Chen v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 1057
•21 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Chen v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1057
File number(s): SYG 1978 of 2019 Judgment of: JUDGE D HUMPHREYS Date of judgment: 21 November 2023 Catchwords: MIGRATION – Administrative Appeals Tribunal - Partner (temporary) (subclass 820) visa – Public Interest Consideration 4020 – whether Tribunal erred in considering evidence – credibility of applicant – false and misleading information – inconsistency of evidence provided by the applicant - independent expert appointed – psychiatrist report provided to the Department Legislation: Migration Act 1958 (Cth) ss 5F, 359
Migration Regulations 1994 (Cth) 1.15A
Cases cited: Abebe v The Commonwealth (1999) 197 CLR 510
ABT17 v Minister for Immigration and Border Protection [2020] HCA 34
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
Fox v Percy [2003] HCA 22
Minister for Immigration v CRY16 (2017) 253 FCR 475
Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration, Citizenship and Migrant Services v Gupta [2022] FCAFC 51
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Selvadurai v Minister for Immigration and Ethnic Affairs (1992) 34 ALD 347
WAEE v Minister for Immigration (2003) 256 FCR 593
Division: Division 2 General Federal Law Number of paragraphs: 54 Date of last submission/s: 16 November 2023 Date of hearing: 16 November 2023 Place: Parramatta Counsel for the Applicant: Mr Carp Solicitor for the Applicant: Proactive Legal Counsel for the Respondent: Mr Johnson Solicitor for the Respondent: Mills Oakley ORDERS
SYG 1978 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CEN CHEN
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
Respondent
ORDER MADE BY:
JUDGE D HUMPHREYS
DATE OF ORDER:
21 NOVEMBER 2023
THE COURT ORDERS THAT:
1.The name of the First Respondent be changed to “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.The application be dismissed.
3.Costs are reserved, noting that the First Respondent has not appeared at Judgment Delivery.
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 D HUMPHREYS
INTRODUCTION
The applicant is a Chinese citizen, born January 1988. On 18 June 2013, the applicant applied for a Partner (Class BS) visa based on his marriage to Ms Ling Yang on 28 July 2011. On 1 November 2013, the applicant was granted a Partner (Temporary) (Class UK) (subclass 820) visa.
The marriage did not last. On 30 June 2015, the Department wrote to Ms Yang acknowledging the withdrawal of her sponsorship application for the applicant.
The same day, the applicant was invited to comment on information that his relationship with Ms Yang had ceased.
On 3 September 2015, the Department received email correspondence from the applicant’s representative submitting that the applicant met the criteria for a subclass 801 (Permanent) visa as the applicant had been the victim of “non-judicial family violence”. Further information was sought and provided by the applicant.
On 26 February 2016, the Department wrote to the applicant advising him that the claim of family violence had been referred to an Independent Expert. The report provided to the Department by the Independent Expert, on 1 June 2016, concluded that the applicant was not the victim of family violence. The Department sought the applicant’s comments on this finding. The applicant seemingly did not respond to this invitation to comment.
On 7 July 2016, a delegate of the Minister refused the applicant his visa. The applicant sought merits review at the Administrative Appeals Tribunal (“the Tribunal”). On 18 December 2017, the Tribunal remitted the matter back to the Department for reconsideration with a direction that the applicant met cl 801.221(6)(b) and (c) of Schedule 2 of the Migration Regulations 1994 (Cth) (“the Regulations”).
On 6 August 2018, the Department wrote to the applicant inviting him to comment or respond to information that suggested he might have provided false or misleading information to the Department in relation to his partner visa application, and accordingly he might not meet the requirements of Public Interest Criterion 4020 in Schedule 4 to the Regulations. The potentially false or misleading information arose in respect to various inconsistencies in the information the applicant had provided to the Department over time about his relationship with Ms Yang.
The applicant’s representative provided a response on 4 October 2018. This included a report prepared by a Psychiatrist, Dr Zeng Zhang. Dr Zhang opined in the report that:
…based on available information that the inconsistent date on which [the applicant] met his ex-wife, that [the applicant] provided to the independent assessor, was due to anxiety, and genuine memory error rather than an act of dishonesty.
On 2 November 2018, a different delegate of the Minister refused to grant the applicant a Partner (subclass 801) visa on the basis that there was evidence before the Minister that the applicant had provided to the Department false or misleading information in relation to the visa application.
The applicant again sought merits review at the Tribunal. On 1 July 2019, the Tribunal affirmed the decision to refuse the applicant his visa. The applicant now seeks judicial review of the Tribunal’s decision.
For the reasons set out below, the application has no merit and must be dismissed.
The Tribunal Decision
Paragraphs 1 through to 8 of the decision record sets out the relevant background together with the relevant law and legislation. This includes Public Interest Criterion 4020 (“PIC 4020”), which requires that there is no evidence of the applicant has given, or caused to be given, to the Minister or other relevant body, a bogus document or information that is false and misleading in a material particular.
At paragraph 9 onwards, the Tribunal considers whether or not the applicant has provided a bogus document or information that is false and misleading.
At paragraph 10, the Tribunal notes the primary decision record indicates in his application submitted in June 2013, the applicant stated that he and his sponsor met in February 2010, and they were introduced by a friend of the applicant’s mother. The applicant and Ms Yang moved in together in January 2011 and were married in July 2011.
At paragraph 11, the Tribunal notes that when the applicant was interviewed by an Independent Expert, in relation to his claims of having suffered domestic violence, he advised the Independent Expert he had met the sponsor in March 2011 through a newspaper dating advertisement and they were married in July 2011. When questioned about this inconsistency in dates by the Independent Expert, the applicant stated that the dates provided to the Department were incorrect but was unable to explain why.
Paragraph 12 notes the delegate wrote to the applicant seeking comment on the above information. His response, through his representative, contended that PIC 4020 did not apply to Independent Experts and that he did not “provide” misleading information to the Department. The applicant also provided various documents concerning his relationship with the sponsor, including a statement from a real estate agent company, registration documents and a number of declarations stating the relationship started in 2010.
At paragraph 15, the Tribunal records the applicant provided a brief psychiatrist’s report from Dr Zhang which stated that it “is more likely than not” that the applicant provided erratic information to the Independent Expert on the timing of the meeting of the sponsor. In Dr Zhang’s opinion, the inconsistencies in dates given by the applicant were caused by the applicant’s anxiety and a genuine memory error rather than an act of dishonesty.
At paragraph 16, the Tribunal rejects this evidence. The Tribunal found first that the report failed to adequately identify the basis for its findings and conclusions. If the information about the applicant’s apparent lack of concentration and memory error causing the inconsistencies in evidence were provided by the applicant, the Tribunal was of the view that such information would be self-serving and unreliable. Second, the report did not indicate that a thorough examination of the applicant’s capacity was completed. While there was a reference to a “mental state examination” this failed to identify what the examination entailed or what medical findings were made as a result of it.
Third, the assessment that the applicant “appeared shy, anxious and reserved” did not necessarily support the conclusion that the applicant had a poor memory and was incapable of remembering information about his relationship. The Tribunal concluded, put simply, there was insufficient evidence in the report to support the conclusions. Accordingly, the Tribunal considered the report inadequate and gave it no weight.
Paragraph 18 records the explanation given by the applicant at the Tribunal hearing as to why he gave false information. The applicant stated that he memorised the date of March 2011 because that was the date when his ex-wife divorced her husband, but because he was too nervous, he said it was the date when he first met his wife. The Tribunal did not accept these explanations and set out five reasons in paragraphs 19 through to 23 as to why it was not satisfied by the explanation given by the applicant regarding the inconsistent evidence as to when he first met his wife.
At paragraph 29, the Tribunal ultimately formed a view that the applicant had fabricated evidence about his relationship with the sponsor and memorised the dates and sequence of events for the purpose of the hearing and his interviews with the Independent Expert. The Tribunal formed the view that the applicant memorised incorrect information for the Independent Expert interview and that is the reason he consistently gave dates in those interviews. The Tribunal was of a view that such errors would not have occurred if the applicant’s evidence related to true events rather than the fabricated history of his relationship with sponsor. The Tribunal reached that view despite the applicant’s claim of poor memory and poor mental state and rejected his evidence.
At paragraph 30, the Tribunal concluded that the applicant was not a witness of credibility. The Tribunal accepted that there was documentary evidence of the relationship commencing in 2010, including photographic evidence, statements from third parties and a rental agreement from January 2011 together with other material. The Tribunal concluded the existence of such evidence was not sufficient to satisfy the Tribunal that the applicant and the sponsor established a genuine relationship. The Tribunal stated it is entirely possible to obtain supporting documentary evidence of the nature of that presented by the applicant, whether or not there was a genuine relationship between the applicant and the sponsor.
Accordingly, at paragraph 32, the Tribunal found there was evidence that the applicant had given, or caused to be given to the Minister, evidence that was false or misleading in a material particular. The Tribunal was satisfied that the giving of evidence to an Independent Expert was the giving of evidence to an “officer” such that the requirements of PIC 4020 was satisfied.
The Tribunal went on to consider whether not the requirements of PIC 4020 should be waived but was not satisfied there were compelling circumstances such that the requirements should be waived. Accordingly, the Tribunal affirmed the decision not to grant the applicant his visa.
Grounds of Judicial Review
The applicant relies on the following grounds of judicial review contained in an Amended Application failed with the Court on 17 October 2023. They are as follows:
(1)The Tribunal failed to consider and apply the requirements of Migration Regulations 1.15A(2) and 1.15A(3) before finding the entirety of the applicant’s claims about his relationship with his former sponsor had been fabricated.
(2)The Tribunal failed to consider evidence specifically relevant to the matters in Migration Regulation 1.15A(3) and relevant generally to all the circumstances of the relationship between the applicant and his former spouse (reg 1.15A(2)) in finding that the entirety of the applicant’s claims about his relationship with his former sponsor had been fabricated.
Particulars:
(a)Evidence of:
(i)a joint bank account for periods from 7 June 2013 to 6 December 2015;
(ii)a residential tenancy agreement and the names of the applicant and his sponsor, dated 31 May 2013;
(iii)a certificate of title in the names of both the applicant and his sponsor as joint tenants;
(iv)a consumer credit contract dated 8 April 2013 in the names of the applicant and his former sponsor;
(v)a statutory declaration of a Mr George Stojanovski to the effect that he advised the applicant not to sign a document stating that he would transfer the marital home to the former spouse if they have a divorced;
(vi)statutory declarations of six mutual friends of the applicant and his former sponsor to the effect they had socialised with the applicant and his sponsor as a couple;
(vii)accounts addressed to both the applicant and his former sponsor at 99 Stanfield Avenue Bankstown.
(3)It was legally unreasonable for the Tribunal to dismiss the report of Forensic Psychiatrist Dr Zhang to the effect that the inconsistencies in the applicant’s evidence that due to anxiety and genuine memory error rather than dishonesty without first exercising or considering to exercise the power of enquiry under s 359 of the Migration Act 1958 (Cth) to invite the Forensic Psychiatrist to give more complete reasons for the conclusion reached.
Particulars:
(a)The Tribunal preferred its own lay opinion of how the applicant’s memory should have worked to that of the Forensic Psychiatrist without obtaining, or considering obtaining, more complete evidence from the Forensic Psychiatrist is for the reasons for the conclusions reached in his report.
Consideration
In Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [17] the task of a Court conducting judicial review was described in this manner:
An application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the executive branch of government, here in the form of a decision of the Minister. The court does not consider the merits or wisdom the decision; nor does it remake the decision. The task of the court is to rule upon the lawfulness or legality the decision by reference to the complaints made about it.
It is well established that the Tribunal enjoys an advantage of fact to test the veracity of evidence given orally by observing the witness: Fox v Percy [2003] HCA 22 at [41]; ABT17 v Minister for Immigration and Border Protection [2020] HCA 34 at [62].
The Tribunal is not required to accept uncritically any, and all claims made by an applicant: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451.
Nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion was not made out: Selvadurai v Minister for Immigration and Ethnic Affairs (1992) 34 ALD 347 at 348.
Ground 1
The applicant submitted that s 5F of the Migration Act 1958 (Cth) (“the Act”) requires, inter alia, the Minister must consider all the circumstances of the relationship, including the matters set out in s 5F(3), and make findings on the matters listed in reg 1.15A(3). It was submitted that the Tribunal failed to do so. Reliance was placed on WAEE v Minister for Immigration (2003) 256 FCR 593 at [47].
The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with the issue in its reasons. But that is an inference not to readily to be drawn where the reasons are otherwise comprehensive, and the issue has at least been identified at some point.
It was submitted that the second Tribunal did not deal with the matters in reg 1.15A(3) in that at paragraph 30 it is entirely concerned about the commencement of the relationship. Had the Tribunal concerned itself with those matters and that the applicant was credible in that respect, it could have accepted that the evidence as to the beginning of the relationship was a minor matter and an innocent mistake and that PIC 4020 did not apply.
In relation to Ground 1, the respondent submitted reg 1.15A sets out arrangements for determining whether one or more of the conditions in sections 5F(2)(a), (b), (c) and (d) of the Act exist. Section 5F provides the definition of ‘spouse’. It was one of a number of requirements for the grant of a partner visa that the applicant “is the spouse of the facto partner of the sponsoring partner”.
However, if the relationship had ceased, it was open to the Tribunal to consider whether the applicant had been in a genuine spousal relationship with sponsoring partner prior to its cessation: Minister for Immigration, Citizenship and Migrant Services v Gupta [2022] FCAFC 51 at [44]. It was an additional requirement for the grant of the visa that the applicant satisfy PIC 4020; cl 802.226. PIC 4020 relevantly provided that:
There is no evidence before the Minister that the applicant has given, or cause to be given, to the Minister, an officer, the Tribunal during the review of a Part 5 reviewable decision, a relevant assessing authority or Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:
1. the application for the Visa; or
2. a Visa that the applicant held in the period 12 months before the application was made.
The Tribunal held that PIC 4020 applied in the present case, as it found that the applicant had “fabricated evidence about his relationship with the sponsor and memorised the dates and sequence of events for the purpose of the hearing and his interviews with the Independent Expert” at paragraph 29. In particular, the Tribunal found the applicant had given false information to the Department about when his relationship with Ms Yang had commenced, and that he also given inconsistent evidence about the circumstances of how he met Ms Yang. Accordingly, it held that the “applicant is not a witness of credibility and that he had falsified the entirety of the information about the development of his relationship with the sponsor” at paragraph 31.
The applicant’s argument that it was a jurisdictional requirement for the Tribunal to have considered and applied reg 1.15A(2) and (3) is misconceived. Regulation 1.15A applies when a decision-maker is considering an application for a visa mentioned in reg 1.15A(2) and comes to decide whether the applicant is the spouse of another person for the purposes of s 5F of the Act.
The Tribunal in this case did not, and did not need to, ask itself that question. The Tribunal in the present case considered whether the applicant met the requirements of cl 801.226 and PIC 4020, neither of which referred to or depended upon findings being made about whether the applicant is the spouse of another person.
The finding by the Tribunal that the applicant was not a credible witness was not a conclusion under, or for the purposes of s 5F of the Act. Rather, it was a finding of fact about the information the applicant provided to the Department about his relationship. The Tribunal was entitled to consider that information and determine its veracity. The Tribunal did not overlook the fact that the applicant had provided evidence in support of his genuine relationship with Ms Yang. It referred to that evidence at paragraph 30.
The Tribunal found that the existence of such evidence was not sufficient to be satisfied that the applicant and the sponsor established a genuine relationship as the applicant claimed. The Tribunal added that it was “entirely possible” that supporting documentary evidence of the nature presented by the applicant could have been obtained whether or not he was in a genuine relationship with the sponsor.
The Court agrees with the respondent’s submissions. The Tribunal had sufficient evidence before it to conclude that the applicant had provided information that was false in a material particular and thus did not meet cl 801.226 and that PIC 4020 should not be waived. The Court is satisfied that the finding that the applicant was not a credible witness was open to the Tribunal for the reasons it gave on the evidence before it. The Tribunal did consider the documentary evidence provided but concluded it was not conclusive of the existence of a spousal relationship.
Having formed a view that cl 801.226 was not met and the PIC should not be waived there was no requirement for the Tribunal to consider if the other matters, evidenced by the documentary evidence before the Tribunal, may have pointed towards the applicant being in a genuine spousal relationship. Each of the criteria required under cl 801.22 are separate and independent from each other. They are not required to be considered in any particular order. Ground 1 has no merit.
Ground 2
Ground 2 is a claim that the Tribunal failed to consider requisite information such as bank accounts and a statutory declaration from a Mr Stojanovski. On behalf of the applicant it was submitted that while reference is made to those documents, the applicant contends the Tribunal did not engage with them in an active intellectual process. The applicant concedes that the information was mentioned but paragraph 30 stated that this material was not sufficient to satisfy the Tribunal that a genuine relationship existed. It was submitted that this information should have been considered before the Tribunal found that the applicant had provide false or misleading information.
In relation to Ground 2 the respondent submitted that the applicant asserted the Tribunal failed to consider pertinent information. This ground presupposes it was necessary for the Tribunal to address the factors set out in r1.15A(3) in determining if the applicant had provided false and misleading information. For the reasons set out in Ground 1, the Tribunal was not required to do so.
The applicant identified documents such as bank statements and a certificate of title as being documents the Tribunal failed to consider. These and several other documents demonstrate the facts they apply to, for example that the applicant and Ms Yang had a joint bank account. It is not evident that the Tribunal overlooked these documents or failed in the exercise of its jurisdiction for having failed to address them specifically. While the Tribunal did identify the documents in short form it should be concluded that the Tribunal preferred to place weight on its concerns as to the inconsistent evidence pertaining to the date and circumstances when the alleged relationship between the applicant and Ms Yang commenced.
A fair reading of the Tribunal decision, as a whole, clearly indicates the Tribunal did identify and consider this information. The Court is satisfied that having identified this information, it was not ignored, rather the Tribunal concentrated on the inconsistent evidence the applicant gave regarding the date and circumstances in which he met the applicant.
It was unnecessary to consider this information once the Tribunal determined that, in the Court’s view correctly, that the applicant had given false or misleading information.
The Court does not accept that, in the circumstances of this case, the material required detailed reasons to be given before it was rejected. The Tribunal stated clearly that such documents could be produced notwithstanding the applicant and Ms Yang were not in a spousal relationship for the purposes of the Act. Ground 2 has no merit.
Ground 3
Ground 3 is a claim of legal unreasonableness in relation to not accepting the report of Dr Zhang. The respondent notes the Independent Expert noted the applicant was a poor historian and often unable to recall dates. In my view, this finding is not inconsistent with the Tribunal’s finding that the applicant was fabricating his evidence.
Unreasonableness is where a decision-maker has come to a conclusion so unreasonable that no reasonable decision-maker could have come to it: Minister for Immigration v Li (2013) 297 ALR 225 (“Li”) at paragraph 28, or where a decision has been made that lacks an “evident and intelligible justification” at paragraph 76. The test for unreasonableness is “stringent” and will only arise in rare cases. Unreasonableness is not a means for challenging a decision on the basis that the Court disagrees with the consideration of matters, or the evaluative judgements made by the decision-maker: Li at paragraph 30 and 113.
In Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11 at [11], Allsop CJ said the following concerning a review of a decision for legal unreasonableness:
The task is not definitional but one of characterisation: the decision is to be evaluated, and a conclusion reached as to whether it has the character of being unreasonable, insufficiently lacking rational a foundation, or an evident or intelligible justification, or in being plainly unjust arbitrary capricious or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as to the exercise of that power. The descriptions of a lack of quality used above are not exhaustive or definitional, they are explanations or explications of legal unreasonableness, of going beyond the source of power.
The applicant complains that the Tribunal should have sought a more detailed explanation from Dr Zhang and that the failure to do so was legally unreasonable as it was devoid of plausible justification: Minister for Immigration v CRY16 (2017) 253 FCR 475 at [82]. It was submitted that the adequacy of Dr Zhang’s report was not at issue before the Department. This submission overlooks the fact that the Department found the applicant had provided false or misleading information. It was thus implicit that the applicant’s explanation for the differing dates was not accepted by the Department.
It was for the applicant to provide his evidence and arguments in sufficient detail to enable the Tribunal to reach the requisite state of satisfaction: Minister for Immigration and Citizenship v Lat (2006) 151 FCR 214 at [76]. The Tribunal is under no obligation to “afford every opportunity to an applicant for review to present his or her best possible case or improve upon the evidence”: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [82], Abebe v The Commonwealth (1999) 197 CLR 510. The Tribunal was under no general duty to inquire: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992 at [43].
The Court is satisfied the Tribunal gave cogent reasons why it rejected Dr Zhang’s report. It did not purport to conduct its own medical examination of the applicant. The Tribunal was under no duty to inquire further, for example seeking further explanation from Dr Zhang as to the extent and findings of a ‘mental state examination’ he conducted. The Tribunal gave adequate reasons for rejecting the report. The Court is satisfied it was within the Tribunal’s legitimate fact-finding jurisdiction to either accept or reject the report. It simply rejected the opinion of Dr Zhang for the reasons it gave. Ground 3 has no merit.
Disposition
As none of the grounds of judicial review have merit, the application must be dismissed.
I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys. Associate:
Dated: 21 November 2023
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