CHAN v Minister for Home Affairs
[2018] FCCA 3891
•14 December 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CHAN v MINISTER FOR HOME AFFAIRS & ANOR | [2018] FCCA 3891 |
| Catchwords: MIGRATION – Review of administrative appeals decision – whether decision affected by jurisdictional error – jurisdictional error not established – application dismissed. |
| Legislation: Migration Act 1958 (Cth), s.376 |
| Applicant: | DANETH CHAN |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | BRG 442 of 2018 |
| Judgment of: | Judge Vasta |
| Hearing date: | 14 December 2018 |
| Date of Last Submission: | 14 December 2018 |
| Delivered at: | Brisbane |
| Delivered on: | 14 December 2018 |
REPRESENTATION
The Applicant appearing on her own behalf
| Solicitors for the First Respondent: | Sparke Helmore |
ORDERS
That the Application filed 8 May 2018 is dismissed.
That the Applicant pay the costs of the First Respondent fixed in the sum of $5,000.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
No. BRG 442 of 2018
| DANETH CHAN |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex tempore)
On 11 April 2018, the Administrative Appeals Tribunal (“the AAT”) affirmed a decision not to grant the Applicant, Daneth Chen, a partner visa.
The background to this decision is that the Applicant, Daneth Chen, is a citizen of Cambodia. On 28 November 2011, she applied for a partner visa, on the basis of her relationship with an Australian citizen, a person called Gaen Mou. He was the sponsor. The matter was referred for processing, in relation to the permanent partner visa, and the parties provided further information in support of their relationship.
That relationship had many aspects to it. There were quite a number of affidavits from people who said that the relationship was an ongoing and genuine one.
On 18 March 2014, both the Applicant and the sponsor attended an interview with the delegate. During the course of that interview, the sponsor notified the delegate that he, to use his words, “wanted to come clean.” He told the delegate that the relationship was not genuine and that he had been paid $50,000.00, by the Applicant, and he had used that money to help with his business. He then gave a statutory declaration to that effect.
Six days later, the Applicant engaged a new representative and advised the delegate that she was a victim of family violence and she provided supporting documentation. She was invited to comment on the information provided by the sponsor. In effect, she said that she didn’t accept any of that and simply was a person in a genuine relationship, which broke down because of family violence. The delegate refused to grant the visa and that was done on 7 August 2017.
On 22 August, the Applicant applied to the Tribunal for a review of that decision. The Tribunal held a hearing on 15 February 2018. The Applicant was invited to have the sponsor come along, but the sponsor did not. So the response given by the Applicant, to the Tribunal, was that the sponsor would not be present and the Applicant didn’t intend to call any witnesses.
The Tribunal ensured that the hearing was conducted pursuant to its own vulnerable person’s guidelines and ensured that the hearing was conducted according to the statements of natural justice that are codified in the Migration Act 1958 (Cth) (“the Act”).
There was a s.376 certificate, that the Tribunal gave to the Applicant, and the Applicant was invited to comment on the validity of the certificate. There were no submissions made and the Tribunal noted, and told the Applicant, that only one bit of that information in that certificate was considered relevant and that was that the department had, on two separate occasions, received information that the parties had entered into a contrived relationship. The Applicant told the Tribunal that their relationship was genuine, there was never any moneys exchanged and that she would not lie about it.
The Tribunal put to the Applicant, that there were inconsistencies between the evidence that she gave and the evidence that the sponsor gave. This was done in accordance with s.359AA. Those included that the sponsor said he had been living with his parents since 13 February 2013 and the Applicant said that he had been living with her until 18 March 2014, the day that he gave the interview to the delegate.
The second bit of information, pursuant to that section, was that the sponsor had told the delegate that the relationship was contrived and that the representative who was there had told the two of them to keep their facts and answers the same. The Applicant denied that the information was untrue and, as husband and wife, they just said it as it was.
The sponsor said that the Applicant’s brother was deceased, which was contrary to the Applicant’s evidence that her brother was alive, which caused the Tribunal to question the sponsor’s knowledge of the Applicant’s family. The sponsor and the Applicant also gave inconsistent responses to the delegate about what they had done the Saturday night prior to the interview. The Applicant’s response was that the sponsor deliberately answered the questions wrong, in order to send the Applicant back to Cambodia.
The fourth bit of information was that the sponsor had entered the room, where the Applicant was being interviewed, and confessed that the marriage was not real and that the Applicant had responded, “Am I still eligible to stay here? Am I entitled to stay here?” The Tribunal put to the Applicant that she may have responded in a different way, if what the sponsor was saying was incorrect and a lie. In response, the Applicant said that she answered emphatically and that she did not accept that answer, because their marriage was genuine. She said that she was overwhelmed and could not respond in any other way.
The Tribunal noted that the representative of the Applicant, at that hearing, asked whether the sponsor could be questioned and the Tribunal indicated it was a matter for the Applicant what witnesses she called. However, the Tribunal understood the limitations on evidence when the relationship had ceased and that questions could not be put to the sponsor which would then be taken into account. The Tribunal proceeded to consider whether the Applicant met the criteria, which was, in effect, that the relationship was a genuine one which had now ceased.
The Tribunal accepted that the Applicant and the sponsor were married on 27 November 2011. They were validly married. The Tribunal accepted that there was evidence of the financial aspects of the relationship.
The Tribunal looked at the nature of the household and accepted that the Applicant and the sponsor lived together, with the Applicant’s sister and her husband, from 27 November 2011, but that there was conflicting evidence as to when they ceased doing that. The Tribunal actually gave the Applicant the benefit of the doubt and accepted that they lived together, until the date of the interview before the delegate; that is, 18 March 2014. The Tribunal was satisfied that, during that time, they shared responsibility for the housework.
With respect to the social aspects of the relationship, the Tribunal placed some weight on the evidence that the Applicant and the sponsor represented themselves to others as being married.
Finally, in relation to the nature of the parties’ commitment to each other, the Tribunal accepted the Applicant may have been committed to a long‑term relationship with the sponsor and that she, initially, drew a considerable degree of companionship and emotional support from him, but the Tribunal considered that as the relationship had ceased, it did not have the benefit of hearing evidence from the sponsor and that there were limitations in regard to being able to assess the sponsor’s commitment to the relationship.
However, the Tribunal considered the evidence from the sponsor, at the interview, that he was paid to do what he had done, supported by the two other allegations, that that evidence, altogether, was compelling. The Tribunal placed significant weight on this evidence and it found that the Applicant’s response to this evidence, during the delegate interview, was telling. It also seemed to be corroborative of the claims, made by the sponsor, that the relationship was contrived.
The Tribunal found that the Applicant paid the sponsor for the partner visa. The Tribunal also noted the inconsistencies in the Applicant’s and the sponsor’s evidence contributed to its concern regarding the sponsor’s commitment to the relationship. Accordingly, the Tribunal found that the sponsor had no commitment to a long-term relationship with the Applicant or that he saw the relationship as genuine and continuing.
The evidence that the Applicant had made about the family violence that had occurred during the relationship was looked at by the Tribunal, but they considered that, even if they accepted what had been said, that was not inconsistent with the finding that the sponsor, at no time, had a commitment to a long-term relationship with the Applicant and, so, the Tribunal placed no weight, one way or another, on those allegations of family violence.
Having considered that evidence, the Tribunal was not satisfied that the Applicant and the sponsor had a mutual commitment to a shared life as a married couple or that their relationship was, at any time, genuine or continuing. The Tribunal was not satisfied that the criteria, under cl.801.221 (6)(b) and cl.801.221(6) were satisfied and, because of that, they were not obliged to consider the family violence.
That decision having been made, the Applicant, on 8 May 2018, filed the present originating application. There are two grounds of review. They are as follows:
1. The member failed to refer my case for an independent professional to assess whether or not I have suffered domestic violence inflicted on me by my estranged husband, Gaen NOU in a similar way as in the case of Sok v Minister for Immigration and Ethnic Affairs [2015] FCAFC 56.
2. The tribunal therefore erred in its decision and breach in procedural fairness as I was not given a proper hearing and justice as an applicant in the review.
In the affidavit that the Applicant filed when she filed this matter, she claimed, in that affidavit, that the AAT did not give regard to all the “evidences” in her case and that there should have been a referral to an independent professional; and then there is this, at paragraph 5:
5. The member has given me opportunity to response to allegations or admissions made by my estranged husband however member had failed to give me the benefit of the doubt by inviting my estranged husband to provide a sworn evidence before her.
In looking at those grounds, it is trite to say that the requirements under this part of the Act are fairly clear. That is, as the Tribunal said in their very thorough assessment of the application, that cl.801.221(6) is met, if the Applicant would meet the requirements of clause 801.221(2) except that the relation had ceased and (b) the Applicant has suffered family violence, committed by the sponsoring partner. This, in short compass, really means that the Applicant has to meet the requirements that this was a genuine spousal relationship, where there was a mutual commitment to a shared life as a married couple and that the relationship was genuine and that was the case, except that the relationship had ceased and the Applicant had suffered family violence.
It means that, unless it is that the Tribunal is satisfied that there was a genuine relationship that was a mutual commitment to a shared life as a married couple, to the exclusion of all others, then the Tribunal cannot consider the family violence, because it is only when the criteria has been met, that there was a genuine relationship, that one then considers whether there has been family violence in the relationship.
The Tribunal had gone through, quite thoroughly, what all the evidence was before it. The Tribunal came to conclusion that the relationship was not genuine and, so, therefore, there was no need to look at family violence. In those circumstances, there is no merit in ground one.
As far as ground two is concerned, the allegation, in some ways, is that it was a requirement of the AAT to invite the sponsor to provide evidence at the hearing. The representative actually asked the Tribunal to call the sponsor at the hearing, as I have previously detailed. Although the Tribunal had requested, in its written invitation, that the sponsor be made available, the Applicant gave written notice that she did not intend to call any witnesses in support of her application.
So there was not any notice, by the Applicant, before they got to the Tribunal, which would have let the Tribunal know that they wanted to have the sponsor as a witness. In fact, it was the very opposite. But, secondly, there is not any obligation on the Tribunal to call a witness in these circumstances.
The Tribunal has complied with all of the procedural fairness or natural justice obligations under that part of the division of the Act. The Applicant has not shown what part of those provisions the Tribunal has not complied with. It was quite obvious that the Tribunal went out of its way to make sure that they conducted the hearing in accordance with the vulnerable person’s guideline. Therefore, I do not find that there is any merit in that.
In the verbal submissions that were made before me today, the Applicant simply reiterated her first ground. She attempted to give me some new evidence of her mental health condition. As I said to her, during the course of the hearing, I cannot accept any new evidence and I cannot look at matters there were not before the AAT, as this is a review and not an appeal.
As far as the finding that the Applicant and the sponsor were not in a genuine spousal relationship, the Applicant simply disagrees with that finding. Of course, that has not been a ground, because for the Court to look at that would simply be an engaging upon an impermissible merits review.
However, the Applicant has made a fairly heartfelt plea to my sympathy that she is now another relationship, she has a child with that person, that if it is that she has to leave the country, it will be unfair to her present partner, it will be unfair to her child and that I should be looking at those considerations and she asked for my understanding as to her wanting to continue her life in Australia. Of course, those last submissions, really, are irrelevant considerations to my deliberations on this matter.
As I have said, going through all that I have found, there is no jurisdictional error. I, therefore, dismiss the application.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Vasta
Date: 10 January 2019
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