Chau v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 595
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Chau v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 595
File number(s): MLG 3318 of 2018 Judgment of: JUDGE TAGLIERI Date of judgment: 7 July 2023 Catchwords: MIGRATION – spouse visa application – application for judicial review – whether the Tribunal gave adequate reasons – jurisdictional error not established – application for review dismissed Legislation: Administrative Appeals Tribunal Act 1975 (Cth) s 43(2B)
Migration Act 1958 (Cth) pt 7, ss 5F, 5F(2), 5F(2)(b), 5F(2)(c), 65, 368(1), 368(1)(b), 476
Migration Regulations 1994 (Cth) regs 1.15A(1), 1.15A(3) 1.15A(3)(b), 1.15A(3)(b)(i), sch 2 cl820.211(2)(a)
Cases cited: Collector of Customs v Pressure Tankers Pozzolanic (1993) 43 FCR 280
HBMH v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 275
He v Minister for Immigration and Border Protection [2017] FCAFC 206
Mohammed v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCCA 1319
Minister for Immigration and Border Protection v SZSRS (2014) 309 ALR 67
Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594
Solimon v University of Technology Sydney [2012] FCAFC 146
Wu Shan Liang v Minister for Immigration and Ethnic Affairs [1995] FCA 1327
Xu v Minister for Immigration & Multicultural Affairs (1999) 95 FCR 425
Division: Division 2 General Federal Law Number of paragraphs: 42 Date of hearing: 12 May 2023 Place: Melbournet Counsel for the Applicant: Ms Gang Solicitor for the Applicant: Visatec Legal Counsel for the First Respondent: Mr Daley, Mills Oakley ORDERS
MLG 3318 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: THANH TAM CHAU
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE TAGLIERI
DATE OF ORDER:
7 July 2023
THE COURT ORDERS THAT:
1.The amended application filed 21 April 2023 is dismissed.
2.The applicant pay the first respondent’s costs in the fixed sum of $5,400.00.
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 Taglieri
By amended application for review filed 21 April 2023, the Applicant seeks review by the Court of a decision of the Administrative Appeals Tribunal (“the Tribunal”) dated 8 October 2018. The application enlivens this Court’s jurisdiction pursuant to s 476 of the Migration Act 1958 (Cth) (“the Act”).
BACKGROUND
The Applicant is a non-citizen who applied for a Partner (Temporary) (Class UK) visa under s 65 of the Act on 12 December 2014 (“the spouse visa”), which was refused by a delegate of the First Respondent on 2 December 2015.
The Tribunal initially heard an application for review of the delegate’s decision on 22 November 2016 and remitted the application to the First Respondent. The spouse visa application was subsequently again refused, and following hearings on 30 August 2018 and 3 September 2018 the Tribunal affirmed the decision to refuse the spouse visa.
The Amended Application to the Court was heard on 12 May 2023 at which time both parties were represented by Counsel.
BASIS OF TRIBUNAL DECISION
The Tribunal’s affirmation of the delegate’s decision was on the basis that the Applicant was not in a genuine spousal relationship with the sponsor at the time of the application,[1] as defined in s 5F of the Act with reference to reg 1.15A of the Migration Regulations 1994 (Cth) (“the Regulations”).
[1] Tribunal reasons at [80] to [81].
In arriving at the above conclusion, the Tribunal was satisfied that the Applicant and sponsor were validly married in Albion, Victoria on 17 November 2014, but was not satisfied that other mandatory statutory requirements for eligibility for a spouse visa were met.[2]
[2] In particular s 5F(2)(b) and (c) of the Act as called in by cl 820.211(2)(a) of Schedule 2 the Regulations.
The Tribunal made significant adverse credit findings when evaluating the evidence before it about the mandatory statutory requirements in s 5F(2) of the Act,[3] and this plainly influenced its findings about the various mandatory statutory requirements.
[3] Tribunal reasons at [57] and [45] to [55].
In summary, the Tribunal found that:
(a)The financial aspects of the relationship indicate that the Applicant was not in a genuine and continuing relationship with the sponsor at the time of application;[4]
(b)The evidence of the nature of the household on balance indicates the Applicant was not in a genuine relationship with the sponsor at the time of application;[5]
(c)The evidence about the social aspects of the relationship indicates that the Applicant and sponsor know each other, participated in some activities together, and opinion of others about the relationship carried little weight. Despite the latter, on balance the relationship was genuine and continuing at the time of application;[6] and
(d)The Applicant and sponsor were in a committed relationship for less than a month before they married and since that time have lived in the same premises for three and a half years and provide some support for each other as they live in the same premises.[7] However, while the sponsor was pregnant, the Tribunal did not readily accept that the Applicant was the child’s father.[8]
[4] Tribunal reasons at [60], based on factual findings at [58] and [59].
[5] Tribunal reasons at [66], based on facts found at [61], [62], [63], [64] and [65].
[6] Tribunal reasons at [68] to [71].
[7] Tribunal reasons at [72] to [76].
[8] Tribunal reasons at [77].
Ultimately, the Tribunal rejected that the Applicant and the sponsor were in a long term committed relationship, as the balance of considerations fell contrary to grant of the spouse visa.[9]
[9] Tribunal reasons at [78] and [79].
GROUNDS OF REVIEW
The single ground for review is ultimately based on an asserted constructive failure by the Tribunal to exercise its jurisdiction or function on review pursuant to Part 7 of the Act. However, the assertion relies on three alternate claims relating to the quality of the Tribunal’s reasons.
The Applicant emphasised that he did not take issue with the factual findings of the Tribunal, and submitted that the jurisdictional error lay in:
(a)Failure to disclose its actual path of reasoning in weighing up evidence for or against in respect of two of the mandatory considerations in reg 1.15A(3) of the Regulations, which is to be applied when deciding on the existence of the jurisdictional fact provided for by s 5F(2)(b) of the Act;
(b)Non-compliance with the duty in s 43(2B) of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”) to give reasons by a failure to state the basis upon which it made crucial findings about the two considerations and jurisdictional fact referred to in [11(a)]; and
(c)A failure to state the basis upon which it made findings about the two considerations and jurisdictional fact referred to in [11(a)], meaning that the Applicant is unable to see how justice has been done and cannot determine if there is error of law.
COMPETING CONTENTIONS
The Applicant’s formulation of the amended ground of review hinges on the duty to give reasons in s 43(2B) of the AAT Act. The First Respondent submits that the amendment to the ground of review is out of time and no explanation is offered for the delay and breach of the order of the Court made 4 August 2020 regarding filing of any amended application.
Despite the submission above, the First Respondent does not state that the amendment is opposed and has not identified any prejudice if the amendment is allowed. It is evident that, despite the delay in amending, the First Respondent had been able to formulate its response fully and make its case. In view of these matters, the amendment to the application for review is allowed and the Court will determine the review on the basis of the single ground as formulated and identified above.
Duty to Give Reasons
The Applicant maintains that the principles and authorities cited in its written submissions filed 21 April 2023 concerning s 43B(2B) of the AAT Act are applicable and identifies what Katzmann J observed in HBMH v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 275 (“HBMH”) at [64].[10]
[10] Applicant’s written submissions filed 21 April 2023 [16] to [21].
The First Respondent submits that the duty to give reasons in migration reviews relating to spouse visas is expressly provided for in s 368(1)(b) of the Act. Further, citing Xu v Minister for Immigration & Multicultural Affairs (1999) 95 FCR 425 (“Xu”) at [17], it is submitted that, generally, a failure to comply with s 368(1) of the Act is not a jurisdictional error.
In HBMH, the Federal Court was considering a protection visa application in respect of which the duty to give reasons is governed by s 430 of the Migration Act.
While I accept that the First Respondent is correct in maintaining that s 43(2B) of the AAT Act and s 430 of the Act do not apply to the review the Tribunal undertook in this matter, the statutory duty to give reasons is expressed identically in s 368(1) of the Act.
The real issue then is whether the decision of the Tribunal complied with the statutory requirements in s 368(1)(b) of the Act and all the authorities that both parties have relied upon are of some assistance in addressing this issue.
Were the reasons inadequate?
The Applicant’s complaint is confined to a purported failure by the Tribunal to meet its obligations in relation to setting out its findings about three material facts and refers to the evidence upon which the findings were based.[11]
[11] That is, s 368(1)(c) and (d) of the Act.
Finding that day-to-day household expenses were not shared
Counsel for the Applicant submitted that the Tribunal’s reasons set out a long list of findings, but failed to disclose the pathway to how it concluded that the financial aspects of the relationship indicated the Applicant and the sponsor were not in a genuine and continuing relationship at the time of application.[12] In particular, when referring to the evidence and findings made, it did not say which factors weighed positively or were neutral.
[12] Tribunal reasons at [58] to [60].
The Tribunal’s reasons about the financial aspects of the relationship are imperfectly expressed because they are discursive and collectively refer to absence of evidence in some aspects and unfavourable findings about particular financial matters such as the finding that the Applicant and the sponsor did not use the joint account.[13]
[13] Tribunal reasons at [58] and [59].
Nevertheless, when the Tribunal referred to the absence of evidence, it is plain in the context of the reasons given overall that it assessed that absence of particular evidence weighed negatively on its conclusion that the financial aspects of the relationship indicated that the Applicant and the sponsor were not in a genuine and continuing relationship. It can easily be inferred[14] that this is so because the presence of such evidence would ordinarily be expected in a genuine spousal relationship.
[14] As discussed in Xu.
Accordingly, I accept the First Respondent’s written submissions filed 5 May2023 at [41] and [42], which were repeated orally at the hearing. I also accept that the reasons for judgment of the Full Court of the Federal Court in He v Minister for Immigration and Border Protection [2017] FCAFC 206 at [77] to [87] remain highly instructive in relation to whether the Tribunal made the error asserted.
Guided by the principles expressed by the Court, I reject the Applicant’s submission that he is unable to discern what evidence the Tribunal relied on to make its relevant factual findings and then arrive at the conclusion that the financial aspects of the relationship did not indicate a genuine and continuing relationship. It is sufficiently clear that the Tribunal:
(a)Relied on the absence of evidence about joint assets and liabilities and weighed this negatively;
(b)Rejected the evidence given about how money was saved and used because it was not credible. This weighed negatively, and the Tribunal went so far as to find that the joint bank account was established and conspired. The latter is a finding open to the Tribunal as the merit decision maker;[15] and
(c)Found that there was absence of evidence of financial support of the Applicant by the sponsor, and that he received financial support from his mother.
[15] Mohammed v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCCA 1319 at [25].
Finding about nature of the household
The Applicant contends that the Tribunal came to many findings of fact relevant to the nature of the household of the Applicant and sponsor, but failed to reveal how the factual findings were weighed in arriving at the conclusion that on balance the nature of the household indicates that the Applicant and the sponsor were not in a genuine and continuing relationship at the time of application.
Counsel for the Applicant focussed on the Tribunal’s reasons at [61] to [66], submitting that they failed to reveal how the various findings were weighed and what combination of findings led it to arrive at the conclusion it reached at [66]. The factual findings were described as a “laundry list” given without indication upon which facts the Tribunal ultimately relied in reaching its decision.
I reject the Applicant’s submissions. It is self-evident from the Tribunal’s reasons at [62] to [64][16] that the Tribunal approached the issue of the nature of the parties’ household in two parts, June 2012 until marriage in December 2014 and then afterwards.
[16] Also the Tribunal’s reasons at [24] to [29].
The reasons show analysis of the evidence given by the various family members along with the Applicant and sponsor, and it is clear that the Tribunal found it contradictory or not credible as to whether they lived together prior to marriage and so did not accept that they did. This weighed negatively in arriving at the conclusion at [66].
In relation to the period after marriage, the Tribunal found that they Applicant and sponsor lived in the same household, but found that the Applicant’s role in the household was to care for the sponsor’s mother, identifying the evidence it relied upon to arrive at this finding.[17]
[17] Tribunal’s reasons at [64] and [65].
The Tribunal also explained that it rejected the evidence of the brother about the Applicant and the sponsor looking after each other, because it was in effect a mere assertion and the brother had not given evidence at the hearing to test the assertion. In my view, it is sufficiently clear that this weighed against being satisfied that the Applicant’s role in the household was anything other than as a carer for the sponsor’s mother.[18]
[18] Tribunal’s reasons at [65].
To illustrate the strength of the asserted error, the Applicant referred to the finding of the absence of children in the Tribunal’s reasons at [61]. He says that it is not possible to discern if this weighed negatively or neutrally in arriving at the conclusion about the nature of the household under reg 1.15A(3)(b) of the Regulations.
The Respondent in reply submitted that it can be inferred that the absence of children weighed neither in favour nor against a finding about the Applicant and the sponsor being in a genuine and continuing relationship.[19] Put in a similar way, I consider that the Tribunal’s reasons at [61] demonstrate that it actively considered, as it must, a mandatory consideration under the Regulations,[20] but it was not a material consideration in the circumstances of the Applicant. Accordingly, I reject the submission of the Applicant in this regard.[21]
[19] First Respondent’s written submissions filed 5 May 2023 at [44].
[20] Regulation 1.15A(3)(b)(i) of the Regulations.
[21] Applicant’s written submissions filed 21 April 2023 at [29].
Was there a failure to give reasons in respect s 5F(2)(b)?
The Applicant asserts that the Tribunal concluded that the Applicant and the sponsor did not have a mutual commitment to a shared life as husband and wife, but gave no reasons for the finding made at [81] of its written decision.[22]
[22] Applicant’s written submissions filed 21 April 2023 a [31].
The First Respondent submits that the Tribunal made findings and gave reasons for all the material considerations in reg 1.15A(3) of the Regulations, and on those findings was entitled to find that the Applicant and the sponsor were not in a married relationship as defined by s 5F(2)(b) and (c) of the Act.
I agree that the Tribunal did not expressly or separately address the requirement of s 5F(2)(c) of the Act, but it is in my view sufficiently plain from the structure of the reasons that it separately and expressly considered and made its jurisdictional finding about s 5F(2)(a) of the Act at in its reasons at [10]. It then collectively considered all other considerations in s 5F of the Act under a heading “Are all the other requirements for a spousal relationship met”.
In reasoning as it did, I consider that the Tribunal took as relevant to s 5F(2)(b) to (d) of the Act. All factual findings that followed under the heading were determined in the light of reg 1.15A(3) of the Regulations. In taking this approach, the Tribunal, perhaps in a slightly disorganised way, addressed the mandatory statutory requirements, but did not fail to give adequate reasons for s 5F(b) of the Act contrary to what the Applicant asserts.
The Applicant submits that it is implausible that the reasons for the jurisdictional fact in s 5F(2)(b) of the Act would be exactly the same as those in respect of s 5F(2)(c), for which reasons were given. However, in my view the submission lacks merit for two reasons:
(a)The considerations in reg 1.15A(3) of the Regulations apply to determining all statutory requirements in s 5F(2) of the Act, not just some of them. This is because of the plain and ordinary reading of reg 1.15A(1) of the Regulations. Logically, then evidence about all the non-exhaustive considerations in reg 1.15A(3) of the Regulations may inform the determination about any part of s 5F(2) of the Act; and
(b)The ordinary meanings of “mutual commitment to a shared life”, encompasses notions of “genuineness and continuity” of a relationship, although they do not mean the same.
It is sufficiently clear that the Tribunal’s discussion of the evidence, findings and reasons variously set out at from [11] of its reasons were addressing material considerations which the member identified as being materially relevant. Accordingly, I agree that the Applicant’s contention is not compatible with many established principles of relevance to the adequacy of the Tribunal’s reasons, being:
(a)A failure of the Tribunal to give proper reasons does not necessarily constitute jurisdictional error;[23]
(b)The Tribunal reasons ought not be “construed minutely and finely with an eye keenly attuned to the perception of error”;[24]
(c)The Court in its assessment must not focus on the “looseness in the language” or the “unhappy phrasing” used by the Tribunal;[25] and
(d)Not all evidence needs to be referred to by the Tribunal in its reasons and the fact that some evidence may not have been expressly noted does not mean it was not considered.[26]
[23] Solimon v University of Technology Sydney [2012] FCAFC 146.
[24] Collector of Customs v Pressure Tankers Pozzolanic [1993] FCA 456; (1993) 43 FCR 280, cited with approval in Wu Shan Liang v Minister for Immigration and Ethnic Affairs [1995] FCA 1327 at [30].
[25] Collector of Customs v Pressure Tankers Pozzolanic [1993] FCA 456; (1993) 43 FCR 280, cited with approval in Wu Shan Liang v Minister for Immigration and Ethnic Affairs [1995] FCA 1327 at [30].
[26] Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594 at 605-606 [31]; [2011] HCA 1. See also Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; (2014) 309 ALR 67.
MATERIALITY
As no jurisdictional error has been established, there is no occasion or need to address whether a jurisdictional error was material such that the application should be allowed.
In written and oral submissions, Counsel for the Applicant submitted in a sweeping manner that the Tribunal’s reasons were inadequate because justice could not be seen to be done from those reasons. However, Counsel was unable to direct the Court to specific authority and accepted that the submission was novel.
Given the submission made, the Court is not persuaded that jurisdictional error is established in the manner contended by the Applicant and summarised at [40] of these reasons. Further, in my view justice can be seen to be done when the reasons are read in a holistic manner. The Tribunal was not satisfied that the evidence satisfied the mandatory statutory requirements in s 5F of the Act and, for the reasons set out elsewhere, explained its reasoning adequately.
CONCLUSION
For the reasons given, the amended ground of review does not succeed and the application is dismissed.
I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Taglieri. Associate:
Dated: 7 July 2023
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