DPZ17 v Minister For Immigration and Anor (No.2)

[2018] FCCA 771

FEDERAL CIRCUIT COURT OF AUSTRALIA

DPZ17 v MINISTER FOR IMMIGRATION & ANOR (No.2) [2018] FCCA 771

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Partner (Provisional) (Class UF) visa – repeated error by the Tribunal in relation to the place of travel and marriage of the applicant – whether the repeated error is one that reflects the Tribunal not properly understanding the applicant’s claims in assessing the criteria of reg 1.15A of the Migration Regulations 1994 – jurisdictional error identified – writs issued.

Legislation:

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

Migration Regulations 1994, reg.1.15A

Applicant: DPZ17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2544 of 2017

Judgment of: Judge Street

Hearing date: 21 March 2018

Date of Last Submission: 21 March 2018

Delivered at: Sydney

Delivered on: 21 March 2018

REPRESENTATION

The Applicant appeared in person.

Solicitor for the Respondents: Mr J McGovern
Clayton Utz

ORDERS

1. A writ in the nature of certiorari is issued calling up the record of the Administrative Appeals Tribunal and quashing the decision made on 6 July 2017.

2. A writ in the nature of mandamus is issued requiring the Administrative Appeals Tribunal to determine the application of review according to law.

3. The first respondent to pay the applicant the cost of the applicant’s filing fee and any other solicitor’s costs and expenses reasonably incurred in the conduct of these proceedings.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2544 of 2017

DPZ17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 6 July 2017 affirming a decision of the delegate not to grant the applicant a Partner (Provisional) (Class UF) visa.

2. The review applicant (“the applicant”) is the sponsor of the first visa applicant, to whom she was married on 19 January 2014 in Conakry, Republic of Guinea. The applicant was born in Monrovia, Liberia. The first visa applicant was born in Conakry, Guinea. 

3. In the course of the applicant’s submissions, the applicant identified that the Tribunal had erroneously identified the place of marriage and travel as being Liberia in the Tribunal’s reasons. Whilst that is not an error that is identified in the grounds of the application, it is a matter that the Court has taken into account, consistent with the explanation given to the applicant that the Court would consider whether the Tribunal’s decision was unlawful or unfair.

4. The first respondent has correctly drawn to the Court’s attention that the Tribunal did correctly identify the place of marriage in determining whether the parties were validly married, at paragraph 10 of its reasons.  However, thereafter, it is apparent in the Tribunal’s reasons that the Tribunal has made an error in relation to the place of travel and marriage in paragraph 12(a) referring to Liberia rather than Guinea, in paragraph 15 referring to Liberia rather than Guinea, in paragraph 28 referring to Liberia rather than Guinea, and in paragraph 41 referring to Liberia rather than Guinea.

5. The first respondent properly accepts the existence of the errors but seeks to argue that in the context of the Tribunal’s reasons, the errors were not material and do not give rise to a jurisdictional error. Whether the errors give rise to materiality amounting to a jurisdictional error in misunderstanding the applicant’s claims in respect of the genuine spousal relationship, turns on the Court taking into account the whole of the reasons of the Tribunal.

6. Materially, in the present case the relevant errors arise twice under the consideration in relation to whether the requirements of the spousal relationship are met. The error next arises under the “Nature of a Household.” A further error arises in relation to the “Commitment” of the parties to each other and at paragraph 41 of the Tribunal’s reasons, the error is repeated twice. In paragraph 42 of the Tribunal’s reasons, in relation to the commitment of the parties to each other, there is also a reference to an analysis of telephone country codes to different countries, and a reference is made to Guinea, Liberia and China. The phone records were given limited weight, as no substantiating evidence was provided, in relation to these numbers being the first visa applicant’s. Nonetheless, paragraph 42 identifies the Tribunal taking into account a place to which telephone calls were made, in the context of erroneously identifying the place of marriage, and place of travel, on the 2013/2014 trip.

7. It is also apparent from the Tribunal’s reasons that the Tribunal understood that the second visa applicant, being the brother of the first visa applicant, had moved with the first visa applicant to Bamako, Mali and that subsequently, the first visa applicant got a job in a gold mine in Siguiri, in the Republic of Guinea where, at the time of the Tribunal hearing, he was found to be working.

8. This was a case where the Tribunal identified and has placed no negative weight on the applicant not travelling to West Africa, to see her husband during the Ebola outbreak. The Tribunal also referred in 2015 to the visa applicant living in Liberia and that in late 2015, he moved to Mali for work, and that the first and second visa applicants now live in Siguiri in Guinea.

9. Whilst the first respondent drew attention to the adverse reasoning of the Tribunal in relation to the relevant criteria contained in reg 1.15A of the Migration Regulations 1994 (“the Regulations”) in satisfying s 5F of the Act, the Court is required to determine the materiality of the error in the present case.

10. Whilst the Tribunal did correctly identify the place of marriage in paragraph 10 of its reasons, it is apparent that in assessing the relevant criteria under reg 1.15A of the Regulations, the Tribunal has erroneously treated the parties as having married at the place which was Liberia, a different country to where in fact, the marriage took place. In assessing the criteria of reg 1.15A of the Regulations, it appears that the Tribunal has assumed that the travel that took place in 2013/2014 was to Liberia, and not to Guinea.

11. In all the circumstances, I find that the repeated errors were a material error. I find the repeated errors in the present case reflect the Tribunal not properly understanding the applicant’s claims in assessing the criteria of reg 1.15A of the Regulations. I find that the repeated errors in relation to the place of travel and the place of marriage in the present case is a jurisdictional error. 

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  10 April 2018