Dai v Minister for Immigration

[2018] FCCA 697

FEDERAL CIRCUIT COURT OF AUSTRALIA

DAI v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 697

Catchwords:
MIGRATION – Application for review of former Migration Review Tribunal decision – whether the Tribunal was illogical or irrational – the Tribunal found certain evidence generally unreliable but then relied on parts of it to find inconsistency with evidence from the review applicant and primary visa applicant – jurisdictional error established.

Legislation:

Migration Act 1958 (Cth), ss.5F, 375A, 359A, 476

Migration Regulations 1994 (Cth), sch.2, cls.309.211, 309.221, reg.1.15A

Cases cited:

Minister for Immigration and Border Protection v Singh [2016] FCAFC 183; (2016) 244 FCR 183

Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2000) 240 CLR 611
Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163
SZTAP v Minister for Immigration and Border Protection [2015] FCAFC 175; (2015) 238 FCR 404

Applicant: CHENGLIAN DAI

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1467 of 2015

Judgment of: Judge Nicholls

Hearing dates: 16 August 2016 and 24 August 2016

Date of Last Submission: 24 August 2016

Delivered at: Sydney

Delivered on: 28 March 2018

REPRESENTATION

Counsel for the Applicant: Mr B Zipser

Solicitors for the Applicant: Zhang Shijing Lawyers

Solicitors for the Respondents: Mr J Hutton and Ms D Watson of Australian Government Solicitor

ORDERS

1. The name of the second respondent is amended to read “Administrative Appeals Tribunal”.

2. A writ in the nature of certiorari issue quashing the decision of the second respondent made on 28 April 2015.

3. A writ in the nature of mandamus issue compelling the second respondent to reconsider the application according to law.

4. The first respondent pay the applicant’s costs set in the amount of $5000. 

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1467 of 2015

CHENGLIAN DAI

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 28 May 2015 seeking review of the decision of the former Migration Review Tribunal, now the Administrative Appeals Tribunal (“the Tribunal”), made on 28 April 2015 which affirmed the decision of the Minister’s delegate to refuse Partner (Provisional) (Class UF) visas to Ms Yun Deng (“the visa applicant”) and Mr Hongseng Zhang (“the second visa applicant” who is also the visa applicant’s son). Mr Chenglian Dai was the review applicant and the sponsor for the visas.

2. The evidence before the Court is as follows:

   a)A bundle of relevant documents filed and tendered by the Minister (“the Court Book” – “CB”, “RE1”).

   b)The affidavit of Ulysses Dean Young, Paralegal, made on 22 August 2016 annexing a transcript (“T”) of the hearing before the Tribunal.

3. Ms Deng and Mr Zhang applied for the visas on 18 March 2013 on the basis of Ms Deng’s claimed spousal relationship with Mr Dai (CB 1 to CB 292). They were assisted by a registered migration agent (CB 37). Mr Zhang applied as a dependent member of Ms Deng’s family (CB 34). Ms Deng and Mr Zhang are citizens of China, and Mr Dai is a citizen of Australia (CB 5 and CB 12 and CB 34).

4. Mr Dai and Ms Deng provided information about their relationship with the application for the visas. They stated that they had been introduced by Mr Dai’s nephew in early 2012 in China and formed a relationship. Mr Dai returned to Australia in March 2012, but they “kept in touch” and they married in July 2012 (CB 287). They then “registered” their marriage on 3 August 2012 (see CB 53). Since meeting Ms Deng, Mr Dai had travelled to China on 6 occasions, and has stayed in Ms Deng’s home from, and including, the July 2012 trip ([25] at CB 470).

5. Mr Dai provided two written statements in support of the visa application. In the first statement, he provided his relationship history regarding two previous marriages (including one child from his first marriage, his daughter Ms Anna Dai) (CB 68 to CB 69). In the second statement, he provided a history of his relationship with Ms Deng, including when they had met, their marriage, and how they have kept in touch since he returned to Australia (CB 282 to CB 283).

6. Ms Deng also provided a written statement in support of the visa application. Ms Deng stated that she had been married twice previously, and provided a history of her relationship with Mr Dai, including when they had met, their marriage, and how they had kept in touch since he returned to Australia (CB 287 to CB 288).

7. Mr Dai’s daughter (Ms Anna Dai) also provided a statement by way of a Statutory Declaration dated 13 February 2015 supporting the application (CB 271 to CB 272). Mr Dai and Ms Deng were interviewed separately at the Australian Consulate-General at Guangzhou on 14 November 2013 (CB 307.6).

8. The delegate of the Minister refused the grant of the visas on 25 February 2014 (CB 304 to CB 313). The delegate was not satisfied that Ms Deng’s relationship with Mr Dai was “genuine and continuing” (CB 309.9). Therefore, the delegate found that cl.309.211 of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”) was not satisfied.

9. The delegate found that Mr Dai and Ms Deng had limited the social recognition of their relationship, and although their explanation as to the reason for this was “plausible”, the delegate found it “improbable the parties [had] not come into contact with more people in social situations where their relationship would be discussed” (CB 309 to CB 310).

10. Of particular concern to the delegate was Mr Dai’s and Ms Deng’s “lack of knowledge of their respective circle of friends”. The delegate was not satisfied that “the parties confining the social recognition of their marriage [was] representative of parties in a genuine and continuing spousal relationship” (CB 309.9).

11. Further, the delegate found that while Mr Dai and Ms Deng appeared to have “exchanged biographical information”, their knowledge of each other’s previous marriages was “circumscribed or limited”, and had not been “obtained” in the “natural course of the development of a relationship” (CB 311.7). The delegate found similarly in relation to Ms Deng’s knowledge of Mr Dai’s employment (CB 312.5).

12. The delegate found that they had “not exhibited any of the usual indicators of a genuine and continuing relationship”, and that there were a “number contradictions and inconsistencies” in their evidence (CB 312.6). The delegate refused the grant of the visas on the basis that Ms Deng did not satisfy cl.309.211 of the Regulations (CB 312.6).

13. An application for review to the Tribunal was made on 5 March 2014 (CB 314 to CB 324). Mr Dai was assisted by a registered migration agent (CB 321). Mr Dai was invited to a hearing before the Tribunal on 3 March 2015 by email sent to his authorised representative on 20 January 2015 (CB 328 to CB 330).

14. A Tribunal file note in the Court Book indicates that Mr Dai’s representative contacted the Tribunal on 24 February 2015, concerned that Mr Dai had received a “text message” informing him of the hearing on 3 March 2015 (CB 335). Mr Dai’s representative later sent email correspondence to the Tribunal on 24 February 2015 confirming that the hearing invitation “went to the junk mail”. The representative requested a postponement of the hearing (CB 336).

15. The Tribunal refused the application for the postponement of the hearing by letter dated 24 February 2015 sent to Mr Dai’s representative by email on that day (CB 338 to CB 341). Mr Dai’s representative subsequently provided a completed “Response to Hearing Invitation” form indicating that Mr Dai would attend the hearing on 3 March 2015 (CB 342 to CB 344).

16. Mr Dai’s representative provided written submissions to the Tribunal prior to the hearing on 26 February 2015, including a number of attached documents (CB 345 to CB 409). Mr Dai and his representative appeared in person at the hearing on 3 March 2015 (CB 410). Ms Deng, the second visa applicant and Mr Dai’s daughter, Ms Anna Dai, gave oral evidence by telephone (CB 410 and see [4] at CB 467). At the hearing, the Tribunal also received a written statement from Ms Dai dated 27 February 2015 (CB 411).

17. The Tribunal invited Mr Dai to “comment on or respond to information” by letter dated 6 March 2015 and sent to his authorised representative by email on the same date (CB 412 to CB 416) (“the s.359A letter”). The information related to inconsistencies in the evidence provided by Mr Dai, Ms Deng and Ms Dai. Mr Dai responded on 13 April 2015, attaching a number of further documents (CB 420 to CB 463), including a psychologist’s report in relation to himself (CB 427 to CB 429), and another written statement from Ms Dai (CB 431 to CB 432). The Tribunal affirmed the delegate’s decision on 28 April 2015 (CB 464 to CB 481).

The Tribunal Decision

1. The Minister filed written submissions in this matter on 9 August 2016. The Tribunal’s analysis and findings in relation to the evidence are summarised in the Minister’s written submissions. They are, in my view, a fair summary of the Tribunal’s analysis. I adopt the relevant paragraphs as follows ([11] – [15] of the Minister’s written submissions):

   “[11] The Tribunal referred to the inconsistencies in the evidence provided by the parties which had been the subject of the s 359A letter and found that the responses provided did not adequately explain the inconsistencies. In particular, the [T]ribunal found inconsistencies in relation to the following:

   [11.1] The applicant provided evidence at the delegate interview that, as a masseuse, he regularly gives head, neck and shoulder massages to the visa applicant. The visa applicant’s evidence was that she had never received a massage from the applicant: CB 475 [63].

   [11.2] The applicant advised that he was dehydrated and needed to attend the bathroom when he was interviewed, which explained his inconsistent answers. The Tribunal found this response to be unpersuasive and failed to explain the inconsistencies between his evidence and the visa applicant’s evidence: CB 475 [63].

   [11.3] The applicant stated that he ceased work in August 2014 and began receiving the age pension. Ms Dai’s evidence was that the applicant worked 5 to 6 days per week, and the visa applicant stated that he works 3 to 4 days per week. The Tribunal placed weight on this inconsistency: CB 475 [64].

   [11.4] Ms Dai stated at the hearing that the applicant stayed with his sister and the visa applicant during his visit to China. She then provided written evidence that she thought the applicant had stayed with his sister, but she was not in the habit of checking the applicant’s whereabouts. The Tribunal found this to be unconvincing, especially considering the applicant had concealed his marriage to the visa applicant from his siblings: CB 475 [65].

   [12] The Tribunal then addressed the relevant aspects of the parties’ relationship in determining whether their relationship was genuine and continuing. It found:

   [12.1] The review and the visa applicants have never shared a joint bank account, and do not have joint liabilities or joint assets: CB 476 [69].

   [12.2] The review and visa applicants have never lived together for the periods claimed. Although photographs showed the applicants doing day-to-day chores together, the Tribunal did not believe this showed the applicants had cohabited: CB 477 [74 – 75]

   [12.3] The relationship and marriage of the review and visa applicants has been hidden from the applicant’s siblings, and the applicant’s friends: CB 477 [79]

   [12.4] There is little evidence that the review and visa applicants provide one another with companionship and support and that they have any long-term commitment to the relationship: CB 480 [92].

   [13] The Tribunal concluded that although the parties knew each other personally, socialised together in China and communicated with one another, it was not satisfied that at the time the visa application was lodged and at the time of its decision the parties had a mutual commitment to a shared life as husband and wife to the exclusion of all others, and that the relationship was genuine and continuing: CB 480 [94].

   [14] The Tribunal determined that the visa applicant did not meet the requirements of cl 309.211 or cl 309.221 of the Regulations and did not satisfy the criteria for the grant of the visa.

   [15] The Tribunal found that, since the visa applicant did not meet cl 309.211 of the Regulations, the secondary applicant did not meet the requirements of cl 309.311 of the Regulations, and therefore he did not satisfy the requirements for the grant of the visa.”

The Original Application to the Court

1. The application before the Court initially contained the following grounds (and see further below):

   “1. The delegate of Minister for Immigration and Boarder Protection Guangzhou Office (the 'delegate of the Department') and Migration Review Tribunal ('MRT') are erred to make a 'privative clause decision' within the meaning given by s474 (2) of the Migration Act 1958 (Cth), in particular:

   2. The delegate of the Department and MRT's decisions are erred by taken into account irrelevant considerations when considering whether the Review Applicant has cohabitated together with Review Applicant in China. The irrelevant considerations are as follows:

   1) The delegate of the Department considered that there was no registration with local authorities (PSB) when the Review Applicants stayed in China.

   2) MRT's consideration of Ms Dai's evidence regarding where the Review Applicant was staying in China during Ms Dai's visit in September 2014.

   3) MRT's consideration of Ms Dai's visiting the Review Applicant's sister regarding whether the Review Applicant's sister has the knowledge of the Review Applicant's marriage.

   3. The delegate of the Department and MRT's decisions are erred by taken into account irrelevant considerations when considering whether the Review Applicant and the Visa Applicant have nature of persons' commitment to each other. The irrelevant considerations are as follows:

   1) The delegate of the Department’s consideration of the Review Applicant’s divorcing reason for his second marriage and its impact to the Review Applicant’s current marriage.

   2) Ms Ng’s psychological report in relation to the psychological impact of the Review Applicant’s new relationship on his mental health or treatment.

   4. The delegate of the Department and MRT's decisions are erred by failing to take into account relevant and material consideration pursuant to 474 (2) (j) of the Migration Act 1958 (Cth). Failure to take into account relevant and material considerations are as follows:

   1) The delegate of the Department failed to consider bank statements from a Chinese bank as the evidence their shared  life.

   2) MR.T failed to consider the evidence of Visa Applicant's son in relation to the Review Applicant's cohabitation with the Visa Applicants when the Review Applicant was in China.

   3) MRT failed to consider the statement written and signed by Anna DAI in relation to positive psychological and physical impact after the Review Applicant married the Visa Applicant.

   5. The decision made by the delegate of the Department and MRT is so unreasonable when considering the evidence given by the Review Applicant. The unreasonable considerations are as follows:

   1) The decision of MRT is unreasonable by making contradict comments: the MRT considering one Dr letter is to have been written to support the application, while stating the other Psychologist letter does not support the application as they expected.

   2) The decision of the delegate of the Department is unreasonable to conclude that the Review Applicant did not cohabit with the Visa Applicant by considering the Review Applicant failed to register to local authorities to prove the cohabitation.

   3) The decision of MRT is unreasonable by stating the large numbers of photos provided by the Review Applicant are insufficient to persuade the Tribunal that the parties are in a genuine and continuing relationship.

   [Errors in original.]

2. The parties first appeared before a Registrar of the Court on 18 June 2015. Mr Dai was represented by a firm of solicitors (the same firm that represented Mr Dai before the Tribunal and who assisted Ms Deng and the second visa applicant to make their application for the visas). Orders were made for the progress of the matter, including that the application be set down for final hearing on 18 August 2016 before another Judge of this Court. Subsequently, the matter was transferred to my docket and listed for hearing on 16 August 2016.

3. On 16 August 2016, the parties were represented by their respective solicitors. It immediately became apparent that the solicitor for Mr Dai was unable to adequately explain his case before the Court, and demonstrated a very limited understanding of the process of judicial review of a Tribunal decision. I adjourned to allow the solicitor to consult with Mr Zhang (not the second applicant), who was the solicitor who appeared to have prepared the applicant’s application and affidavits filed with the Court, and who the Court was subsequently informed was also the principal of the relevant firm.

4. On the resumption of the hearing, Mr Dai’s solicitor indicated that they were not seeking to press either of Mr Dai’s affidavits and were pressing the five grounds, and relevant particulars, of the application filed with the Court. However, upon further explanation of the grounds, it became apparent that Mr Dai’s solicitor continued to have little understanding of the relevant law, as indicated by his reference to the Administrative Decision (Judicial Review) Act 1977 (Cth). Upon explanation to Mr Dai’s solicitor regarding the relevant law, the solicitor then indicated that they were abandoning the grounds of the application to the Court, or the particulars to the grounds, relating to the delegate of the Minister.

5. For Mr Dai’s benefit, and to give him every opportunity to present his case, I again adjourned the hearing to allow Mr Zhang, the principal of the firm, to attend the hearing and explain Mr Dai’s application to the Court.

6. Upon resumption of the hearing, Mr Zhang confirmed that he had prepared the application to the Court and Mr Dai’s affidavits (those that the solicitor had previously indicated would not be pressed). However, Mr Zhang indicated that he “had not prepared for this case” and that he had also not prepared Mr Dai’s written submissions filed on 12 August 2016.

7. It became apparent that Mr Zhang was also unable to explain to the Court the relevant law and the grounds of the application before the Court. I further adjourned the hearing of the matter to 24 August 2016 to allow Mr Dai’s solicitors to adequately acquaint themselves with the relevant law and prepare for the final hearing of the matter. I also made an order that Mr Dai pay the Minister’s costs for the day thrown away.

8. On 23 August 2016, Mr Dai filed written submissions (“Mr Dai’s written submissions”) attaching a proposed amended application and the affidavit of Mr Young. At the resumption of the hearing on 24 August 2016, Mr Dai was represented by counsel and the Minister by a solicitor. Leave was granted to Mr Dai to proceed on the amended application. The hearing proceeded and the matter was reserved on that date. Subsequently, on 15 November 2016, the matter was unreserved pending the outcome of the Minister’s application for Special Leave to appeal from the Full Federal Court’s judgment in Minister for Immigration and Border Protection v Singh [2016] FCAFC 183; (2016) 244 FCR 183. The High Court refused the grant of Special Leave on 12 May 2017, and the matter was listed for directions on 17 July 2017.

9. At the directions on 17 July 2017, the parties agreed that the documents covered by the certificate issued pursuant to s.375A of the Act (“the s.375A certificate”) that were on Mr Dai’s departmental file, were not relevant to the proceedings before the Court. The parties agreed that the Court could proceed to judgment and the matter was again reserved. A redacted copy of the documents the subject of the s.375A certificate were also marked for identification (“MFI1” and as attached to the affidavit of Elizabeth Warner-Knight, solicitor, filed in these proceedings on 14 July 2017 but not read into evidence).

Consideration

1. As mentioned above, the final hearing of this matter proceeded on the basis of leave granted to Mr Dai to proceed on the amended application. The grounds of that amended application are in the following terms:

   “1. The Tribunal found at paragraph 74 of its decision that it ‘is not prepared to accept that the parties have lived together in the visa applicant’s home for the periods they have claimed’. For reasons explained in written submissions dated 22 August 2016, the Tribunal fell into jurisdictional error in making this finding.

   2. The Tribunal found at paragraph 86 of its decision that ‘the visa applicant’s evidence indicated that she considers her investment property to be irrelevant to the parties’ relationship or plans [and] the Tribunal has formed the view that this shows a lack of commitment to the relationship on her part.’ For reasons explained in written submissions dated 22 August 2016, the Tribunal fell into jurisdictional error in making this finding.”

2. Ground one of the amended application directs attention to [74] (at CB 477) of the Tribunal’s decision record as follows:

   “While the Tribunal accepts that the review applicant has visited the visa applicant and may have stayed at her home on occasion, after considering all of the evidence before it the Tribunal is not prepared to accept that the parties have lived together in the visa applicant’s home for the periods they have claimed.”

3. Mr Dai’s counsel described this complaint as “the Living Arrangements Finding” ([24] of Mr Dai’s written submissions). The submission was that this finding was important in the Tribunal’s consideration. The argument was that if the Tribunal had, in the context of the totality of its analysis, accepted this claim, then this would have led it to find that Mr Dai and Ms Deng were in a genuine spousal relationship, or more particularly, would have provided a strong basis for such a finding.

4. In written submissions, Mr Dai sought to characterise the legal error as being that the Tribunal’s decision was illogical or irrational amounting to jurisdictional error (relying principally on Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2000) 240 CLR 611 (“SZMDS”) and see [24] – [35] of Mr Dai’s written submissions).

5. In the alternative, Mr Dai asserted the jurisdictional error was that the Tribunal mischaracterised or misconstrued the evidence, and thereby relied on irrelevant material (relying on Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 and see [36] of Mr Dai’s written submissions).

6. The focus of the attack in ground one is the evidence given by Ms Dai, and how the Tribunal understood and applied this evidence to the circumstances before it.

7. The context for this issue is found in the following. In its decision record, the Tribunal reports Mr Dai made six visits to China with a total of eight months in China since meeting Ms Deng ([73] at CB 476). The Tribunal reports that Mr Dai’s evidence was that from the time of the second visit (July 2012), and on each subsequent visit, he stayed at Ms Deng’s home ([51] at CB 473).

8. The Tribunal reports that it asked Ms Deng if Mr Dai ever stayed with his siblings in China. She gave evidence that since Mr Dai travelled to China in July 2012 he had “been living at her place” ([51] at CB 473).

9. The Tribunal asked Ms Deng the same question again. The Tribunal reported her response as follows ([51] at CB 473):

   “…When asked if the review applicant had ever stayed with his siblings she said that she could not remember, but that most of the time he stayed with her. Sometimes the review applicant visits his friends and relatives but always comes back at night.”

10. At [44] (at CB 472) of its decision record, the Tribunal reported Ms Dai’s evidence at the Tribunal hearing as follows:

    “Ms Anna Dai is the review applicant’s daughter. She said that the parties are grown adults and that she does not ask her father about his relationship. However, Ms Dai said that the visa applicant treats her father well. She met the visa applicant in person in China for the first time last year and said that she is a lovely person in that her father loves her very much. Ms Dai said that she stayed in a hotel with her fiancé and her father stayed at her auntie’s home. When asked to clarify who she was referring to she said that she calls her stepmother Aunty Yun. When asked if the review applicant stayed at his sister’s home Ms Dai said that she does not really keep track of where her father stayed when she was in China. She met the visa applicant at a Chinese restaurant and she then went to the visa applicant’s home and met her parents. Ms Dai said that she thinks that the visa applicant was living with her parents and possibly her brother. The Tribunal asked Ms Dai again about where the review applicant was staying in China. Ms Dai said that she is not sure if he stayed at his sister’s home or at the visa applicant’s home; she thinks he stayed some of the time at his sister’s home but Ms Dai was only there for a week. Ms Dai said that her father is an adult and she does not check up on him.”

11. In a letter dated 6 March 2015 (CB 414 to CB 416), the Tribunal wrote to Mr Dai and invited him to comment on, or respond to, certain “information”. One item of “information” is relevant to ground one of the amended application to the Court. Under the heading of: “Where you were residing in China in September 2014” the Tribunal stated (see CB 415):

    “At the hearing Ms Dai gave the following evidence:

    - She stayed in China for a one (sic) week in September 2014 and visited Ms Deng’s home while there.

    - She met the visa applicant’s parents and went out for dinner to a Chinese restaurant with you and Ms Deng.

    - She is not sure whether you were staying with Ms Deng or your sister during the time she was in China.

    - She thinks you stayed some of the time at your sister’s home but Ms Dai was only there for a week.

    - She did not really keep a track of where you were staying when she was in China.

    Ms Deng gave evidence that you always stay with her when you are in China, although you sometimes visit your friends and siblings during the day.

    You gave evidence that you always stay with Ms Deng when in China. You stayed with your sister in February 2012, but have stayed with Ms Deng since July 2012.

    The above information is relevant because there has been inconsistent evidence about where you were staying in China in September 2014. As a consequence, the Tribunal may conclude that Ms Dai’s evidence, your evidence/and or Ms Deng’s evidence about you living circumstances in China was not truthful and not accept that evidence. This may lead the Tribunal to doubt that you have a mutual commitment to a shared life as husband and wife.

    This is turn would be the reason, or a part of the reason, for affirming the decision that is under review.”

12. Mr Dai’s representative responded on his behalf by letter dated 13 April 2015 (CB 420 to CB 463 with annexures). The annexures included a written statement (“letter of clarification”) from Ms Dai dated 5 April 2015 (CB 431 to CB 432). For current purposes, the following is of note (CB 431):

    “[4] Before my father and Aunty Yun got married, including the time when they first met, my father lived at his sister (my aunt)’s home. After they got married, my father would stay at Aunty Yun’s home every time he visited China.

    [5] When I visited China in September 2014, we dined as a group at a Chinese restaurant and visited Aunty Yun’s home after dinner, where I met her parents. We stayed for a short while and took some photos together. It was the only meeting we had in my one-week stay in Haikou. When it was time for my fiancé and I to leave, we farewelled my father, Aunty Yun and her parents at her home, not at the restaurant we dined at. On another night, I was at my aunt’s home with my father and my fiancé and stayed til late in the evening. I left my aunt’s home with my fiancé before my father left. I assumed that my father would stay at my aunt’s home for convenience, as it was late at night. I do not have a habit of checking with my father on his whereabouts.”

    [Errors in original.]

13. Before the Court, the parties took different views of the oral evidence given by Ms Dai (as set out in the transcript (“T”) of the Tribunal hearing held on 3 March 2015, and annexed to the affidavit of Mr Young). Relevantly, I note the following from the transcript [I also note that the annexed transcript was not paginated and page numbers have been added for ease of reference] (see T2.7 to T2.25 and T3.3 to T3.22 and T4.7 to T4.15):

    “[Ms Dai]: Okay.

    [Member]: Okay. Now I’ve read the statement that you’ve provided.

    [Ms Dai]: Yes.

    [Member]: I haven’t looked at all the photographs yet but I shall do that later this afternoon. What can you tell me about the relationship? You’ve obviously agreed to be witness to support your father’s relationship. So what can you tell me about the relationship?

    [Ms Dai]: Well I mean, because we’re grown adults, I don’t really ask my dad about his relationships. Um but I do know that um Yun treats him very well every time he goes back to China. I met Yun in person last year when I went back, and we had dinner and everything and um I met her for the first time. And she was a really lovely person. Um and I can see that she really treats my dad really well. So I think, and that’s why he’s you know loved her so much because from what I can see, I mean, I don’t normally ask him but I can feel that, I can feel a change in his personality. Hello?

    [Member]: Hello, I’m just checking notes as we go.

    [Ms Dai]: Okay.

    [Member]: And, so where did you stay when you were in China?

    [Ms Dai]: Where did I stay? Yeah I stayed in a hotel with my boyfriend at the time.

    [Member]: And what about your dad? Where did he stay?

    [Ms Dai]: He stayed at my auntie’s, and then he would go visit [inaudible].

    …

    [Member]: And you said that your dad stayed at your auntie’s?

    [Ms Dai]: Well my auntie always has a room for him if he needed to stay but like he could be staying for [inaudible] because when I stay at the hotel, I don’t know the whereabouts of my dad. He could stay at my auntie’s or he could stay at Auntie Yun’s.

    [Member]: So are you saying you call your step mother an auntie?

    [Ms Dai]: Ah that’s how I call, like I don’t, I can’t really call my, I don’t really call anyone that’s my dad’s wife, my mum because I call my mum, my mum. So I hope that can be understood as just a personal preference.

    [Member]: So what do you call his current wife?

    [Ms Dai]: Sorry?

    [Member]: What do you call his current wife?

    [Ms Dai]: Auntie Yun. As I would with any of his wives, except for my mum, ‘cause I just call my mum. Just out of respect for my mum.

    [Member]: So I’m just trying to clarify, you were staying in a hotel, I’m just not sure where he was staying?

    [Ms Dai]: He was, yeah well because I know he has a place to stay either at my auntie’s or Auntie Yun’s.

    [Member]: Sorry so at he’s own sister’s or at his wife’s? Is that what you’re saying?

    [Ms Dai]: Yeah either. Either or. I don’t really keep track of where he stays ‘cause I’m with, I would be out with my fiancée at the time, so we would be doing our own thing.

    …

    [Member]: And was your father like staying there at that time? Or was he with you or with his sister?

    [Ms Dai]: Um well, we just came back from the restaurant. So like he didn’t say whether he was going to stay at my auntie’s or at Auntie Yun’s. ‘cause I left, I left after a while. I didn’t stay there for very long.

    [Member]: So was your understanding that he was staying some of the time at his sister’s house?

    [Ms Dai]: Probably, some of the time. ‘cause I was only there, I was only in China for I think in Hainan for about a week, in Haikou. So … yeah, my dad’s an adult. I don’t really check up on what he does. So like, he doesn’t really check up on what I do.”

    [Errors in original.]

14. The following explanation is necessary. One, as mentioned above, the transcript annexed to Mr Young’s affidavit was not paginated, for ease of reference, page numbers have been added.

15. Two, the reference by the Tribunal member to having read Ms Dai’s statement is not the statement referred to at [39] above. It appears, at best, to be a reference to another statement by Ms Dai dated 27 February 2015 and provided by Mr Dai at the hearing on 3 March 2015 (CB 411).

16. Three, the references in the transcript to “auntie Yun” in context, can reasonably be understood as references to Ms Deng. The references to “auntie” or “auntie Yun” [or “aunty” or “aunty Yun”] are as explained by Ms Dai at the hearing, and as set out in a subsequent statement by Ms Dai as follows: “aunty Yun” is a reference to Ms Deng (“stepmother” see [1] at CB 431). “Aunty” is a reference to Mr Dai’s sister who lived in China.

17. Before the Court, Mr Dai did not challenge the Tribunal’s summary of Ms Dai’s evidence given at the hearing as set out at [44] (at CB 472). However, Mr Dai’s submissions focused on Ms Dai’s subsequent “letter of clarification” which sought to explain her oral evidence (in particular [4] and [5] of that letter as set out at [39] above and see CB 431).

18. Mr Dai’s counsel submitted that in the letter of clarification, the “flavour” of the evidence given by Ms Dai was that her evidence consisted of certain observations, and that she had no direct knowledge of where Mr Dai stayed.

19. Mr Dai’s submissions before the Court drew particular attention to the Tribunal’s reasoning in relation to this matter as set out at [62] - [65] (at CB 475). In particular at [62] (at CB 475), the Tribunal stated that it did not “consider that the response provided in response to the s.359A letter adequately explained the inconsistencies in the oral evidence at the hearing” ([62] at CB 475).

20. It is to be remembered that in its s.359A letter, the Tribunal identified three inconsistencies. For the purposes of ground one, it is only the third inconsistency that is of relevance. At [65] (at CB 475) of its decision record the Tribunal stated:

    “There was also inconsistent evidence at the hearing about where the review applicant was staying when Ms Dai was in China in September 2014. Ms Dai said that she was not sure if the review applicant was staying with his sister or the visa applicant while she was in China and she said she thinks that the review applicant spent some time staying with his sister. Ms Dai provided a written clarification after the hearing to explain that she had assumed that the review applicant had stayed with his sister on two occasions, but she is not in the habit of checking with her father regarding his whereabouts. This response was not convincing. The Tribunal notes that the parties’ relationship and marriage has been concealed from the review applicant’s sister. It would have expected Ms Dai to have been aware of her father’s living arrangements in China during her brief visit there.”

    [Emphasis added.]

21. The gravamen of Mr Dai’s complaint is that when Ms Dai’s evidence is considered in its entirety (including the letter of clarification), there was, contrary to the Tribunal’s finding, no inconsistency.

22. Mr Dai submits that the Tribunal did not reject Ms Dai’s evidence that she had no direct knowledge of where Mr Dai stayed in China. That is, Ms Dai made clear that she did not observe where her father had stayed, and therefore she did not know.

23. In short, Mr Dai submits that there is a distinction between Ms Dai’s stated lack of knowledge, and the Tribunal’s view that the evidence was a positive assertion that Mr Dai was staying with her aunt, that is, Mr Dai’s sister and not Ms Deng.

24. The Tribunal recognised the relevant regulatory requirement for the grant of the visa was that, at the time of application and at the time of decision, Ms Deng must be found to be the spouse (or de facto partner) of Mr Dai (cl.309.211(2) and cl.309.221 of Schedule 2 to the Regulations) ([66] at CB 475).

25. The Tribunal also correctly identified that the definition of “spouse” as set out in s.5F of the Act, required satisfaction as to a number of matters ([67] at CB 476). This included, with reference to reg.1.15A of the Regulations, the four matters set out at reg.1.15A(3) as follows:

    “Regulation 1.15A

    Spouse

    …

    (3) The matters for subregulation (2) are:

    (a) the financial aspects of the relationship, including:

    (i) any joint ownership of real estate or other major assets; and

    (ii) any joint liabilities; and

    (iii) the extent of any pooling of financial resources, especially in relation to major financial commitments; and

    (iv) whether one person in the relationship owes any legal obligation in respect of the other; and

    (v) the basis of any sharing of day-to-day household expenses; and

    (b) the nature of the household, including:

    (i) any joint responsibility for the care and support of children; and

    (ii) the living arrangements of the persons; and

    (iii) any sharing of the responsibility for housework; and

    (c) the social aspects of the relationship, including:

    (i) whether the persons represent themselves to other peoples as being married to each other; and

    (ii) the opinion of the persons’ friends and acquaintances about the nature of the relationship; and

    (iii) any basis on which the persons plan and undertake joint social activities; and

    (d) the nature of the persons’ commitment to each other, including:

    (i) the duration of the relationship; and

    (ii) the length of time during which the persons have lived together; and

    (iii) the degree of companionship and emotional support that the persons draw from each other; and

    (iv) whether the persons see the relationship as a long-term one.”

26. Mr Dai’s assertion of jurisdictional error on the part of the Tribunal’s reasoning is directed to [73] (at CB 476) to [75] (at CB 477) of its decision record as follows:

    “[73] The Tribunal notes that the review applicant has travelled to China on six occasions since the parties say they formed a relationship. According to the Department’s movement records, he has spent a total of around eight months in China between July 2012 and October 2014. However, the review applicant gave evidence that a number of his siblings live near the visa applicant. The Tribunal has placed weight on Ms Dai’s evidence regarding where the review applicant was staying in China during Ms Dai’s visit in September 2014. Ms Dai initially said that she thought that her father had stayed some nights with his sister, but in her clarification provided after the hearing she stated that she had wrongly assumed where her father was staying. When the visa applicant was asked at the hearing if the review applicant had ever stayed with his siblings when in China she stated that she could not remember. The Tribunal notes the consistent oral evidence provided that the review applicant has concealed his relationship with the visa applicant from his siblings. It also notes that the review applicant had not registered to stay in the visa applicant’s home until after the delegate’s decision.

    [74] While the Tribunal accepts that the review applicant has visited the visa applicant and may have stayed at her home on occasion, after considering all of the evidence before it the Tribunal is not prepared to accept that the parties have lived together in the visa applicant’s home for the periods they have claimed.

    [75] The Tribunal accepts on the basis of the photographs provided that the parties have done some day-to-day household chores together, including shopping and cooking. However, these photographs do not persuade the Tribunal that the parties have cohabited in China for the periods claimed.”

27. Mr Dai’s submission was that the Tribunal “placed weight” on what it said was Ms Dai’s evidence. The assertion is that contrary to the Tribunal’s understanding, Ms Dai’s evidence was not inconsistent with the evidence of Mr Dai and Ms Deng as to where Mr Dai stayed when he visited China on the relevant occasions. Ms Dai’s evidence could not reasonably be understood as establishing any probative basis to say that Mr Dai did not stay with Ms Deng as they had claimed.

1. Mr Dai’s counsel relied on SZMDS at [130] – [133] and [135] for the proposition that the Tribunal’s decision was illogical and irrational because when a “probative standard” is applied to Ms Dai’s evidence, there was nothing in her evidence that was inconsistent with the evidence of Mr Dai and Ms Deng as to where Mr Dai stayed while in China on the relevant occasions.

2. The submission was that the Tribunal’s finding (at [74] at CB 477) that Mr Dai and Ms Deng had not lived together in Ms Deng’s home for the periods they had claimed, was a “pivotal” finding in the Tribunal’s reasoning. That finding (at [74] at CB 477), was based on the Tribunal’s view of Ms Dai’s evidence. Of immediate relevance was the Tribunal’s finding that Ms Dai’s evidence was inconsistent in a material particular, with the evidence of Mr Dai and Ms Deng.

3. Yet the Tribunal also had before it other evidence to support the claim that they had lived together, including the one and only item (photographs) identified by the Tribunal at [75] (at CB 477) that led it to accept:

   “… that the parties have done some day-to-day household chores together, including shopping and cooking…”

4. The Minister drew attention to Ms Dai’s evidence given at the hearing (see [40] above). The Minister’s view of the evidence was that Ms Dai initially made a “fairly unequivocal statement” that Mr Dai was staying at the “aunty’s” house (that is, Mr Dai’s sister). Then the evidence became equivocal when Ms Dai said she was not sure where Mr Deng was staying and that he may have stayed with either his sister (“aunty”) or Ms Deng (“aunty Yun”).

5. The Minister submitted that given this evidence, it was understandable that the Tribunal became concerned and wrote to Mr Dai about its concerns (see [38] above). The submission was that the Tribunal’s “main concern” was that it expected Ms Dai to have been aware of her father’s living arrangements when visiting China.

6. In short, the Minister’s position was that there was no irrationality or illogicality in the Tribunal’s decision given that Ms Dai initially gave an unequivocal answer that Mr Dai stayed with his sister, then gave evidence described as a “series of backtracking”, and then completely “turn[ed] it around” in the response to the s.359A letter.

7. That is, the Minister submits that there is no illogicality or irrationality in the Tribunal not being persuaded by Ms Dai’s “ultimate” evidence, and relying on her evidence given at the hearing, particularly her “initial answer”. Further, there was no illogicality or irrationality in finding that Ms Dai’s evidence was not supportive of Mr Dai’s case.

8. I agree with Mr Dai that the Tribunal’s decision is affected by jurisdictional error, including in the way explained by his counsel at the hearing before the Court.

9. First, at [78] (at CB 477) of its decision record, the Tribunal found “[i]n general”, “Ms Dai’s evidence to be vague and tentative and does not consider her evidence reliable”. This finding may be said to have been reasonably open to the Tribunal to make, given the state of Ms Dai’s evidence as set out above.

10. However, the Tribunal did not explain, in light of the finding that her evidence was not reliable, why it “placed weight” on one part of her evidence to find adversely to Mr Dai’s and Ms Deng’s evidence as to where Mr  Dai stayed in September 2014 ([73] at CB 476 to CB 477).

11. The finding at [78] (at CB 477) of its decision record, that Ms Dai’s evidence was not reliable, is not qualified. As the Tribunal said, its finding of unreliability “generally” arose from all of Ms Dai’s evidence.

12. The Tribunal has not explained this inconsistency in its findings. In that light, either one of the findings at [73] (at CB 476 to CB 477) and [78] (at CB 477), when compared with the other, is, in context, irrational or illogical. That is, they cannot logically or rationally stand together.

13. Both findings at [73] (at CB 476 to CB 477) and [78] (at CB 477) were important aspects of the reasons that the Tribunal affirmed the delegate’s decision. Thus it can be said that the Tribunal’s decision was, as a whole, illogical and irrational (SZMDS and SZTAP v Minister for Immigration and Border Protection [2015] FCAFC 175; (2015) 238 FCR 404).

14. Second, the Minister’s written submissions made reference to the s.359A letter, and the response to it. The Minister submitted that it was open to the Tribunal not to accept Ms Dai’s explanation in her letter of clarification (at CB 431) addressing the concerns arising from her evidence at the hearing.

15. In his submissions before the Court, the Minister emphasised that in her oral evidence at the hearing, Ms Dai initially said that Mr Dai “stayed at my aunty’s” (in context, not with Ms Deng). The submission was that it was reasonably open to the Tribunal to accept this evidence and prefer it to the subsequent explanation set out in her letter of clarification in response to the concerns in the s.359A letter.

16. It is the case, as the Minister submits, that the Tribunal was entitled to accept, or reject, evidence as it sees fit, and with reasons given, in the proper exercise of its jurisdiction.

17. However, in the current case, the Minister did not refer to, nor is there probative evidence before the Court as to why the Tribunal decided to “place weight” on one part of Ms Dai’s evidence, and reject as a general finding, her evidence as being “vague, tentative and unreliable”. That is, it leaves unanswered the question as to why the Tribunal rejected her “explanation” for her oral evidence, but nonetheless, and otherwise, relied on part of that oral evidence.

18. The absence of an explanation leaves the finding at [73] (at CB 476 to CB 477) of the Tribunal’s decision record without a probative basis to support it.

19. Third, it may be that the Tribunal “placed weight” on Ms Dai’s “initial evidence” (that Mr Dai stayed with his sister when in China on the relevant occasions), because as subsequently noted by the Tribunal, Mr Dai had not registered to stay in Ms Deng’s home until after the delegate’s decision.

20. However, this directs attention to the actual evidence given by Ms Dai at the hearing, and the context in which it was given.

21. Ms Dai gave evidence by telephone (see T1). There were difficulties with the telephone connection ([member]: “sorry, you’re breaking up” (T2.8)). The Tribunal’s “critical” question (and Ms Dai’s answer), was put just before the Tribunal member noted the “breaking up” of the connection. The complete exchange is as follows (T2.24 to T3.22):

    “[Member] And what about your dad? Where did he stay?

    [Ms Dai]: He stayed at my auntie’s, and then he would go visit [inaudible]

    [Member]: Sorry, you’re breaking up.

    [Ms Dai]: Hello, can you hear me?

    [Member]: Sorry, you’re just breaking up.

    [Ms Dai]: Um so did you hear what I just said?

    [Member]: You said that you stayed in a hotel with your boyfriend. Sorry did you say your ex-boyfriend?

    [Ms Dai]: Oh no no, we’re, he’s now my fiancée.

    [Member]: Okay, so your now fiancée.

    [Ms Dai]: Yep.

    [Member]: And you said that your dad stayed at your auntie’s?

    [Ms Dai]: Well my auntie always has room for him if he needed to stay but like he could be staying for [inaudible] because when I stay at the hotel, I don’t know the whereabouts of my dad. He could stay at my auntie’s or he could stay at Auntie Yun’s.

    [Member]: So are you saying you call your step mother an auntie?

    [Ms Dai]: Ah that’s how I call, like I don’t, I can’t really call my, I don’t really call anyone that’s my dad’s wife, my mum because I call my mum, my mum. So I hope that can be understood as just a personal preference.

    [Member]: So what do you call his current wife?

    [Ms Dai]: Sorry?

    [Member]: What do you call his current wife?

    [Ms Dai]: Auntie Yun. As I would with any of his wives, except for my mum, ‘cause I just call my mum my mum. Just out of respect for my mum.

    [Member]: So I’m just trying to clarify, you were staying in a hotel, I’m just not sure where he was staying?

    [Ms Dai]: He was, yeah well because I know he has a place to stay either at my auntie’s or Auntie Yun’s.

    [Member]: Sorry so at he’s own sister’s or at his wife’s? Is that what you’re saying?

    [Ms Dai]: Yeah either. Either or. I don’t really keep track of where he stays ‘cause I’m with, I would be out with my fiancée at the time, so we would be out doing our own thing.”

22. The Tribunal’s question gave no specific time reference. It may be reasonable to take the view that the Tribunal’s “critical” question was put in the context of the preceding question. This was to ask where Ms Dai was staying on her visit. That is, the “critical” question was put in the context of where Mr Dai stayed at the time Ms Dai visited China. The purpose, presumably, was to elicit whether she was in a position to know where Mr Dai stayed at the time of Ms Dai’s visit to China.

23. But even in this instance, Ms Dai after confirming her “boyfriend’s” status and, in answer to a question from the Tribunal, sought to explain her answer to the “critical” question. In my view, when the relevant exchange between the Tribunal member and Ms Dai is fairly read, the explanation for her initial response (that her father, Mr Dai, stayed with her aunty (Mr Dai’s sister)) was given at the hearing. This “explanation” was then confirmed in the letter of clarification (written response) to the s.359A letter. The entire exchange following immediately after the disruption to the telephone connection commenced with a question from the Tribunal member (see above at [75]). Ms Dai explained that her answer to the “critical” question was that her “aunty” (Mr Dai’s sister) always had a room for Mr Dai, but she did not actually know where her father stayed.

24. I do not agree with the Minister that it was not until the letter of clarification in response to the s.359A letter that Ms Dai attempted to provide an explanation for her earlier oral evidence.

25. Ms Dai’s oral evidence when read fairly, in context, was that Ms Dai did not “really ask [her] dad about his relationships”, which was explained on the basis that “[they are] grown adults” (see T2.13).

26. In my view, it is clear that Ms Dai’s oral evidence, as a whole, was an expression of her belief, and was based on certain assumptions. The statement that Mr Dai stayed with his sister was put in context by the general statement that Ms Dai’s aunty (Mr Dai’s sister) “always has a room for him” (T3.4).

27. It must be said, in the circumstances outlined, that the Tribunal was selective in its focus on one particular answer to one question. The failure to properly understand that exchange in the entirety of Ms Dai’s evidence at the hearing is a strong element in accepting Mr Dai’s counsel’s submissions that the Tribunal’s finding (at [73] at CB 476 to CB 477) lacked a probative basis. Further, this finding was a key part of the Tribunal’s reasoning which led to the ultimate conclusion in its decision. That submission must be accepted.

28. In all, ground one is made out. There is no reason not to grant relief on this basis. However, as the parties also made submissions on ground two, it is appropriate to set out the consideration of those submissions.

29. Ground two of the amended application directs attention to [86] (at CB 479) of the Tribunal’s decision record which is as follows:

    “The review applicant demonstrated little understanding of the visa applicant’s financial circumstances at the hearing, saying that he does not ask her about such matters as he does not feel comfortable doing so. He was unsure about the ownership of the apartment that she lives in and unaware that she owns an investment property. The visa applicant stated that her investment property is not a relevant asset given it was acquired before the parties were married. The Tribunal would have expected the parties to have openly discussed their ownership of their respective assets and to have made plans for those assets given the length of their relationship. The visa applicant’s evidence indicated that she considers her investment property to be irrelevant to the parties’ relationship or plans. The Tribunal has formed the view that this shows a lack of commitment to the relationship on her part.”

30. The assertion of error was again that the decision was illogical or irrational for reason of what is set out at [86] (at CB 479), or in the alternative, that there was no evidence to support the finding that Ms Deng had a lack of commitment to the relationship.

31. Before the Court, Mr Dai also directed attention to the evidence relevantly given by Ms Deng at the hearing. The transcript at page 8, shows Ms Deng was questioned about an investment property that she owned in China. Her evidence was as follows (T8.23 to T9.13):

    “[Member]: And do you own any other property in China?

    [Ms Deng]: Yes.

    [Member]: What else do you own?

    [Ms Deng]: I have a villa.

    [Member]: Where is that?

    [Ms Deng]: In Haikou City.

    [Member]: And is that being rented out?

    [Ms Deng]: No it’s not rented.

    [Member]: So is it vacant?

    [Ms Deng]: Yes.

    [Member]: Have you ever discussed that property with your husband?

    [Ms Deng]: As to that property, we have discussed about that, but I need to spend some money because there is no renovation on that property. Renovation or internal decoration for that property.

    [Member]: So how long ago did you buy it?

    [Ms Deng]: Several years ago.

    [Member]: So since your marriage or before your marriage?

    [Ms Deng]: Should be purchased before marriage.

    [Member]: And as far as you remember, you have discussed it with your husband?

    [Ms Deng]: It cannot be counted as a discussion, because that property is the asset before marriage and my husband not [inaudible] much about it.”

32. Mr Dai’s argument before the Court was that there was no evidence provided by Ms Deng on which to base the finding that she considered the investment property to be irrelevant to the relationship with Mr Dai. This finding is important because it was part of the reason for the finding that there was a lack of commitment to the relationship on Ms Deng’s part.

33. When regard is had to the relevant exchange in the transcript of the hearing the ground is not made out.

34. In my view, a fair reading of Ms Deng’s evidence is that the investment property was acquired by her prior to her marriage, and on this basis, she did not discuss it with Mr Dai.

35. On a fair reading of the Tribunal’s relevant finding, the Tribunal saw the fact that Ms Deng’s evidence (that an asset held by her was not relevant to the relationship between her and her husband) was inimical to a genuine spousal relationship. That is, Ms Deng’s evidence that she did not, and did not have to, tell her husband about the asset, was inconsistent with a genuine spousal relationship.

36. While minds may differ, this was a reasonable conclusion for the Tribunal to reach on the evidence before it (SZMDS at [131]). Further, there was evidence before the Tribunal probative of its finding at [86] (at CB 479) of its decision record. That is, Ms Deng’s own evidence to the Tribunal.

37. Ground two is not made out.

38. However, jurisdictional error is revealed by ground one. It is appropriate to grant the relief that the applicants seeks. I will make the appropriate orders.

I certify that the preceding ninety-two (92) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date:  28 March 2018