Do v Minister for Immigration

[2019] FCCA 727

FEDERAL CIRCUIT COURT OF AUSTRALIA

DO v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 727

Catchwords:
MIGRATION – Application for spousal visa – finding that no genuine spousal relationship existed – tribunal assessed evidence and made clear findings that no genuine spousal relationship existed as at the time of the making of the visa application – application dismissed.

Legislation:

Migration Regulations 1994 (Cth), rr.1.15A, 820.211

Cases cited:

He v Minister for Immigration and Border Protection & Anor (2017) 255 FCR
41

SZUXN v Minister for Immigration and Border Protection (2016) 69 AAR 210

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

Applicant: THI THUY TRANG DO

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 1003 of 2017

Judgment of: Judge Egan

Hearing date: 21 March 2019

Date of Last Submission: 21 March 2019

Delivered at: Brisbane

Delivered on: 26 March 2019

REPRESENTATION

Counsel for the Applicant: Mr L. Boccabella

Solicitors for the Applicant: T Lawyers

Counsel for the Respondent: Ms S. Forder

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. The application for review filed on 9 October 2017 be dismissed.

2. The applicant pay the first respondent’s costs of and incidental to the application for review fixed in the amount of $7,467.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 1003 of 2017

THI THUY TRANG DO

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a female citizen of Vietnam. She was born in 1990. She first arrived in Australia in September 2012 on a student visa, enrolling to study English and commerce. She ceased studying in October 2014. [1]

   [1]     [13] of Tribunal Reasons.

2. The sponsor arrived in Australia in October 2006 with his three (3) brothers. He was sponsored by his aunt following the death of his parents in Vietnam. He is an Australian citizen. The sponsor was previously married in Brisbane in January 2011. He had sponsored his former wife on a partner visa in February 2011. That marriage ended in divorce which was held to have been finalised on 27 September 2014. [2]

   [2]     [12] of Tribunal Reasons.

3. The applicant claimed that she met the sponsor at a party in October 2013. It was recorded that the applicant was working as a nail beautician at the time. She was presumably also studying. The applicant claimed that she moved in with the sponsor in January 2014, and that she became pregnant to the sponsor in 2014. She terminated the pregnancy on 1 July 2014 at the insistence of the sponsor. The parties married in Australia on 3 October 2014.

4. On 30 October 2014 the applicant lodged a combined application for a Temporary Partner Visa and a Partner (Residence) (Class BS) (Subclass 801) Visa (Permanent Partner Visa).

5. On 22 September 2016 the delegate refused to grant to the applicant the visas applied for. The delegate refused to grant the visas on the basis that the applicant did not satisfy the criteria as set out in Clause 820.211 (2)(a) of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”).

6. On 27 September 2016 the applicant lodged an application for review of the delegate’s decision before the Administrative Appeals Tribunal (“the AAT”).

7. On 12 September 2017 the AAT affirmed the decision of the delegate.

8. On 9 October 2017 the applicant filed an application for review of the decision of the AAT.

9. The applicant’s grounds for review are as follows:

   “1. The tribunal failed to properly conduct a review for the purpose of implementing Part 5 and/or ss 348 and 349 of the Migration Act 1958;

   2. Thetribunal made an error of law through not properly applying and interpreting cl. 820.211(2)(a) of Schedule 2 to the Migration Regulations 1994

   3. The tribunal failed to properly interpret and apply, Reg. 1.15AA of the Migration Regulations 1994 and/or 5F of the Migration Act 1958;

   4. The tribunal’s decision was an improper exercise of power

   5. The tribunal failed to take relevant considerations into account.

   6. The tribunal took irrelevant considerations into account

   7. The tribunal’s decision was unreasonable.

   8. The decision was otherwise unlawful.”

10. Clauses 820.211(1) and 820.211(2) relevantly provide as follows:

    “820.21--Criteria to be satisfied at time of application

    820.211  

       (1)  The applicant:

    (a)  is not the holder of a Subclass 771 (Transit) visa; and

    (b)  meets the requirements of subclause (2), (5), (6), (7), (8) or (9).

    (2)  An applicant meets the requirements of this subclause if:

    (a)  the applicant is the spouse or de facto partner of a person who:

    (i)  is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and

    (ii)  is not prohibited by subclause (2B) from being a sponsoring partner; and

    …”

11. For the purposes of considering whether a person is a spouse under cl.820.211(2)(a) of the Regulations, a Court is required to have regard to the provisions of Reg. 1.15A of the Regulations. Reg.1.15A provides as follows:

    “Spouse

    (1) For subsection 5F(3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5F(2)(a), (b), (c) and (d) of the Act exist.

    (2)  If the Minister is considering an application for:

    (a)  a Partner (Migrant) (Class BC) visa; or

    (b)  a Partner (Provisional) (Class UF) visa; or

    (c)  a Partner (Residence) (Class BS) visa; or

    (d)  a Partner (Temporary) (Class UK) visa;

    the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).

    (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 people 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.

    (4) If the Minister is considering an application for a visa of a class other than a class mentioned in subregulation (2), the Minister may consider any of the circumstances mentioned in subregulation (3).”

12. The applicant asserted that the Tribunal had failed to properly consider all of the circumstances of the alleged relationship between the applicant and the sponsor. Mr Boccabella of Counsel submitted on behalf of the applicant that in some respects the Tribunal was wrong in some of its findings, [3] and that otherwise the Tribunal failed to make necessary findings which justified its refusal of the application for review based on its not being satisfied that the relevant criteria under cl.820.211(2)(a) had been met as at the time and date of the making of the application for the visas.

    [3]     For example the finding in paragraph [24] of the Tribunal reasons relating to there being no

13. The applicant relied upon He v Minister for Immigration and Border Protection & Anor (2017) 255 FCR 41 at [76] per Sipois, Kerr and Rangiah JJ where it was said:

    “[76] In our opinion, the requirement that the Tribunal “consider” the circumstances in reg. 1.15A(3) means that the Tribunal is required to make findings upon each of the prescribed matters numbered with Roman numerals. The nature of these specific matters is such that each of them poses, in effect, a question or questions for the Tribunal. For example, in respect of “the nature of the household”, the Tribunal must ask:

    (i) whether there are children and whether there is any joint responsibility for their care and support;

    (ii) what the living arrangements of the persons are; and

    (iii) whether and to what extent there is sharing of the responsibility for housework.

    The regulation poses these questions in order to ensure that the Tribunal takes into account particular circumstances of the marriage as part of the active mental process involved in giving proper, genuine and realistic consideration to the prescribed matters. The legislative intention must be that these questions will be answered, not merely thought about. They must be answered so that the circumstances identified by the answers are included in the evaluation of whether there is a “married relationship”. In some cases, the Tribunal’s answer may be that there is no material, or insufficient material, to be able to form a conclusion on a prescribed matter: cf Paerau at [27], [69] and [119]. However, there must be an answer, or, in other words, a finding, even if the finding is that no conclusion can be reached upon the matter.”

14. Counsel for the applicant submitted that the Tribunal misapplied or misinterpreted the duty imposed upon it pursuant to each of the sub-paragraphs of reg.1.15A(3) of the Regulations, and also pointed to provisions of the transcript which he submitted constituted evidence relating to some of the adverse findings made by the Tribunal in respect of such sub-paragraphs.[4]

    [4]     Page 4 of applicant’s outline of submissions.

15. Counsel for the first respondent, Ms Forder, submitted that the Tribunal had appropriately addressed the evidence before it in respect of each of the reg. 1.15A(3) sub-paragraphs, and that it had made factual findings which were not amenable to judicial review. Counsel pointed to the fact that the Tribunal had set out, at [17] – [20] of its reasons, the matters which it had to take into account for the purpose of deciding whether the applicant was relevantly a “spouse” or not.

16. At [21] – [25] of its reasons, under the heading “Financial aspects of the relationship”, the Tribunal found that it was “… not satisfied that the parties had pooled their finances commensurate with being in a committed spousal relationship at the time of the application”. The applicant pointed to the factual error in [24] of the reasons relating to the erroneous finding that there was no evidence of joint liabilities in support of the submission that the Tribunal therefore committed a jurisdictional error.

17. At [26] – [31] of its reasons, under the heading “Nature of the household”, the Tribunal at [31] held that it was “not satisfied, on the evidence provided, in particular the sponsor’s demands for rent from the applicant, that the parties established and managed a household as a genuine spousal couple”. Counsel for the applicant submitted that such finding did not properly apply reg. 1.15A(3)(b) because it failed to make any finding limited to the time of the making of the application for the visas, and further that it failed to consider other factors concerning the sponsor’s siblings which were submitted to be relevant as to the question as to why the sponsor had not wanted to set up a separate household with the applicant away from such siblings.

18. At [32] – [38] of its reasons, under the heading “Social aspects of the relationship”, the Tribunal found that the parties were recognised by friends and family as having been in a relationship and as having been married.

19. At [39] – [45] of its reasons, under the heading “Nature of persons’ commitment to each other”, the Tribunal dealt with issues relating to joint bank accounts and family violence alleged by the applicant to have been perpetrated upon her by the sponsor. At [45] it said “The Tribunal is not satisfied, from the information and evidence provided, that the parties provided each other with companionship and emotional support commensurate with being in a genuine spousal relationship, and the Tribunal is not satisfied that the sponsor viewed the relationship as long term”. The applicant also referred to demands for money made upon her by the sponsor. The applicant submitted that the question of domestic violence had not been considered by the Tribunal because it had found that there was no genuine spousal relationship as at the date of making the application for the visas. The applicant submitted that necessary findings under this heading were not made by the Tribunal and that that had resulted in the Tribunal having committed jurisdictional error.

20. At [46] – [48] of its reasons, under the heading “Other relevant considerations”, the Tribunal referred to a support letter provided by the applicant’s psychologist. At CB 246 -248 there appears a statement from one Ms Borges who is a psychologist. At paragraph [10] of such statement it was recorded that the applicant had fallen pregnant early on in the relationship with the sponsor, but that the sponsor didn’t want the child, pushing the applicant for an abortion which occurred on 1 July 2014. At paragraph [12] of the statement it was recorded: “she told me she felt like the only one planning for the wedding and in the end, they only signed papers due to lack of funds in October 2014”. The latter statement from the psychologist, at the least, suggests that before the parties’ marriage on 3 October 2014, and well before the making of the application for the visas on 30 October 2014, the relationship between the applicant and the sponsor was poor.

21. The Tribunal, at [49] – [54] of its reasons, after recording that it had weighed up all evidence both for and against the proposition that the applicant and the sponsor were in a genuine relationship before and up to the time of the making of the visa applications, found that at the time the visa applications were made, there was no such genuine relationship.

22. Counsel for the first respondent conceded that the Tribunal could have been more specific in its analysis of the facts before it, such that some analysis of pre-application date evidence could have been contrasted with post-application date evidence. It was submitted, however, that that did not constitute jurisdictional error.

23. Counsel for the applicant placed reliance upon [82] – [83], [85] and [87] of He v Minister for Immigration and Border Protection & Anor where it was said:

    “[82] The Tribunal’s reasons were not structured in a manner that formulaically addressed each of the relevant matters in turn, but they did not have to be: see Zhang at [20]. Further, as Charlesworth J said in Singh at [20], the impressionistic and evaluative nature of the Tribunal’s task must be taken into account when drawing implications from its reasons, and, further, such reasons are not to be construed minutely and finely with an eye attuned to the perception of error.

    [83] As to whether the Tribunal made findings upon the extent of any pooling of financial resources, the Tribunal discussed Ms He’s and Mr Xu’s claims to have an intertwining of their financial affairs, finding that they had a joint bank account. The Tribunal referred to what it called “curious financial transactions”, including a withdrawal by Mr Xu of $21,000 in cash shortly after Ms He was granted a provisional partner visa. The Tribunal said that the financial arrangements appeared to be consistent with a scenario where Mr Xu was paid money for his part in the visa application, but went on to say that the financial transactions when taken in isolation did not prove that the relationship was contrived. The Tribunal must be understood to have concluded that it was unable to decide whether the intertwining of financial affairs was designed to ensure that Mr Xu would be paid for a sham marriage. The Tribunal also mentioned some aspects of the evidence relevant to the pooling of financial resources which it did not make findings upon. However, the Tribunal was not required to refer to or make findings upon every piece of evidence: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 236 FCR 593; [2003] FCAFC 184 at [46], Minister for Immigration and Border Protection v Truong [2016] FCAFC 54 at [80], Yusuf at [9]-[10], [77]. Rather, it was required to make findings upon the matters prescribed in reg 1.15A(3). In our opinion, the Tribunal’s reasons demonstrate that it did make findings upon, and therefore considered, the extent of the pooling of financial resources, as was required under reg 1.15A(3)(a)(iii).

    …

    [85] It is true that the Tribunal set out no express finding as to whether Ms He and Mr Xu were cohabiting at the time of the decision. However, an inference is available from the Tribunal’s reasons read as a whole that the Tribunal did make such a finding upon this matter as part of its mental process in making its decision. As we have said, the Tribunal rejected the evidence of Ms He and Mr Xu that they had cohabited throughout their marriage. The appellants advanced no case that Ms He and Mr Xu had lived together for a time, and then separated for a time, but had resumed living together by the time of the hearing before the Tribunal. The Tribunal was not required to speculate about that prospect. The Tribunal was not satisfied that there was ever a genuine and continuing marital relationship. The Tribunal must be understood to have found that it was not satisfied that they had lived together at any time. The Tribunal did consider Ms He’s and Mr Xu’s living arrangements as at the date of its decision as was required under reg 1.15A(3)(b)(ii).

    …

    [87] For these reasons, the appellants’ first ground of appeal must be rejected. That is not to say that we endorse the Tribunal’s written statement as a model of well-written reasons. As was said in Salahuddin at [23] and [31], where a statute requires that consideration be given to specified matters, it is preferable for a decision-maker to expressly refer to such matters.”

24. The Tribunal dealt with all relevant issues germane to the question of whether a genuine relationship existed or not. The fact that it did not in all respects confine its findings to matters up to the date of the making of the visa applications does not detract from the later clear findings in [49] – [54] of the Tribunal reasons that there was no genuine spousal relationship as at the time of the making of the applications. Paragraphs [49] – [54] inclusive of the reasons of the Tribunal are as follows:

    “[49]The Tribunal accepts that the parties were recognised by friends and family as having been in a relationship and as having married. The Tribunal accepts that the sponsor demonstrated commitment to the applicant before the time of application, when he followed her to Vietnam after the termination of her pregnancy, met her parents and agreed to marry her. The Tribunal has weighed this evidence in support of the parties being in a genuine relationship before the time of application against evidence that the parties were not in a genuine relationship at and after the time of application. The evidence that the sponsor was not in a committed long-term spousal relationship with the applicant includes: the sponsor's refusal to share his finances with the applicant; his refusal to establish a household with the applicant; his demands that the applicant pay rent; and his exclusion of the applicant from his social life and friendships. The Tribunal notes that at the time of interview with the Department, on 5 July 2016, during which the parties claimed to be in a genuine relationship, the sponsor was, according to the applicant and her supporting witnesses, in a relationship with another person whom he wanted to bring into the household, and that shortly after the interview he asked the applicant to leave the household.

    [50] In her statutory declaration signed on 17 July 2017 the applicant states: 'After we married on 3 October 2014 we prepared all our papers and lodged our Partner visa with the DIBP Brisbane Office on 30 October 2014'. The Tribunal accepts that the parties were in a relationship, but is not satisfied, having considered and weighed the evidence that this relationship ever developed into a genuine de facto or spousal relationship. The Tribunal acknowledges that the motive of obtaining a migration outcome does not preclude the possibility of a genuine relationship, but in this case finds that the evidence does not support the applicant's claim that the parties were in such a relationship at the time of application.

    [51] Having considered and weighed all the evidence, as discussed above, the Tribunal finds that the parties did not have a mutual commitment to shared life to the exclusion of others and were not in a genuine and continuing relationship.

    [52] On the basis of the above the Tribunal is not satisfied that the requirements of s.5F(2) are met at the time the visa application was made.

    [53] Therefore the applicant does not meet cl.820.211 (2)(a).

    [54] The applicant provided non-judiciaily determined evidence in support of her claim that she has suffered from relevant family violence. As the Tribunal does not accept that the parties were in a genuine spousal relationship at the time of application and at the time of this claimed family violence, it has not found it necessary to consider whether the applicant meets the time of decision criteria in cl. 820.221(3).

    [55] For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.

1. To the extent that the Tribunal made an erroneous finding in [24] of its reasons concerning there being no evidence of joint liabilities, such finding was not so material an error as to warrant a finding of jurisdictional error on the part of the Tribunal. It could not be said that such erroneous finding so infected the decision with error so as to constitute jurisdictional error.  In that respect, the court respectfully adopts what Wigney J said in SZUXN v Minister for Immigration and Border Protection[5] at [55], namely:

   [55] Nevertheless, allegations of illogical or irrational reasoning or findings of fact must be considered against the framework of the inquiry being whether or not there has been jurisdictional error on the part of the Tribunal:  SZRKT at 137 [148]. The overarching question is whether the Tribunal’s decision was affected by jurisdictional error: SZRKT at 137-138 [151]. Even if an aspect of reasoning, or a particular factual finding, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reasoning or finding of fact was immaterial, or not critical to, the ultimate conclusion or end result: Minister for Immigration and Citizenship v SZOCT (2010) 189 FCR 577 at 598-599 [83]-[84] (Nicholas J); SZNKO v Minister for Immigration and Citizenship [2013] FCA 123 at [113]. Where the impugned finding is but one of a number of findings that independently may have led to the Tribunal’s ultimate conclusion, jurisdictional error will generally not be made out: SZRLQ v Minister for Immigration and Citizenship (2013) 135 ALD 276 at 291 [66]; SZWCO at [64]-[67].

   [5] (2016) 69 AAR 210

2. Further it cannot be said that no other rational or logical decision maker could not have made the same decision. As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130]:

   130. “In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence.  In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person.  The same applies in the case of an opinion that a mandated state of satisfaction has not been reached.  Not every lapse in logic will give rise to jurisdictional error.  A court should be slow, although not unwilling, to interfere in an appropriate case.”

3. Neither could the decision be considered as legally unreasonable, or one lacking an evident and intelligible justification, as such respective concepts were considered in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76] where it was said:

   “[66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion.  That area resides within the bounds of legal reasonableness.  The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power.  Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker.  Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.

   …

   [76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust".  The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power.  Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at.  Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”

4. The applicant has not established jurisdictional error on the part of the Tribunal.

5. The application for review is without merit and is dismissed.

6. The Court will hear the parties as to costs.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Egan

Associate:  

Date:  26 March 2019

    evidence of joint liabilities where at CB 249 there was evidence of a joint tenancy agreement which
    pre-dated the date of the application for the visas.