Chan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 1904
•18 August 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Chan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1904
File number(s): SYG 2829 of 2017 Judgment of: JUDGE HUMPHREYS Date of judgment: 18 August 2021 Catchwords: MIGRATION – Administrative Appeals Tribunal – Partner (Subclass 801) (Spouse) visa – whether the second respondent’s decision under s108(b) of the Migration Act 1958 (Cth) that there was non-compliance by the visa holder (the applicant) of s 101(b) of the Migration Act 1958 (Cth) in the way described in the notice issued under s 107 of the Act, was irrational, or illogical and/or not based on findings or inferences of fact supported on logical grounds – whether jurisdictional error is made out – no jurisdictional error is made out – the application is dismissed Legislation: Migration Act 1958 (Cth), ss 100, 101, 107, 108, 109 Cases cited: DAO v Minister for Immigration and Border Protection (2018) 258 FCR 175
DFS17 v Minister for immigration and Border Protection [2019] FCA 642
Minister for Immigration and Citizenship v Brar [2012] FCAFC 30
Minister for Immigration and Multicultural Affairs v McDade [2001] FCA 457
Minister for Immigration and Border Protection v Singh (2014 231 FCR 437
Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1
Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541
Minister for Immigration and Citizenship vSZMDS (2010) 240 CLR 611
Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99
Number of paragraphs: 45 Date of last submission/s: 11 August 2021 Date of hearing: 11 August 2021 Place: Parramatta Solicitor for the Applicant: Ms Withana Counsel for the Respondents: Mr Cleary ORDERS
SYG 2829 of 2017 BETWEEN: WAI SAN CHAN
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE HUMPHREYS
DATE OF ORDER:
18 AUGUST 2021
THE COURT ORDERS THAT:
1.The name of the First Respondent be changed to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
2.The application is dismissed.
3.The Applicant to pay the First Respondent’s costs, fixed in the amount of $7,467.00.
REASONS FOR JUDGMENT
JUDGE HUMPHREYS
INTRODUCTION
On 4 December 2012, the applicant was granted a Partner (Subclass 801) (Spouse) visa. This visa was granted on the basis of the applicant’s married relationship to the sponsor, Mr Rodger Chung Yuen. The normal two year waiting period for the second stage of the application process was waived on the basis that there was a declared child of the relationship.
On 2 August 2016, the applicant was issued with a Notice of Intention to Consider Cancellation (“NOICC”) of her visa on the basis that the Department of Immigration (“the Department”) considered that the applicant had provided false or misleading answers in her Partner visa application about her married relationship with Mr Yuen.
On 18 August 2016, the applicant responded to the NOICC. The applicant conceded that her child was not fathered by her husband, but was conceived a week before her marriage to a Mr Luo, with whom she had been in a relationship previously. At the time of responding to the NOICC, the applicant’s relationship with Mr Yuen had ended and they were divorced. The applicant claimed to have recommenced her relationship with Mr Luo and had given birth to a second child to him.
A delegate of the Minister for Immigration (“the delegate”), cancelled the applicant’s visa on 26 August 2016. The applicant sought merits review at the Administrative Appeals Tribunal (“the Tribunal”). In a decision dated 8 August 2017, the Tribunal affirmed the delegate’s decision to cancel the applicant’s visa.
The applicant now seeks judicial review of the Tribunal’s decision.
THE ADMINISTRATIVE APPEALS TRIBUNAL DECISION
Given the framing of the grounds of judicial review, it is not necessary to summarise in detail the entire Tribunal decision. The particular paragraphs that are relevant, are contained at paragraphs 14 through to 16 of the Tribunal decision.
After setting out the relevant background, the Tribunal noted at paragraph 14 of its decision, which particular objection is taken to by the applicant, that either directly before, or just after her marriage on 6 July 2010, although she ostensibly began a committed relationship with Mr Yuen, in February 2010, the applicant conceived a child to her former partner, Mr Luo. The Tribunal noted that the applicant was untruthful about the child’s paternity to both Mr Yuen and the Department of Immigration (“the Department”). The Tribunal found that these actions undermined the applicant’s credibility.
Further, the applicant was granted a Permanent Spouse visa in December 2012, but claimed in her application for divorce to have left the marriage in April 2012, although she continued to hold herself out to be in a spousal relationship to the Department. The applicant then claimed that she lied in her divorce application, stating that she separated from her husband in April 2012, instead of March 2013 in order to circumvent the law and have the divorce finalised early. Even if the Tribunal accepted that the applicant left the marriage in March 2013, a mere three months after her visa was granted, the fact that the applicant states that she commenced a de facto relationship with Mr Luo less than a month after her separation, together with their relationship from June 2009 and the fact she conceived a child with him at the time of her marriage, are strong indicators that she did not want to commit to a long-term spousal relationship with Mr Yuen on 10 February 2010 as she stated in her application.
The Tribunal was unwilling to give the applicant the benefit of the doubt that the implausible sequence and timing of the events surrounding her relationship with Mr Luo is not evidence that she was not in a continuing and genuine relationship with Mr Yuen to the exclusion of all others. The Tribunal found that the applicant did not intend to maintain a lasting relationship with Mr Yuen and that she married him for the sole purpose of obtaining permanent residence in Australia.
GROUNDS OF JUDICIAL REVIEW
The grounds of judicial review relied upon are set out in a Further Amended Application filed with the Court on 27 July 2021. They are as follows verbatim:
Ground One
The second respondent’s decision under s 108(b) of the Migration Act 1958 that there was non-compliance by the visa holder (the applicant) of s 101(b) of the Migration Act 1958 in the way described in the notice issued under s 107 of the Act, was irrational, or illogical and/or not based on findings or inferences of fact supported on logical grounds.
Particulars
a) The Tribunal’s finding (at paragraph 14 of its reasons) that the applicant “did not want to commit to a long-term spousal relationship with Mr Yuen on 10 February 2010 was stated in her application” was irrational and illogical and/or not based on findings or inferences of fact supported on logical grounds.
b) The Tribunal’s finding (at paragraph 16), on the information before the Tribunal, that the application was not in “genuine and continuing relationship with Mr Yuen to the exclusion of all others at the time of the application or at all” was irrational, illogical and/or not based on findings or inferences of fact supported on logical grounds.
THE APPLICANT’S SUBMISSIONS
After setting out the relevant legislation, Counsel for the applicant referred to Minister for Immigration and Citizenship v Brar [2012] FCAFC 30 at [45] which held that any non-compliance considered by the first respondent, is restricted to the material described in the NOICC: (see also; Minister for Immigration and Multicultural Affairs v McDade [2001] FCA 457 at [34]).
The Tribunal was required to determine whether there was non-compliance by the applicant in the way described in the NOICC, that being, whether the answers given to questions 68, 71 and/or 73 of the application for her Partner visa were false. It was submitted that in order for there to be non-compliance, the Tribunal needed to determine at the time the answer was given (on 20 June 2011):
a)to Question 68: the applicant and Mr Yuen did not make the decision that they both intended to marry each other on 10 February 2010;
b)to Question 71: the applicant and Mr Yuen did not intend to maintain a lasting relationship as at 20 June 2011; and
c)to Question 73: the applicant entered into her relationship with Mr Yuen solely to gain permanent residence in Australia.
To Question 68, the applicant answered “10/2/2010”. To Questions 71, as to whether she and Mr Yuen intended to maintain a lasting relationship, the applicant answered “Yes”. The Tribunal stated at paragraph 14 of its decision that there were strong indicators that the applicant “did not want to commit to a long-term spousal relationship with Mr Yuen on 10 February 2010 as was stated in her application”. It was submitted that the Tribunal was answering the wrong question. The correct question was whether at that date, the applicant and Mr Yeun intended to marry each other. In fact they did marry on 6 July 2010.
The fact that the applicant had a prior relationship with the father of her children, or a subsequent relationship, less than a month after separation from Mr Yuen, was not a logical basis upon which to conclude that she did not intend to marry Mr Yuen as at 10 February 2010. It was submitted that the applicant’s future relationship with the father of her children, a month after her separation and the statements made in her family law application for divorce, are irrelevant to the correctness of the answer given to questions 68 and 71 as at the time of the application. The information before the Tribunal was that, as at 20 June 2011, the date the answers were given, the applicant and Mr Yuen had been married for almost a year, had a child that they believed to be theirs and that the applicant had not seen Mr Luo, the actual father of the child since before her marriage to Mr Yuen. It was only after the daughter’s first birthday, in April 2012, that Mr Yuen, suspected the child was not his and eventually sought divorce from the applicant.
The evidence before the Tribunal was that the applicant and Mr Yuen did not separate until approximately March 2013 or 20 months after the applicant answered question 71. It was submitted that the time she answered question 71, she was in an exclusive relationship with Mr Yuen and continued to be so, until separation.
Further, there was information before the Tribunal that the applicant’s mother, lived with the applicant and Mr Yuen in their home in November 2012. It was submitted that there was no information before the Tribunal to indicate that the applicant and Mr Yuen were not living together for the duration of their marriage. Accordingly, there was no basis to conclude that the applicant was in a relationship with Mr Luo during the time that she was married to Mr Yuen and there is no basis for the Tribunal to conclude that the applicant was never in an exclusive spousal relationship with Mr Yuen.
It was submitted that the correct question the Tribunal should have asked, was whether, as at 20 June 2011, the applicant and Mr Yuen intended to maintain a lasting relationship. The applicant’s evidence was that marital discord only occurred after her daughter’s first birthday. There is nothing to suggest that the relationship was either a sham or opportunistic for the sole purpose to obtain permanent residence in Australia. It was not the applicant who sought to end her marriage. This was initiated by Mr Yuen.
There is no probative material on which to conclude, as the Tribunal did, that the applicant was untruthful about the paternity of her child to “both to Mr Yuen and the Department”. Notwithstanding that the applicant’s daughter was conceived around the same time as she married Mr Yuen, it is evident that she had a sexual relationship with both men during that period. Without the paternity test taken in August 2013, procured on the initiative of Mr Luo, in support of his partner visa application, there is no evidence that it was not unreasonable for the applicant to assume or hope the father of the child was in fact Mr Yuen.
It was submitted that it was not open for the Tribunal to simply disbelieve the applicant’s evidence on the basis of her “credibility” without any evidence that contradicted the applicant’s account, or any basis to indicate that the applicant withheld information. The fact that the applicant was directed by solicitors, in her divorce proceedings commenced by her husband, to backdate their separation, is not a logical basis upon which to disbelieve the applicant’s entire evidence as to her genuineness in a relationship with her husband. The applicant’s evidence was that her sexual encounter with Mr Luo was unintended, that she regretted it, and did not wish to harm her relationship with Mr Yuen.
With respect to question 73 the question was “did you enter into this relationship with your fiancé or partner solely to gain permanent residence in Australia”, the applicant answered “No”.
There is no basis upon which to conclude that the applicant and Mr Yuen entered into a sham marriage so as to, over one year later, apply for the applicant’s permanent residency. The Tribunal’s finding at paragraph 16 of its decision that, at the time of making the application in 20 June 2011, the applicant was not in a relationship with Mr Yuen to the exclusion of all others is wholly without foundation. There is no probative material to support the finding that the applicant had any relationship with Mr Luo while married to Mr Yuen.
It was submitted that the Tribunal’s reasoning at paragraph 14 of its decision, turns on the Tribunal’s essential premise that because the applicant was in a relationship with Mr Luo, both before and after her relationship with Mr Yuen, that her answers to questions 68, 71 and 73 could not be correct.
THE FIRST RESPONDENT’S SUBMISSIONS
Counsel for the first respondent notes that the particulars referred to two specific findings made by the Tribunal. The first being the finding at paragraph 14 of the Tribunal decision that the applicant did not want to commit to a long-term spousal relationship with the sponsor on 10 February 2010 as stated in her application. Second, the finding at paragraph 16 of the Tribunal decision that the applicant was not in a genuine and continuing relationship with the sponsor to the exclusion of all others at the time of the application. It was submitted that the applicant’s submissions go well beyond the two pleaded particulars above and essentially take issue with the entirety of the Tribunal’s findings.
In deciding whether to exercise its discretion to cancel a visa under s 109 of the Migration Act 1958 (Cth) (“the Act”), the Tribunal was required to: first, decide under s 100 of the Act that there was non-compliance by the applicant, second, the Tribunal was required to consider any response to the NOICC provided to the applicant in a way required under s 107(1)(b) of the Act and third, have regard to any prescribed circumstances.
The applicant’s complaint in ground one takes issue with the first matter, namely the Tribunal’s finding that there was non-compliance by the applicant in the way described in the notice. However these complaints comprise a narrow reading of the Tribunal’s reasoning, and overlooked the Tribunal’s cogent credibility findings and do not establish the “extreme illogicality” that is required, to establish jurisdictional error: (see; Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at [148]).
The applicant must demonstrate extreme illogicality or irrationality in order to be granted the relief sought: (see; DAO v Minister for Immigration and Border Protection (2018) 258 FCR 175 at [30]). Illogicality or irrationality requires more than emphatic disagreement with the reasoning or findings: (see; Minister for Immigration and Citizenship vSZMDS (2010) 240 CLR 611 at [124]).
In relation to particular (a), the Tribunal’s finding that the applicant did not want to commit to a long-term spousal relationship with the sponsor on 10 February 2010 followed a logical sequence as set out in paragraph 14 of the decision. First the applicant conceived a child with Mr Luo, born 4 April 2011, but was untruthful about the child’s paternity to the sponsor and the Department. Second, the applicant was granted the Partner visa on 4 December 2012, but had claimed in an application for divorce to have left the marriage in April 2012. However, the applicant continued to hold herself out to be in a spousal relationship to the Department. Third, the applicant claimed that she lied in a divorce application, stating that she had separated from a husband in April 2012 instead of March 2013 to “circumvent the law and have the divorce finalised early”. Fourth, even if it was accepted that the applicant left the marriage in March 2013, this was a mere three months after her Partner visa was granted. The applicant was in a de facto relationship with Mr Luo less than a month after her separation. They were together from June 2009 and conceived a child at the time of the marriage of the applicant to the sponsor.
It was submitted that it was entirely open and logical for the Tribunal to consider that the applicant did not want to commit to a long-term spousal relationship with the sponsor on 10 February 2010. The applicant argues that the Tribunal asked the wrong question, because the correct question was whether as at 10 February 2010 the applicant intended to marry the sponsor and that accordingly, there was no basis to indicate that they did not intend to marry, because in fact they did marry on 6 July 2010.
The first respondent concedes that in so far as the applicant sought to satisfy item (b) of question 68 in Form 47SP, that her answer was correct in that the parties did intend to marry each other. However, this error was not jurisdictional because the Tribunal’s findings at paragraphs 13 to 16 of its decision, which address the answers given to question 71 and 73, were plainly open on the evidence and provided the Tribunal with a separate independent basis for its decision that there was non-compliance by the visa holder in the way described in the notice under s 108 (b) of the Act and in the exercise of its discretion, under s 109(1) of the Act.
At question 71, the applicant confirmed that she and sponsor intended to maintain a lasting relationship, however, the Tribunal was not satisfied that this was correct. This factual finding supported the Tribunal’s adverse credit findings in the reasoning at paragraphs 14 to 16 of its decision, including the “implausible sequence and timing of the events surrounding her relationship with Mr Luo”. Second, the Tribunal found at paragraph 16 of its decision, the applicant married the sponsor for the sole purpose of obtaining permanent residence in Australia, which was contrary to the answer given by the applicant at question 73.
It was submitted that it is not wholly irrational to have regard to events that occurred at a “future time” when assessing whether the applicant’s answers were correct. The Tribunal plainly considered the overall sequence of events were relevant to the applicant’s intention for the relationship at the time she completed her Partner visa application. The Tribunal was unwilling to give the applicant the benefit of the doubt, given her overall lack of credibility and the implausible sequence and timing of the events.
The applicant argues that the evidence before the Tribunal was that the parties did not separate until 20 months after the applicant answered question 71, indicates that at the time she answered the question, she was in an “exclusive relationship” with the sponsor. However, that was not the question posed by question 71. The question was, whether the applicant and the sponsor intended to maintain a lasting relationship. The Tribunal was not satisfied they did and therefore, the answer to question 71 was incorrect. The submission by the applicant that the finding was not open because the “pattern of the relationship” did not suggest it was a “sham opportunistic marriage” such that the applicant did not intend to maintain a lasting relationship goes no further than disputing the Tribunal’s a factual findings and invites impermissible merits review. Even on the applicant’s version of events, the claimed relationship lasted some 18 months from the date of the Partner visa application was lodged. It was entirely open to the Tribunal to find that there was no intention to maintain a lasting relationship.
Contrary to the applicant’s contention, the Tribunal did not make a finding the applicant was never in an exclusive spousal relationship with the sponsor. Rather, the Tribunal at paragraph 15 of its decision, considered that the applicant had deliberately given incorrect answers in her Partner visa application because she knew that truthful answers would be contrary to her application.
The applicant argues that there was “no probative material” that the sponsor for the applicant was untruthful about the paternity of the child to the sponsor and the Department. Again, this submission invites impermissible merits review. The Tribunal expressly considered the applicant’s Statutory Declaration and her evidence that she had “hoped” that the child was the sponsors, but evidently did not accept it. It was for the applicant to provide her evidence and arguments in sufficient detail to enable the Tribunal to reach the requisite state of satisfaction. The Tribunal was not required to make the applicant’s case for her and was under no obligation to uncritically accept any and all allegations made by her.
Contrary to the applicant’s submissions, the issue of the applicant’s credibility was plainly relevant to the circumstances of this case that the Tribunal determined relation of whether there was non-compliance with s 101 of the Act. The Tribunal’s finding that the applicant was not in a genuine and continuing relationship with the sponsor to the exclusion of all others at the time of the application, or at all, was reasonably open on the available evidence. The Tribunal was entitled to rely upon the applicant’s lack of credibility and was unwilling to give her the benefit of the doubt that the “implausible” sequence and timing of events surrounding her relationship with the sponsor were indicative of a genuine and continuing relationship.
CONSIDERATION
The applicant claims that as at 20 June 2011, being the time she answered the questions 68, 71 and 73 on the visa application, she did so truthfully, on the basis that she intended to enter into an a long term, and continuing relationship to the exclusion of all others. This is notwithstanding that shortly before she married the sponsor, Mr Yeun, she had engaged in sexual relations with her alleged previous boyfriend, Mr Luo and in fact had become pregnant to him and had a daughter to him.
The applicant claims that she answered the questions truthfully, notwithstanding being divorced from Mr Yuen 3 months after being granted her permanent visa and lying in her divorce application by backdating the date she claims she separated from the sponsor. The applicant claims that she answered the questions truthfully notwithstanding that after a period of one month from her divorce she moved back in with Mr Lou and has born him a second child.
Counsel for the applicant during oral submissions conceded that it was not inappropriate for the Tribunal to take into account the applicant’s subsequent conduct to the visa application in order to ascertain whether or not her answers to the questions in the visa application were truthful. While the single ground of appeal centres on whether or not the Tribunal’s conclusion in relation to whether or not the applicant answered the questions truthfully was irrational and illogical or not based on findings or inferences of fact support of the logical grounds, Counsel for the first respondent submitted that in fact the attack on the Tribunal decision was much more general, and invited the Court to undertake impermissible merits review.
The power to cancel a visa under s 109 of the Act, is preconditioned by the existence of a decision under s 108 of the Act, that has been lawfully made. An error in the decision under
s 108 of the Act, goes to the jurisdiction of the exercise of the cancellation power: (see; DFS17 v Minister for immigration and Border Protection [2019] FCA 642 (“DFS17”) per Charlesworth J at [32]). In the following paragraphs at [33] to [36] of DFS17, Charlesworth J summarised the relevant common law in relation to legal unreasonableness citing Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 (“Stretton”) at [11], Minister for Immigration and Border Protection v Singh (2014 231 FCR 437 (“Singh”) at [22] and Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 (“SZVFW”) at [84]. They include that the decision being impugned, must be arbitrary, capricious or lacking in common sense in regard to the term scope and purpose of the statutory power: (see; Stretton); that whilst a decision on the ground of legal unreasonableness “will be invariably fact dependent, the court cannot substitute its own judgement for that of the decision-maker: (see; Singh); and that it will be a rare case that the exercise of discretionary powers unreasonable where the reasons demonstrated justification for the exercise of that power: (see; SZVFW).
The Court does not accept the applicant’s contention that the Tribunal asked itself the wrong question being what was the intent of the applicant at the time she answered the questions. Such an approach limits the Tribunal to a particular point of time and does not properly allow it to consider all of the material which is available to it by way of evidence to ascertain what in fact the applicant’s true intention was at that time. The Tribunal was properly entitled to have regard to what happened after the applicant made the visa application which is material and goes to the truthfulness of her answers.
The Court is of the view that the factual findings of the Tribunal were not irrational or illogical such as to meet the required standard for jurisdictional error and that they were based on findings of or inferences of fact supported on logical grounds. The Tribunal was properly entitled to consider the credit of the applicant based on her admitted untruthfulness in her divorce application is being evidence which went to the issue of the truthfulness of her answers to the visa application. The Court is satisfied that the history of the matter, in terms of the applicant’s relationship with Mr Luo both before and after her marriage to the sponsor, was material that could properly be taken into account in relation to the truthfulness of her answers that were the subject of the NOICC.
The Court is satisfied that it was open to the Tribunal, based on an assessment of the entirety of the evidence, including the issues of the applicant’s credit, for it to find that the applicant did not answer the questions and the visa application truthfully. The Tribunal finding that the “implausible” sequence and timing of the events surrounding her relationship with the sponsor was not supportive of a genuine and continuing relationship, was reasonably open to it on the material before it and for the reasons it gave.
Having arrived at the conclusion that the applicant was not truthful in her answers to the material contained within the NOICC, the Tribunal was entitled to exercise its discretion to cancel the applicant’s visa pursuant to s109 of the Act.
The applicant’s grounds of judicial review reveal no error.
CONCLUSION
Accordingly, the application is dismissed
I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys. Associate:
Dated: 18 August 2021
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