1 is the applicant’s evidence in his affidavit filed on 1 March 2018 to the effect that:
(a)the Tribunal did not provide him an opportunity to have time to reconcile with the sponsor and to provide further evidence; and
(b)if he had understood the interpreter correctly when he translated that the applicant was being offered an adjournment, there is no way that he would have rejected the offer, and therefore he believes that he misinterpreted the interpreter’s interpretation.
In the absence of a transcript showing interpretation error, the applicant is unable to establish as a fact that there was an interpretation error. Even if he could establish an error in interpretation, that would not necessarily amount to jurisdictional error in the Tribunal decision. As the High Court explained in DVO16 v Minister for Immigration and Border Protection (2012) 273 CLR 177; [2021] HCA 12 at [6]-[8] (footnotes omitted):
6.… Imperfections in communication arising out of mistranslation of words spoken or written in one language into another language are inherent in the human condition, as are imperfections in communication arising out of misuse or misunderstanding of words spoken or written in a common language. “Perfect interpretations” simply “do not exist”.
7.Unsurprisingly therefore, questions not infrequently arise as to the effect of mistranslation on curial or administrative outcomes. Those questions cannot be answered through the application of a single or uniform mode of analysis.
8.Whether and if so in what circumstances mistranslation might result in invalidity of an administrative decision turns necessarily on whether and if so in what circumstances mistranslation might result in non-compliance with a condition expressed in or implied into the statute which authorises the decision-making process and sets the limits of decision-making authority. In a decision-making process conditioned by a requirement to afford procedural fairness the content of which is implied by common law, the effect of mistranslation on the resultant decision will turn on whether the mistranslation has resulted in “unfairness” in the decision-making process amounting to “practical injustice”…
In the present case, the only error in interpretation that the applicant asserts is that he did not understand when he was being offered an adjournment (or, in the Tribunal’s words, more time to provide additional evidence). Even assuming that such an error could be established, there is no basis for finding that this resulted in any ‘unfairness’ or ‘practical injustice’ to the applicant, or that the applicant was denied a real and meaningful invitation to attend a hearing. There is no basis for concluding that any potential error in interpretation led to any breach of s 360 of the Migration Act.
Further, to the extent that the applicant wanted additional time to reconcile with his sponsor, the Tribunal was plainly aware of that request, having referred to it expressly at [28] of its reasons. There does not appear to be any miscommunication with the Tribunal in relation to the applicant’s wishes in that regard.
Ground 1 is not established.
Ground 2
Ground 2 alleges fraud on the Tribunal.
The Tribunal had before it information from the Department in the form of a job details report which purported to record information provided by the sponsor to the Department on 22 July 2016. Amongst other things, the job details report recorded that the sponsor told the Department that she and the applicant had separated on or about 29 March 2016 and that the relationship was contrived.
The applicant’s case is that the sponsor did not in fact provide this information to the Department and that the provision of information by some unidentified third party amounted to fraud on the Tribunal.
The sponsor gave evidence in her affidavit that she ‘did not provide the adverse information to the Immigration Department or the Tribunal’. In cross-examination, when asked what adverse information she was referring to, the sponsor responded that the adverse information was ‘fraud’ and the suggestion that she married the applicant so that he could move to Australia. She denied ever contacting the Department, suggesting that would be a ‘spiteful’ thing to do and she was not spiteful. She accepted in cross-examination that she and the sponsor separated in March 2016 and that she was angry. She did not dispute that someone contacted the Department, and when it was put to her that the person who contacted the Department knew quite a bit of information about her and the applicant, she suggested that it could have been anyone, and that anyone could find out information about them from Google or Facebook. The sponsor became upset at any suggestions in cross-examination that she was not being truthful.
For the Tribunal decision to be invalid as a result of fraud on the Tribunal, the applicant needs to establish that he was the innocent victim of fraud and that the fraud has ‘stultified’ the operation of the legislative scheme or caused the Tribunal to be ‘disabled’ from performing its statutory functions: SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189; [2007] HCA 35 at [51]; Minister for Home Affairs v DUA16 (2020) 271 CLR 550; [2020] HCA 46 (DUA16) at [18]. It is not enough for the applicant to assert that the fraud might have affected the process of decision-making in some abstract sense: DUA16 at [18].
I am not satisfied that the Tribunal decision in the present case is invalid due to fraud on the Tribunal.
First, I am not satisfied that there has been fraud. The alleged fraudulent conduct appears to be that some unidentified person contacted the Department in July 2016 purporting to be the sponsor and provided information about the relationship. The evidence of the sponsor that it could be anyone who contacted the Department is entirely speculative and the evidence before the Court does not establish any basis on which it would be plausible that some unidentified third party would contact the Department to provide information. I therefore do not accept the sponsor’s evidence that she did not contact the Department in July 2016. I do, however, accept that she did not advise the Department that she married the applicant so that he could move to Australia. There is nothing in the job details report that suggests that the sponsor had any particular motive for marrying the applicant. Rather, the way in which the information is recorded in the job details report suggests that the sponsor did not learn that the relationship was not genuine until after the marriage. I consider the more plausible scenario is that it was the sponsor who contacted the Department in July 2016 and gave information consistent with the information recorded in the job details report.
However, even if I am wrong in this finding, and some unidentified third party did contact the Department in 2016 purporting to be the sponsor, I would not find that the ground is established. In this sense, I accept the submission advanced by Counsel for the Minister to the effect that the outcome of this matter does not turn on whether or not I accept that there has been fraud.
The reason for this is because, even if there was fraud, I am not satisfied that it stultified or disabled the decision-making process of the Tribunal. I accept the submission advanced by Counsel for the Minister that, even if someone other than the sponsor contacted the Department in July 2016, all it would mean is that some of the information before the Tribunal was not, in fact, correct, but this does not amount to fraud. This is particularly so in circumstances where the information was put to the applicant and he was invited to, and did, comment on it. There is no basis upon which I can find in this case that a third party providing adverse information to the Department (if that is what happened) contributed in any adverse way to the exercise of any duty, function or power by the Tribunal.
Ground 2 is not established.
CONCLUSION
The applicant has not established that the Tribunal decision is affected by jurisdictional error. It follows that the application for judicial review must be dismissed.
I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 26 May 2023
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