BZM20 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 145
Federal Circuit and Family Court of Australia
(DIVISION 2)
BZM20 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 145
File number(s): SYG 3931 of 2017 Judgment of: JUDGE GIVEN Date of judgment: 28 February 2023 Catchwords: MIGRATION – Partner visa – whether Tribunal failed to consider integer of claim relating to compelling circumstances – transcript of Tribunal hearing cannot be used to elevate a line of questioning to constitute a basis for decision Legislation: Migration Act 1958 (Cth) ss 65, 91X
Migration Regulations 1994 (Cth) cl 820.211 of Schedule 2
Cases cited: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593
ATT20 v Minister for Immigration and Border Protection [2020] FCCA 499
AYX17 v Minister for Immigration and Border Protection (2018) 262 FCR 317
Boonkerd v Minister for Immigration & Anor [2019] FCCA 1527
Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352
Chen v Minister for Immigration & Multicultural Affairs (2000) 106 FCR 157
Kelly v Australian Postal Corporation (2015) 67 AAR 359
Malhi v Minister for Immigration and Border Protection [2017] FCCA 119
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Immigration & Citizenship v SZLSP (2010) 187 FCR 362
Minister for Immigration and Border Protection v MZAIV [2016] FCA 251
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1
NAXT v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 279
Vuong v Minister for Home Affairs [2019] FCCA 827
Division: Division 2 General Federal Law Number of paragraphs: 55 Date of hearing: 25 August 2022 Place: Sydney Counsel for the Applicant: Mr P Bodisco (hearing)
Ms U Okereke-Fisher (written submissions)Solicitor for the Applicant: Abu Legal Counsel for the Respondents: Mr D Hughes Solicitor for the Respondents: Clayton Utz ORDERS
SYG 3931 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BZM20
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE GIVEN
DATE OF ORDER:
28 February 2023
THE COURT ORDERS THAT:
1.The application filed on 18 December 2017, as amended, 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 GIVEN:
Before the Court is an application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) dated 27 November 2017 (Court Book (CB) 112 to 120) by which the Tribunal affirmed a decision of a delegate of the first respondent (delegate) dated 8 December 2016 to refuse to grant the applicant a Partner (Temporary) (class UK) (subclass 820) visa (partner visa) pursuant to s 65 of the Migration Act 1958 (Cth) (Act) (CB 55 to 61). The applicant has a pseudonym pursuant to s 91X of the Act by reason of having previously lodged a Protection visa application, following the refusal of which she sought judicial review.
Background
The applicant is a Chinese citizen who first arrived in Australia on 3 December 2012, travelling on a Tourist visa. On 28 February 2013, the applicant was included as a dependent in her mother’s visa application. On 21 August 2012, a delegate of the first respondent refused to grant the Protection visa. The applicant’s mother lodged an application for review with the (then) Refugee Review Tribunal which affirmed the decision on 21 March 2014. Following judicial review proceedings in this Court, an appeal was lodged with the Federal Court of Australia on 22 April 2014 but later withdrawn on 6 November 2014, following which the applicant did not hold a visa and was an unlawful non-citizen (as of 29 November 2014).
On 23 April 2015, the applicant applied for the Partner visa on the basis of her relationship with her sponsor and, consequently on 24 April 2015, was granted a bridging visa associated with the application (CB 1 to 37).
Given the applicant was not the holder of a substantive visa at the time the Partner visa was lodged, she was required to additionally satisfy the Schedule 3 criteria, namely 3001, 3003 and 3004. Criterion 3001 required that the application be made within 28 days after any substantive visa held, ceased, which the applicant did not meet. However, criterion 3001 could be waived if there were compelling circumstances for not applying it. On 27 October 2015 the applicant was sent a letter which invited her, inter alia, to comment on information (CB 44 to 47), namely on the existence of any such circumstances which she would like to advance. The applicant was also asked for further documents.
On 13 November 2015, the Department received the applicant’s response by which she made submissions as to why there were compelling reasons to waive the criterion (CB 50).
On 8 December 2016, the applicant was notified of the delegate’s decision refusing to grant the applicant the Partner visa (CB 52 to 61), which attached the relevant legislation upon which it was based (CB 62 to 83). The basis for the refusal was that the applicant did not satisfy cl 820.211(2)(d)(ii) of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations) because of the applicant’s failure to make her partner visa application within 28 days of the date that her tourist visa expired, as required by criterion 3001 of Schedule 3 of the Regulations.
On 13 December 2016, the applicant applied to the Tribunal for review of the delegate’s decision (CB 84 to 93). On 19 October 2017, the Tribunal invited the applicant to appear at a hearing (CB 98 to 99), which she accepted. On 21 November 2017, the applicant appeared before the Tribunal for a hearing at which she gave evidence and presented arguments. The sponsor also gave evidence (CB 113 at [5]). On 24 November 2017, the applicant sent the Tribunal some pay slips by facsimile (CB 103 to 109).
On 28 November 2017, the Tribunal notified the applicant of its decision, made on 27 November 2017, affirming the decision of the delegate not to grant the visa.
The Tribunal’s decision
After setting out the background to the decision (CB [113] at [1] to [7]) the Tribunal observed that the applicant was not the holder of a substantive visa at the time she applied for the Partner visa which was not in dispute (CB 113 at [8]). The Tribunal then set out the relevant criteria which the applicant was required to satisfy and found that, because the applicant’s last held visa was a Tourist visa which expired on 3 March 2013, she must therefore satisfy criterion 3001 for the purpose of cl 820.211(d)(ii) (CB 114 at [11] to [13]). Like the delegate, the Tribunal observed that in circumstances where the applicant did not satisfy criterion 3001, it could be waived if there were “compelling reasons” not to apply it (CB 114 at [14]).
The Tribunal set out the relevant principles and policy requirements which applied to the consideration of compelling circumstances (CB 114 to 115 at [16] to [19]) and then summarised the submission which had been made to the delegate, by the applicant (see [5] above, CB 115 at [20]) and the evidence given by each of the applicant (CB 115 to 116 at [21] to [29]) and the sponsor (CB 116 to 117 at [30] to [33]).
In respect of the question of whether the applicant met the above mentioned Schedule 3 criteria, the Tribunal:
(a)did not accept the longevity of the relationship between the applicant and the sponsor as constituting a compelling reason to not apply the criterion. The Tribunal also noted that (at that time) there were no children from the relationship (CB 117 at [34] to [36]);
(b)did not consider the applicant’s concerns about her father’s return to China in 2016 to be a compelling reason to not apply the criterion (CB 117 at [37]);
(c)was not convinced that either the applicant or the sponsor would face financial hardship if the applicant were to return to China;
(d)was not satisfied that the applicant and sponsor’s interest in starting a family amounted to a compelling reason (CB 118 at [42]);
(e)noted that the oral evidence at the hearing, and the applicant’s written submissions pertaining to her relationship with the sponsor’s children, was incongruous and the latter had been written to give the impression that the applicant has a more significant role in the lives of the children than what had been described at the hearing (CB 118 at [43]);
(f)accepted that while the sponsor’s children stayed with the applicant and the sponsor on a regular basis, and that a “positive and constructive” bond existed between the applicant and the children, it was not satisfied that the children would be seriously affected if the applicant were to return to China (CB 118 at [44]); and
(g)accepted that while the applicant may have not received the notification letter from the Department (following her mother’s withdrawal of her appeal from the Federal Court in respect of her Protection visa) as claimed, it was the applicant’s responsibility to abide by Australian laws including having a valid visa (CB 118 at [45]).
The Tribunal ultimately found that the above reasons, “separately and cumulatively”, did not provide compelling reasons for not applying the Schedule 3 criteria.
Application to this court
By an application to show cause filed with the Court on 18 December 2017, the applicant sought judicial review of the Tribunal’s decision and raised a single ground of review with particulars. At the time the proceedings were commenced the applicant was unrepresented.
On 29 January 2018, a Registrar of the Court made orders by consent which included leave to the applicant to file any amended application on or by 12 March 2018. The applicant did not avail herself of that grant of leave but, on 13 March 2018, an Affidavit of Toufic Laba Sarkis affirmed on 13 March 2018 was filed for her annexing a transcript of the Tribunal hearing which Mr Laba Sarkis deposes to having prepared (Transcript Affidavit).
The matter was called-over on 4 October 2018. On 20 October 2021, the applicant filed an Application in a Case[1] and Affidavit in support thereof, made by her on 6 October 2021. The relief sought by the Application in a Case was:
An order that the decision of the tribunal be quashed as per new evidence.
[1] As such an application was then called by reference to the Federal Circuit Court Rules 2001 (Cth)
The applicant’s Affidavit elucidated this prayer for relief (somewhat), by deposing to the fact that two children had been born to her and the sponsor since the Tribunal decision. The Affidavit annexed birth certificate extracts and passport information for each child.
The matter remained in the central migration docket until when, on 4 March 2022, it was brought into my docket and listed for hearing on 12 May 2022 by a Registrar of the Court. Due to the unavailability of the Court on that date, the listing was changed to 25 August 2022.
On 5 April 2022 the applicant’s present solicitors filed a Notice of Address for Service. On 19 April 2022 I made orders to regularise the filing of a proposed Amended Application filed on that date (Amended Application). On 27 April 2022 written submissions were filed for the applicant, which were prepared by a barrister, and addressed the grounds contained in the proposed Amended Application.
The first respondent’s written submissions were filed, in accordance with Court orders (referable to the adjourned hearing date) on 1 June 2022. At the hearing, the Court received the Court Book and Supplementary Court Book (SCB) (which were marked Exhibit “1R” and “2R” respectively). The Transcript Affidavit was read for the applicant, without objection.
Each of the parties was represented by Counsel, albeit the barrister who appeared for the applicant at the hearing was not the author of the written submissions filed for her. Counsel who appeared for the applicant did not move on the Application in a Proceeding. In any event, it is difficult to see the relevance of the material annexed to the Affidavit in support of it. To the extent that the applicant may be contending that, because children had now been born to her and the sponsor, she ought be granted the final relief she seeks in these proceedings, this is misconceived. The birth of children to that union,[2] each of which relevantly post-date the Tribunal decision,[3] is not a matter which the Court can take into account in deciding whether the Tribunal’s decision is affected by jurisdictional error.
[2] On 12 August 2018 and 26 December 2020
[3] 27 November 2017
Counsel who appeared for the applicant made no oral submissions at hearing, relying solely on the other barrister’s written submissions, and also declined the opportunity to make any submissions in reply. Counsel for the first respondent only addressed ground 1 in oral submissions and otherwise relied on the first respondent’s written submissions.
The Amended Application upon which the matter ultimately proceeded raises four grounds of review, with lengthy particulars. They can be summarised as follows (particulars omitted):
(a)ground 1: The Tribunal failed to consider an integer of the applicant's claim, being the potential loss of the matrimonial home, and otherwise failed to take into account significant evidence regarding an additional loan;
(b)ground 2: The Tribunal misunderstood its statutory task by placing reliance on the significant age difference between parties, and the applicant’s unlawful migration status;
(c)ground 3: The Tribunal’s finding that it was “not convinced that either party would face financial hardship if the applicant were to return to China” was not supported by evidence and was legally unreasonably; and
(d)ground 4: The Tribunal erred by failing to give proper, genuine and realistic consideration as to why the applicant’s individual reasons did not cumulatively amount to compelling reasons.
It is not for the Court to assess for itself whether there are compelling circumstances as to why the Schedule 3 criteria ought to be waived. Rather, the Court must assess whether the Tribunal’s decision was open to it, and made properly and according to law.
Grounds 1 and 3
These grounds each allege an error in respect of the Tribunal’s findings about potential financial hardship which the applicant claimed would flow if the she were to return to China (and which were advanced as being compelling reasons for waiving the Schedule 3 criteria). Accordingly, it is convenient to deal with the grounds together.
The first ground alleges a failure by the Tribunal to consider an integer of the applicant’s claim. It was submitted for the applicant that:
(a)if she left Australia this would cause her and her sponsor to lose their home (defined in the applicant’s written submissions as the "loss of matrimonial home claim");
(b)the applicant and the sponsor had procured an additional loan of $29,000 being a “hardship loan”; and
(c)the Tribunal failed to consider the loss of matrimonial home claim and/or the existence of the hardship loan.
The first respondent says that, by reference to the material in the Supplementary Court Book, the manner in which the applicant’s claims developed was as follows:
(a)in her letter of 12 November 2015, the applicant stated that she and the sponsor "have a big mortgage… [which] is now approx. $420,000 and if I am forced to depart Australia both my husband and I will be damaged emotionally and financially" (CB 50). There was no reference to a hardship loan;
(b)in her letter of 18 August 2016 (CB 49), the applicant provided additional financial documents (SCB 1 to 126). Those documents:
(i)demonstrated a home loan of approximately $420,000, solely in the name of the applicant's sponsor (account ending in 5737) (SCB 34); and
(ii)showed that the applicant and her sponsor held a joint Westpac Choice account (ending 6865) and a joint Westpac eSaver account (ending 3704) both with modest credit balances;
but did not show anything referable to the alleged hardship loan;
(c)at the hearing, the Tribunal received documents (SCB 131 to 172) which showed another Westpac home loan (account ending 0724). This was the alleged “hardship loan” account. The account was in the joint names of the applicant and the sponsor and on its face bore the description "Home Loan" with a term of "29yrs 7mths". The account had an associated offset account with a credit balance (CB 131 to 172).
(d)the Transcript Affidavit reveals the following exchanges at the Tribunal hearing (errors in original):
(i)the applicant gave evidence that she was recently "talking about knocking the house down to build two and then keep one sell one so we can get our mortgage down a bit";[4]
(ii)in response to the applicant's evidence that "if I do leave the country that will definitely affect our mortgage because I don't think he can cover all the payments by himself. So that will cost us to lose the house", the Tribunal noted the claimed consequences and stated that another option would be to sell the house given that they were "prepared to smash [it] down";[5]
(iii)the alleged hardship loan was introduced as follows by the applicant: "later on because we were in a harder financialship and we went to the bank like to top up the loan on our house loan. Yep and this is what we end up getting. And this is another way instead of getting from the house";[6] and
(iv)the discussion immediately subsequent to what is set out in the preceding sub-paragraph confirmed that the Tribunal understood the applicant's claim that this was a "home loan", whereby the applicant and her sponsor "borrowed money $29,000".[7]
[4] Annexure “A” to Transcript Affidavit at T 37.19 to 37.21
[5] Annexure “A” to Transcript Affidavit at T 39.1 to 39.13
[6] Annexure “A” to Transcript Affidavit at T 40.11 to 40.14
[7] Annexure “A” to Transcript Affidavit at T 40.27 to 41.14
The first respondent says that the particulars to this ground must be considered with the benefit of context gleaned from the matters set out in the preceding paragraph. It was submitted that the Tribunal expressly set out the applicant’s claim that, if the visa was not granted and she was required to depart Australia, this may cause the matrimonial home to be lost (CB 117 at [38]). However, considering the applicant’s financial circumstances as a whole, the Tribunal was ultimately not convinced on the basis of the available evidence that either the applicant or her sponsor would face financial hardship if the applicant were to return to China (CB 117 at [41]). The first respondent says that while the applicant may disagree with that conclusion, it was open to the Tribunal to draw on the material before it.
In terms of the alleged hardship loan, the first respondent says that this claim (as defined by the applicant's submissions) was not raised as being a basis upon which the Schedule 3 criteria should be waived. The first respondent says it was not mentioned in the applicant's 12 November 2015 submission and that, at the Tribunal hearing, it was identified only in an indirect manner. Despite this, the first respondent says the Tribunal was aware of the claim because the Tribunal addressed it as being part of the applicant’s home loan (see[26(c)], [26(d)(iii)] and [26(d)(iv)] above). The first respondent says that the Tribunal's finding at [38] of its reasons for decision about the size of the loans the applicant and her sponsor had in relation to “their home loan", should fairly be read as including the alleged hardship loan.
It is well established that the Court should not lightly find that a Tribunal failed to engage in an active intellectual process when considering a claim. In order to establish such an error, the applicant, who relevantly bears the onus, must support the allegation with clear evidence (see Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352 per Griffiths, White and Bromwich JJ at [49]). It is also the case that the Tribunal is not required to refer to every piece of evidence and every contention made by an applicant in its written reasons (see Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 per French, Sackville and Healy JJ at [46]).
The other relevant principle emerging from Applicant WAEE (supra) at [46] is that because the Tribunal is not a court, its reasons are not required to be that which one would expect of a court, and their Honours reiterated the cornerstone principle that as an administrative body, the Tribunal’s reasons are not to be scrutinised with an eye keenly attuned to error.
The manner in which the applicant seeks to cast her claims before the Court is not the manner in which they were advanced to the Tribunal. There is somewhat of a gloss applied in terms of how dire the financial situation was said to be. In fact, the applicant herself gave evidence to the Tribunal that the additionally borrowed funds, which are now cast as being a “hardship loan” were a “top up” and that the additional facility was procured in contemplation of the applicant and sponsor demolishing their home, and building two more houses in its stead.
In those circumstances, and where the Tribunal considered the finances of the applicant and the sponsor (including by reference to updated bank statements which had been provided), and the specific claim that they would suffer financially, I am not satisfied that there was a failure to consider the potential loss of the matrimonial home, or the additional home loan the applicant and her sponsor were carrying. I accept that it was implicit from the Tribunal’s analysis that it was aware that, encompassed within this issue, was a possibility that the hardship which might be caused if the applicant was to return to China included that the sponsor could not meet the mortgage payments such that the family home may need to be sold. The Tribunal went on to consider the applicant's evidence regarding her financial circumstances, and was ultimately not convinced based on the evidence available to it, that either party would face financial hardship if the applicant were to return to China (CB 117 to 118 at [41]).
The Tribunal’s reasons in this regard at [38] to [41], while brief, encapsulate the essence of what was advanced by the applicant as constituting a compelling circumstance. Brevity of reasons is not an error in and of itself: see NAXT v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 279 per Jacobson J at [15].
The applicant also contended in respect of ground 1 that, in order to have engaged in an active intellectual process in respect of the claimed financial hardship, the Tribunal was required to analyse and make conclusions about a range of potential scenarios, including “the real possibility that the sponsor, an Australian citizen may lose his residential home, in circumstances where he is divorced from his previous wife and has lost custody of his children from that marriage”. I reject that assertion. Those hypotheticals did not arise for consideration. The Tribunal is only required to deal with the case raised by the material or evidence before it (Chen v Minister for Immigration & Multicultural Affairs (2000) 106 FCR 157 at [114] per Merkel J). There is nothing in the present case which elevates the permutations (which are only now) advanced by the applicant as having squarely arisen on the materials for consideration by the Tribunal in the manner identified in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [58] per Black CJ, French and Selway JJ.
In the present case, a beneficial construction of the Tribunal’s reasons[8] does not demonstrate that the Tribunal erred as alleged. Accordingly, ground 1 is not made out.
[8] See XFKR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 280 FCR 535 at [27] per Perry, Banks-Smith and Anderson JJ
Ground 3, which is related to ground 1, alleges that the Tribunal’s findings in relation to the alleged financial hardship lack an intelligible justification and were legally unreasonable. The applicant says that because the Tribunal accepted the applicant’s claim that if she were to return to China she would earn less than in Australia, that there was no basis to then conclude that there would not be financial hardship experienced by the applicant or the sponsor, such that it did not constitute a compelling circumstance.
The first respondent says that the question for the Tribunal was ultimately an evaluative one and that the error alleged does not rise to the stringent standard required for the establishment of legal unreasonableness. The first respondent also says that this ground in essence simply seeks impermissible merits review.
The threshold for establishing legal unreasonableness is, indeed, high: see Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 per Crennan and Bell JJ at [135]. As adverted to by the first respondent, the High Court has also described the test for unreasonableness as being stringent and extremely confined (Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541).
Contrary to the applicant’s contention, the Tribunal’s decision in respect of financial matters cannot be reduced simply to what is contained in [41]. The Tribunal had regard to an array of evidence, much of which informed the question of the finances of the applicant and the sponsor, and which included:
(a)a range of financial evidence including bank statements, loan account details and tax assessments (CB 115 at [20] and [21] and SCB 34 to 101, 127 to 172);
(b)the respective jobs of the applicant and the sponsor (CB116 to 117 at [26], [27] and [33]);
(c)that the major financial issue claimed by the applicant and sponsor was the home loan (CB 117 at [38]);
(d)the Tribunal’s recounting of its discussion of those matters with the applicant at hearing which it took into account regarding the financial position of the applicant and sponsor (CB 117 at [39]); and
(e)the applicant's submissions including that she would likely earn a lower salary if she returned to China (CB 117 at [40]).
Overall, the conclusion of the Tribunal at [41] was open to it on the material which is recorded throughout its decision. While it may be that the conclusions reached are those upon which reasonable minds may very well differ, the applicant has not established that those findings were not open on the evidence or were legally unreasonable in the sense required to demonstrate the error alleged. Accordingly, ground 3 is also not made out.
Ground 2
By this ground the applicant alleges that the Tribunal misunderstood its task and applied the wrong test with respect to the question of whether the couple were in a genuine and continuing relationship. The particulars to this ground (which each refer to the Transcript Affidavit) raise issues regarding questions by the Tribunal about the age difference between the applicant and the sponsor, as well as the sponsor's knowledge of the applicant's unlawful migration status. The difficulty for the applicant in making this allegation is that (as will be obvious from the particulars) the matters relied upon to establish this jurisdictional breach by the Tribunal are not included in the in the Tribunal’s decision itself. Rather, the Court is asked to infer from matters discussed by the Tribunal with the applicant at hearing, that the Tribunal considered the age difference and the applicant’s migration to not be consistent with a genuine and continuing relationship.
The Transcript of the Tribunal’s hearing cannot be used to supplement and expand the Tribunal’s stated reasons for exercising the power in the way it did: see AYX17 v Minister for Immigration and Border Protection (2018) 262 FCR 317 at [58] per Tracey, Mortimer and Charlesworth JJ (citing in turn Minister for Immigration and Border Protection v MZAIV [2016] FCA 251 per Mortimer J at [33] and Kelly v Australian Postal Corporation (2015) 67 AAR 359 per Griffiths J at [51] to [53]); see also Minister for Immigration & Citizenship v SZLSP (2010) 187 FCR 362 at [95] per Rares J.
The Tribunal hearing transcript indicates that the Tribunal member enquired about the age difference between the applicant and the sponsor and the circumstances in which their relationship came about, including the chronology of the applicant’s unlawful migration status. However, this cannot be imported into the reasons for decision such that the Court would then analyse the reasons by reference to such extraneous materials as though questions asked at hearing implicitly form part of the Tribunal’s findings in circumstances where no such finding is otherwise present.
I agree with the first respondent’s submissions that the Tribunal was entitled to ask the questions it did in order to test the applicant’s responses, and to assess for itself the genuineness of the relationship between her and the sponsor. The underlying premise of the questioning was not an irrelevant consideration in the sense discussed in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 when the Tribunal came to undertake its inquisitorial task which would ultimately result in it having to assess the nature and genuineness of the relationship between the applicant and the sponsor.
By the written submissions filed for the applicant, she relies on Malhi v Minister for Immigration and Border Protection [2017] FCCA 119 at [36] (Malhi) per Judge Jones to contend otherwise and says that motivations for entering into a relationship are not “determinative of whether the parties’ relationship at the time of the Tribunal decision is genuine and continuing”. However, this is inconsistent with authority: see Boonkerd v Minister for Immigration & Anor [2019] FCCA 1527 (Boonkerd) per Judge Driver at [45] to [46] and Vuong v Minister for Home Affairs [2019] FCCA 827 per Judge Kelly at [71].
In Boonkerd at [46], Judge Driver found that:
The Tribunal is entitled to have regard to an applicant’s motivation for entering into a relationship, although the Tribunal may fall into error if it treats that motivation as the determinative factor.45 Further, the visa criteria in clause 820.211(2)(a) and 820.221 require that at the time the visa application was made, and at the time of the decision, the applicant is the spouse or de facto partner of an Australian citizen or permanent resident or eligible New Zealand citizen. Thus, the genuineness of the relationship must be determined both at the time of application and the time of decision.
In the present case there is nothing arising from the Tribunal’s reasons to demonstrate that it took into account irrelevant information in respect of the parties’ motivation for entering into the relationship, much less that such information was thought by it to be determinative of the visa application. Nothing arising from the transcript of the Tribunal hearing, which cannot supplement or expand upon (let alone substitute) those reasons, alters that conclusion.
Accordingly, ground 2 is not made out.
Ground 4
The final ground of review alleges that the Tribunal erred by failing to consider the entirety of the circumstances of the applicant and her sponsor, citing ATT20 v Minister for Immigration and Border Protection [2020] FCCA 499 (ATT20) at [75] to [79].
In ATT20 the Court found error constituted by the Tribunal having neglected to consider factors cumulatively and whether, when so considered, they amounted to compelling reasons. Rather each of the reasons must be individually compelling.
The first respondent says that the Tribunal did not err in the manner identified in ATT20, that it was clearly aware that its included having regard to all the circumstances of the case (CB 115 at [18]) and that it set out the critical aspects of evidence accordingly (CB 115 to 117 at [20] to [33]). In addition to considering the evidence and claims individually, the Tribunal then undertook a cumulative assessment.
In the present case I agree that there is no error of the kind alleged in ATT20, or at all. The observations of the first respondent set out in the preceding paragraph, as to the structure and substance of the Tribunal’s reasons for decision, are accurate. The penultimate section of the Tribunal’s decision before the conclusion is headed “overall assessment”. In that part of its reasons the Tribunal expressly sets out the various factors raised by the applicant and says that it has considered them “separately and cumulatively but it is not persuaded that they provided compelling reasons for not applying the Schedule 3 criteria in this case” (CB 118 to 119 at [46]).
Ground 4 is not made out.
Conclusion
The decision of the Tribunal is not affected by jurisdictional error. Accordingly, it is a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given. Associate:
Dated: 1 March 2023
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