Cao v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 309
•10 April 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Cao v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 309
File number(s): BRG 233 of 2023 Judgment of: JUDGE EGAN Date of judgment: 10 April 2024 Catchwords: MIGRATION LAW – Whether the Tribunal intellectually engaged in an appropriate way with all of the claims made by the applicant – whether the applicant was denied procedural fairness – whether the Tribunal had regard to irrelevant considerations – no jurisdictional error established – application dismissed. Legislation: Migration Act 1958 (Cth) ss. 5 and 359
Migration Regulations ss. 1.09, 2.03A
Cases cited: He v Minister for Immigration and Border Protection & Anor (2017) 255 FCR 41
Zhang v Minister for Immigration and Multicultural & Indigenous Affairs [2005] FCAFC 30
Division: Division 2 General Federal Law Number of paragraphs: 32 Date of last submission/s: 4 April 2024 Date of hearing: 4 April 2024 Place: Brisbane Counsel for the Applicant: Mr G. Rebetzke Solicitor for the First Respondent: Ms Helsdon, Sparke Helmore Solicitor for the Second Respondent: Submitting appearance, save as to costs ORDERS
BRG 233 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: NGOC HONG AN CAO
Applicant
AND: MINISTER FOR IMMIGRATION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE EGAN
DATE OF ORDER:
10 APRIL 2024
IT IS ORDERED THAT:
1.The Amended Application for Review filed on 6 March 2024 be dismissed.
2.The Applicant pay the First Respondent’s costs of and incidental to the Application for Review fixed in the amount of $6500.00.
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 EGAN
Introduction
The applicant is a male citizen of Vietnam who arrived in Australia on or about 12 October 2010 on a student visa.
Between in or about February 2011 and June 2012, the applicant met one Mr Nolan who was an Australian citizen. On or about 25 October 2012, the applicant and Mr Nolan registered their relationship under the Relationships Act 2011 (Qld).
On 12 March 2014, the applicant made application for a Partner Class UK/BS (Subclass 820/100) Visa based upon his alleged de facto relationship with Mr Nolan.
It is not in dispute that in or about October 2016, the Department received allegations from a third party to the effect that the applicant and Mr Nolan had ceased their relationship.
On 20 July 2018, a delegate of the Minister invited the applicant to provide comment about the information received to the effect that the applicant and Mr Nolan were no longer in a relationship.
On 16 August 2018, the applicant provided a statement and other evidence which disputed the effect of the information about the cessation of the relationship provided to the Department.
On 20 September 2018, the delegate refused to grant to the applicant the visa because the delegate was not satisfied that the applicant was the spouse or de facto partner of the sponsor within the meaning of ss. 5F or 5CB of the Migration Act 1958 (Cth) (‘the Act’), as required by then cl 801.221(2) of Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’).
On 27 September 2018, the applicant applied to the Administrative Appeals Tribunal (‘the Tribunal’) for review of the decision of the delegate.
The Tribunal subsequently sent two (2) invitations to the applicant to attend a hearing before the Tribunal pursuant to the provisions of s. 359 (2) of the Act.
It is not disputed that the applicant did not respond to either s. 359 (2) invitation, and that the Tribunal then duly proceeded to determine the application for review of the delegate’s decision on the papers, without a face-to-face hearing. The applicant did not contend that the Tribunal had erred in doing so.
It is further not in dispute that the applicant provided further voluminous information to the Tribunal in support of the applicant’s claims. [1]
[1] Court Book (CB) pp. 225 – 514.
On 24 April 2023, the Tribunal affirmed the decision of the delegate.
Grounds of Review
At the time of the hearing before the Court, the applicant relied upon an Amended Application filed on 6 March 2024, the grounds of which were as follows:
1.The Second Respondent’s (the Tribunal) decision dated 24 April 2023 (Tribunal Decision) was affected by jurisdictional error, in that it failed to
take into accountthe relevant evidence before it. Accordingly, the fundamental decision-making process has been undermined by reason of ultra vires.consider the matters it was required to consider in Migration Regulations 1.09A (3)(c)(i) and (ii).Particulars
(a) The Tribunal failed to identify, understand and evaluate the information relevant to whether the applicant and his partner represent themselves to other people as being in a de facto relationship with each other;
(b) The Tribunal failed to make findings upon the question of whether the applicant and his partner represent themselves to other people as being in a de factor relationship with each other;
(c)The Tribunal failed to identify, understand and evaluate the information relevant to what was the opinion of the applicant’s friends and acquaintances about the nature of the relationship;
(d)The Tribunal failed to make findings upon the question of what was the opinion of the applicant’s friends and acquaintances about the nature of the relationship;
(e)The failure to consider the matters required by regulations 1.09A (3)(c)(i) and (ii) was material in that the Tribunal failed to consider all of the circumstances of the relationship as required by regulation 1.09A(2) and that such error denied the Applicant of the realistic possibility of a different ultimate finding as to whether the applicant and his partner were in a “de facto relationship”.
2.The Tribunal, in making the Tribunal Decision, also took into consideration irrelevant (and incorrect) information when making its decision, resulting in jurisdictional error which fundamentally undermined the decision-making process.
Particulars
Based on no evidence, the Tribunal erroneously found, and took into account adversely to the Applicant, that the Applicant’s partner did not plan to give oral evidence at a hearing before the Tribunal: see Statement of Reasons of the Tribunal at paragraphs [18], [29], [31], [36] and [38].
3.
The Tribunal Decision is wholly legally unreasonable.Ground 1 was a claim that the Tribunal had failed to make relevant findings concerning those matters as set out in cl 1.09A of Schedule 2 to the Regulations, which relevantly provided as follows:
1.09 A De facto partner and de facto relationship
(1) For subsection 5CB(3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5CB(2)(a), (b), (c) and (d) of the Act exist.
Note 1: See regulation 2.03A for the prescribed criteria applicable to de facto partners.
Note 2: The effect of subsection 5CB(1) of the Act is that a person is the de facto partner of another person (whether of the same sex or a different sex) if the person is in a de facto relationship with the other person.
Subsection 5CB(2) sets out conditions about whether a de facto relationship exists, and subsection 5CB(3) permits the regulations to make arrangements in relation to the determination of whether 1 or more of those conditions exist.
(2) If the Minister is considering an application for:
(a) a Partner (Migrant) (Class BC) visa; or
(b) a Partner (Provisional) (Class UF) visa; or
(c) a Partner (Residence) (Class BS) visa; or
(d) a Partner (Temporary) (Class UK) visa;
the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).
(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 in a de facto relationship with 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.
(4) If the Minister is considering an application for a visa of a class other than a class mentioned in subregulation (2), the Minister may consider any of the circumstances mentioned in subregulation (3).
More particularly, Counsel for the applicant relied upon the decision of the Full Court of the Federal Court in He v Minister for Immigration and Border Protection & Anor (2017) 255 FCR 41 at [73] – [79] inclusive, where the Full Court of the Federal Court was there dealing with a regulation in almost identical terms to that of cl 1.09 A of the Regulations. At [76] and [79] the Court respectively said as follows:
76.In our opinion, the requirement that the Tribunal “consider” the circumstances in reg 1.15A(3) means that the Tribunal is required to make findings upon each of the prescribed matters numbered with Roman numerals. The nature of these specific matters is such that each of them poses, in effect, a question or questions for the Tribunal. For example, in respect of “the nature of the household”, the Tribunal must ask:
“(i)whether there are children and whether there is any joint responsibility for their care and support;
(ii)what are the living arrangements of the persons are; and
(iii)whether and to what extent there is sharing of the responsibility for housework.
…
79.The Tribunal’s findings upon the matters set out in reg 1.15A(3) are made in the course of making a decision as to whether it is satisfied that the visa applicant and the sponsor are in a “married relationship” within s 5F of the Act. It must be emphasised that there is a distinction between the making of a decision by the Tribunal and the written statement it must give under s 368 of the Act: see Yusuf at [30]; Semunigus v Minister for Immigration and Multicultural Affairs [1999] FCA 422 at [19], approved in Semunigus v Minister for Immigration and Multicultural Affairs (2000) 96 FCR 533; [2000] FCA 240 at [11], [55], [101]; Minister for Immigration and Citizenship v SZQOY (2012) 206 FCR 25; [2012] FCAFC 131 at [40]. The making of a decision involves a mental process. The written statement functions as a record of the Tribunal’s reasons for making its decision. Those reasons provide evidence of the mental process engaged in by the Tribunal. If the written statement does not set out a finding concerning any of the prescribed matters set out in reg 1.15A(3) in Roman numerals, it may (but will not necessarily) lead to an inference that the Tribunal member made no such finding as part of his or her mental process when making the decision. In such a case, the Tribunal will not have complied with its obligation under reg 1.15A(2) to “consider” all of the circumstances of the relationship, including all the matters set out in reg 1.15A(3).”
However, at [82] and [86] of its reasons, the Court also held as follows:
“82.The Tribunal’s reasons were not structured in a manner that formulaically addressed each of the relevant matters in turn, but they did not have to be: see Zhang at [20]. Further, as Charlesworth J said in Singh at [20], the impressionistic and evaluative nature of the Tribunal’s task must be taken into account when drawing implications from its reasons, and, further, such reasons are not to be construed minutely and finely with an eye attuned to the perception of error.
…
86.Regulation 1.15A(3)(c)(ii) requires the Tribunal to consider “the opinion of the persons’ friends and acquaintances about the nature of the relationship”. The Tribunal noted that Ms He and Mr Xu had provided evidence from family members and others attesting to their relationship. The Tribunal referred to evidence from Mr Xu’s ex-wife and his son. The Tribunal’s reasons reveal no specific findings as to whether it accepted or rejected that evidence, or whether it was unable to reach a conclusion upon that evidence. However, this is not a case in which it should be inferred that the Tribunal failed to make a finding upon the matter as part of its mental process involved in making its ultimate decision. The Tribunal stated that it was not prepared to accept the evidence of Ms He and Mr Xu as credible. It follows from that finding that the Tribunal was not prepared to accept the evidence of the witnesses as reliable. When the reasons are read as whole, it should not be inferred that the Tribunal failed to make a finding upon the relevant matter.”
The Full Court in He clearly endorsed the earlier decision of the Full Court of the Federal Court in Zhang v Minister for Immigration and Multicultural & Indigenous Affairs [2005] FCAFC 30, where the Court was also dealing with sub-regulation 115A. At [19] – [21] inclusive of the reasons of the Court in Zhang, it was held as follows:
“19.The Tribunal referred at some length to the evidence about the nature of the relationship between the appellant and Mr Czapla in the 12-month period preceding 15 July 2002. The appellant said they met on 24 June 2001 and commenced living together on 28 June 2001 at Mr Czapla’s home (where he lived with his mother and younger sister). Its conclusions set out at [7] above reflect its consideration of all that evidence, including the three statutory declarations referred to. In our view, it clearly did not overlook that material. It was a matter for the Tribunal as to the weight to attach to each piece of evidence. The opening words of the quoted conclusions indicate it was aware of the evidence that the appellant and Mr Czapla started living together in June 2001. Despite that evidence, it concluded that a de facto relationship did not commence before February 2002. The fact that the Tribunal has not, in terms, made express findings about each of the matters referred to in placita (i), (ii) and (iii) of subreg 1.15A(3)(c) does not demonstrate in the present circumstances that the Tribunal did not have regard to those matters, or to the social aspects of the relationship between the appellant and Mr Czapla from late June 2001.
20.In its reasons, the Tribunal did not laboriously evaluate seriatim each of the considerations in reg 1.15A(3). However, it did consider evidence adduced by the appellant which appears to fall into each of the specified issues. In sequence, it considered evidence of the couple’s financial arrangements (taking into account the appellant’s oral evidence as to their arrangements and documentary evidence such as bank and superannuation statements), and then of their household relationship including the circumstances of their living arrangements such as the couple’s shared responsibility for caring for Mr Czapla’s mother. It also addressed the evidence as to the social aspects of the relationship, including that of the sister-in-law and ‘a number of photos and statutory declarations by mutual friends and the nominator’s mother attesting to the genuineness of the relationship’ the appellant had provided as well as two more recent statutory declarations of Mr Czapla’s mother and of the owner of a grocery store in Sefton. Those matters point clearly to the Tribunal having addressed each of the matters which reg. 1.15A(3) required, including that identified by reg 1.15A(3)(c).
21.For the reasons given, not only do we consider that the learned judge at first instance did not fall into error, but we agree with his Honour that a fair reading of the Tribunal’s reasons indicates that it did have regard to each of the matters which reg 1.15A(3) required it to consider. It reached its conclusion on the matter required by reg 1.15A(2)(d) on the whole of the evidence, and had regard to all the circumstances of the relationship including each of the circumstances specified in reg 1.15A(3).”
The requirement under cl 1.09A was that the Minister must consider all of the circumstances of the alleged spousal or de facto relationship. The Tribunal, when conducting its de novo review of the decision of the delegate, ought not to be unduly regulated or fettered in the manner in which it assesses and considers all of the evidence before it, or how much weight it gives to such evidence, prior to arriving at its decision, particularly in circumstances where the reasons of the Tribunal were comprehensive. [2] That approach, consistent with that found by the Court to be appropriate in Zhang, was the approach adopted by the Tribunal in this matter.
[2] WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 per
French, Sackville and Healy JJ at [46] – [47].
It was submitted on behalf of the applicant that the Tribunal had failed to refer to any evidence relating to the matters for consideration in cl 1.09A (3) (c) (i) and (ii). It was submitted that the Tribunal had failed to:
(a)Identify material relevant to the question of whether the applicant and Mr Nolan represented themselves to other people as their being in a de facto relationship.
(b)Identify the material relevant to the question as to what was the opinion of the applicant’s friends and acquaintances about the nature of their relationship.
(c)Refer to either question in its reasons.
(d)Record any findings of fact in relation to either question in its reasons.
At [13] – [14] of its reasons, the Tribunal set out how it had considered all of the matters required to be considered under cl 1.09A (3) of the Regulations.
At [15] – [23] of its reasons, the Tribunal referred to the evidence before the Tribunal going to the financial aspects of the relationship, but concluded that the parties did not have joint ownership of assets, joint liabilities or durable legal obligations owed to the other party. The Tribunal found that though the Tribunal had accepted that the parties shared day-to-day household expenses, that alone was insufficient to justify a finding that the financial aspects of the relationship satisfied the regulation.
At [24] – [28] of its reasons, the Tribunal undertook a consideration of evidence put before it about the nature of the household, including joint occupation of a home at Goodna in Brisbane. That there was a substantial period of joint occupation of that home by the applicant and Mr Nolan was diminished by the fact that there was evidence that the applicant had left the home for a period of time after what was described as a “constant drama” in the relationship between the applicant and Mr Nolan. The Tribunal was unsatisfied, however, that the nature of the household was such as to justify a finding that there was a de facto or spousal relationship.
At [29] – [30] of its reasons, the Tribunal examined the social aspects of the relationship. The Tribunal noted that the applicant had provided details of the social aspects of the relationship evidenced by a number of declarations. It was noted that there was evidence before the Tribunal from Mr Nolan that he and the applicant regularly spent time with mutual friends, including some who had provided support statements. Though it was found that the relationship information was “vaguely worded”, the Tribunal noted that the claims were to the effect that the parties also visited Mr Nolan’s elderly “second mother”, and that he had become a friend of the family. The Tribunal also noted photographs at social occasions showing them sharing time together. The Tribunal properly noted that though it afforded the social aspect evidence some weight in favour of there being a relationship, such weight was diminished by the fact that the applicant and others had failed to appear at the hearing to give evidence and present arguments. That absence of any face-to-face interaction was as a result of the applicant’s own inaction in failing to respond to the hearing invitations and requests given to him by the Tribunal. It was a legitimate and obvious observation on the part of the Tribunal.
At [31] – [34] of its reasons, the Tribunal recorded how a number of people had declared that, in their view, the applicant and Mr Nolan were in a genuine relationship and that they had a commitment to each other. The Tribunal again noted, however, that because there was no face-to-face hearing, there was not an opportunity to assess the evidence in a more thorough way. So much was trite.
It was conceded by Counsel for the first respondent that the Tribunal had erroneously stated in its reasons that Mr Nolan had not been nominated as a person who was intended to be called to give evidence on behalf of, and in support of, the applicant, at a time prior to the Tribunal cancelling the face-to-face hearing. In the Response to the hearing invitation, Mr Nolan was in fact nominated as “Witness 3”. [3] Despite the obvious error on the part of the Tribunal in that regard, it is clear that the Tribunal properly referred to the evidence of Mr Nolan, as set out in his comprehensive witness statements which were before the Tribunal, on a number of occasions. [4]
[3] CB pp. 227 – 230.
[4] CB pp. 45 – 47; 156; 424 – 427; 443 – 446.
The Court is satisfied that the Tribunal actively engaged with the claims and fulsome submissions made on behalf of the applicant, and that it did not err in making the findings which it did. The Tribunal addressed all of the issues which it was required to address and it did so having regard to all of the material before it. The applicant’s claims effectively sought a merits review of the decision of the Tribunal, something which was impermissible. There was no merit to Ground 1 of the Amended Application for Review.
Ground 2 was a claim that the Tribunal had made adverse findings against the applicant because it had erroneously recorded that Mr Nolan was not intended to be called as a witness on behalf of the applicant. There is no merit to such claim.
By reason of the applicant’s failure to appropriately respond to the request for further information made to him by the Tribunal, the Tribunal hearing was cancelled. Counsel for the applicant did not cavil with the decision of the Tribunal to do so. In those circumstances, the Tribunal was bound to conduct a hearing on the papers. There can be no valid suggestion that the Tribunal did not have regard to any of the evidence of Mr Nolan put before the Tribunal on behalf of the applicant. Indeed, the Tribunal specifically made reference to different aspects of Mr Nolan’s evidence in its reasons.
The Court finds that there is no reasonable basis for the submission that the Tribunal somehow assessed the applicant’s claims as being less tenable because of its erroneous finding that Mr Nolan had not been nominated as a witness to be called on behalf of the applicant. The Tribunal at all times accepted that it was both the applicant’s claim, as well as the claim of Mr Nolan, that they were in a complying relationship. The Tribunal assessed the evidence before it after considering and weighing up all of the claims and submissions. It did not err in doing so. There is no merit to Ground 2 of the Amended Application for Review.
The applicant has failed to establish jurisdictional error on the part of the Tribunal.
The Amended Application for Review is without merit and is dismissed.
The Court will hear the parties as to costs.
I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Associate:
Dated: 10 April 2024