Dumaraos v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FedCFamC2G 178
•22 October 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Dumaraos v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 178
File number(s): MLG 1464 of 2017 Judgment of: JUDGE EGAN Date of judgment: 22 October 2021 Catchwords: MIGRATION – application for Partner Visa – failure by Tribunal to actively intellectually engage as to whether or not the applicant and the sponsor were in a genuine spousal relationship or not – illogical findings constituting legal unreasonableness – application granted – decision quashed Legislation: Migration Act 1958 (Cth), ss 5CB, 5F
Migration Regulations 1994 (Cth), Sch 2, cl 820.211(2)
Cases cited: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
SVUXN v Minister for Immigration and Border Protection (2016) 69 AAR 210
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421
Division: Division 2 General Federal Law Number of paragraphs: 27 Date of last submission/s: 14 October 2021 Date of hearing: 14 October 2021 Solicitor for the Applicant: FCG Legal Counsel for the Applicant: Ms G.Costello QC Solicitor for the First Respondent: Mills Oakley Counsel for the First Respondent: Mr T.Reilly Second Respondent: Submitting appearance save as to costs ORDERS
MLG 1464 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2) BETWEEN: ZHENITH BOHOL DUMARAOS
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE EGAN
DATE OF ORDER:
22 OCTOBER 2021
IT IS ORDERED THAT:
1.The name of the First Respondent be amended to read “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
2.The Further Amended Application for Review filed on 17 August 2021 be granted.
3.A writ of certiorari issue causing the decision of the Administrative Appeals Tribunal made on 9 June 2017 to be quashed.
4.A writ of mandamus issue directed to the Administrative Appeals Tribunal requiring it to determine according to law the Applicant’s application for review of the Second Respondent’s decision, and that the matter be remitted to the Administrative Appeals Tribunal for rehearing.
5.For the purpose of the Administrative Appeals Tribunal again determining the Applicant’s application, that it be constituted by a different member than the member who handed down the decision on 9 June 2017.
6.The First Respondent pay the Applicant’s costs of and incidental to the Application for Review fixed in the amount of $7, 853.00.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE EGAN:
Introduction
The applicant is a citizen of the Republic of The Philippines who applied for a Partner (Temporary) (Class UK) Visa on 27 March 2015. The applicant’s partner sponsor identified in the visa application was one Christian Levancini, an Australian citizen.
In her visa application, the applicant recorded that she had a son (name withheld) who was a biological or adopted child of both the applicant and the sponsor. [1] The applicant was later to recant from such assertion in a statutory declaration dated 10 June 2016.
[1] Court Book (CB) p 6 – 7.
On 13 May 2016, the Department invited the applicant to comment on information relating to the relationship between her and the sponsor. In her 10 June 2016 statutory declaration, the applicant purported to outline her relationship history with the sponsor. [2]
[2] CB p 66 – 71, particularly at paragraph 2 where applicant recanted.
On 12 July 2016, the Department requested information from the applicant in relation to her claim of family violence committed by the sponsor. On 9 August 2016, the applicant provided a statement dated 3 July 2016 to the Department in response to this request. [3]
[3] CB p 80.
On 11 August 2016, a delegate of the Minister refused to grant the visa on the basis that the applicant was not in a spousal relationship with the sponsor and therefore did not meet cl. 820.211(2) of Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’). In such circumstances, the delegate determined that it was unnecessary to assess the applicant’s family violence claim made under r. 820.221(3)(b)(i) of the Regulations.
Clause 820.211(2) of Schedule 2 to the Regulations relevantly provided as follows:
“820.21 – Criteria to be satisfied at time of application
820.211
(1) …
(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
(c) the applicant is sponsored:
(i)if the applicant's spouse or de facto partner has turned 18--by the spouse or de facto partner; or
(ii) if the applicant's spouse has not turned 18--by a parent or guardian of the spouse who:
(A) has turned 18; and
(B) is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and
(d)in the case of an applicant who is not the holder of a substantive visa--either:
(i) the applicant:
(A)entered Australia as the holder of a Subclass 995 (Diplomatic) visa or as a special purpose visa holder who at the time of entry met the requirements of subclause (2A); and
(B) satisfies Schedule 3 criterion 3002; or
(ii)the applicant satisfies Schedule 3 criteria 3001, 3003 and 3004, unless the Minister is satisfied that there are compelling reasons for not applying those criteria.”
On 16 August 2016, the applicant lodged an application for review of the decision of the delegate with the Administrative Appeals Tribunal (‘the Tribunal’).
On 9 June 2017, the Tribunal affirmed the decision of the delegate.
Grounds for Review
At the hearing before the Court, the applicant relied upon a Further Amended Application for Review filed on 17 August 2021, the grounds of which were of follows:
“Grounds of application
1. The Tribunal’s decision is affected by jurisdictional error in that the Tribunal failed to give proper genuine and realistic consideration to the corroborating evidence provided by the Applicant as to the genuineness of the Applicant’s relationship with the sponsor, in circumstances where:
a. the Tribunal was obliged under reg 1.15A(2) and (3)(c)(ii) of the Migration Regulations 1994 (Cth) to consider the opinion of the Applicant’s friends and acquaintances about the nature of the relationship.
Particulars
i. The Tribunal ignored the evidence provided by way of statutory declaration from Yvete Maningat, who had been friends with the Applicant since the year 2000 from the Philippines and who gave evidence about her observations of the genuine relationship. The Tribunal found at [33] of its decision the “The Tribunal has no other evidence about the opinion of the relationship of Ms Dumaraos’ family and friends in the Philippines”, when in her statutory declaration, Ms Maningat said she was a friend “since year 2000 from Philippines”.
ii. The Tribunal ignored the written evidence of Michael Smith dated 9 April 2015 about the nature of the relationship. At [34] the Tribunal’s description of evidence from friends in Australia reveals that the Tribunal did not consider the evidence of Mr Smith as to his opinion as to the nature of the relationship.
iii. At [23] the Tribunal disregarded the evidence of friends about the relationship for the stated reason that they “have an interest in a positive migration outcome for her”.
iv. The Tribunal’s conclusion at [34] that the evidence did not support the finding that friends in Australia held the opinion that that couple was in a committed relationship shows the Tribunal did not properly, genuinely or realistically consider Michael Smith’s opinion that they were a very loving couple who had married to cement their relationship and commitment to each other.
2. The Tribunal breached s 359A by not giving to the applicant clear particulars of information in folio 145 that the Tribunal considered would be the reason or part of the reason for affirming the decision under review in circumstances where:
a. The information that would be the reason or part of the reason to affirm the decision under review included content in folio 145 which comprised:
i. information that an elderly Australian man who was a phoney husband had fathered the applicant’s child Caleb;
ii. information that the applicant had gained entry twice to Australia in the past 24 months with different men;
iii. information that the applicant had entered Australia in order to facilitate a prostitution ring;
iv. information that the applicant had not disclosed the existence of Caleb on her next visa application to Australia after returning to the Philippines in 2014;
v. information that the applicant was involved in sex work and involved in facilitating human trafficking; and
vi. adverse social media information from Facebook.
b. The Tribunal’s s 359A letter merely provided the following bullet point about the information in folio 145, which was not “clear particulars” of the information in folio 145 but was instead an abstract summary of an allegation, devoid of the particular information forming the allegation:
·“an allegation that the relationship between you and Mr Levancini was not genuine at any time and that you obtained a “phony husband” for the purpose of obtaining a visa and furthering a business involving sex work”.
c. In the circumstances here, to comply with s 359A, the Tribunal needed to provide particulars conveying the information in (i) to (vi) as well as the source of the material, namely an email from Kevin Richards and his wife that identified the applicant by name and stated her address and age.
3. The decision is legally unreasonable and/or the Tribunal reached a finding without a logical, rational or probative basis in that the Tribunal’s conclusion that the applicant did not have a genuine commitment to the marriage was based on a number of unsupportable reasons:
a. The Tribunal failed to consider corroborative material in an intellectually active way having found the applicant’s evidence not credible. The Tribunal’s finding that the applicant’s evidence was not credible was not itself a logical or rational basis on which to dismiss all of the corroborative evidence, which is what happened here.
b. The Tribunal found at [33] of its decision that it had “no other evidence about the opinion of the relationship of Ms Dumaraos’ family and friends in the Philippines”, when in her statutory declaration, Ms Maningat said she was a friend “since year 2000 from Philippines”.
c. At [23] the Tribunal unreasonably disregarded the credible evidence of friends about the relationship for the stated reason that they “have an interest in a positive migration outcome for her”.
d. At [34] the Tribunal globally rejected evidence from friends in Australia that they considered her in a genuine relationship but that Mr Levancini harassed her male friends and made inappropriate comments to a female friend. That description does not fit the evidence of one of the friends - Mr Smith.
e. The Member dismissed reports from independent psychologist Judith Withers and independent social worker Stephanie Rizel based on their non-presence at the hearing and that their reports were based on the applicant’s claims, simply dismissing the reports without considering their opinion as trained specialists.
f. The Tribunal found that Mr Levancini had a genuine commitment to the marriage but ignored the fact that while Mr Levancini alleged that the applicant was falsely claiming there was domestic violence, he did not claim she had always lacked commitment to the marriage.
g. The Tribunal’s conclusion at [34] that the evidence did not support the finding that friends in Australia held the opinion that that couple was in a committed relationship was illogical, given the evidence of Michael Smith that they were a very loving couple who had married to cement their relationship and commitment to each other.”
Consideration of Ground for Review
Ground 1 was a claim that the Tribunal had failed to give proper, genuine, and realistic consideration to the corroborating evidence provided by the applicant as to the genuineness of the relationship with the sponsor. Ground 3 was a claim that the decision of the Tribunal was legally unreasonable, in that its finding that the applicant did not have a genuine commitment to the marriage was based upon a number of unsupportable findings, in particular, the finding at [34] that the evidence did not support a finding that the applicant’s friends in Australia held the opinion that the applicant and her sponsor were in a committed relationship.
The word “spouse” was defined in s. 5F of the Migration Act 1958 (Cth) (‘the Act’) as follows:
“Section 5F Spouse
(1)For the purposes of this Act, a person is the spouse of another person if, under subsection (2), the 2 persons are in a married relationship.
(2)For the purposes of subsection (1), persons are in a married relationship if:
(a) they are married to each other under a marriage that is valid for the purposes of this Act; and
(b)they have a mutual commitment to a shared life as husband and wife to the exclusion of all others; and
(c) the relationship between them is genuine and continuing; and
(d) they:
(i) live together; or
(ii) do not live separately and apart on a permanent basis.
(3) The regulations may make provision in relation to the determination of whether one or more of the conditions in paragraphs (2)(a), (b), (c) and (d) exist. The regulations may make different provision in relation to the determination for different purposes whether one or more of those conditions exist.
Note:Section 12 also affects the determination of whether the condition in paragraph (2)(a) of this section exists.”
At [8] and [10] of its reasons, when considering the applicant’s claims, the Tribunal had regard to the definition of “spouse” under the provisions of s. 5F of the Act, and the definition of “de factor partner” under s. 5CB of the Act. The Tribunal said as follows:
“Whether the parties are in a spouse or de factor relationship
[8] Section SF of the Act defines "spouse". It provides that a person is the spouse of another where the two persons are in a married relationship. Persons in a married relationship must be married to each other under a marriage that is valid for the purposes of the Act and:
•there must be a mutual commitment to a shared life as husband and wife to the exclusion of all others;
•the relationship must be genuine and continuing; and
•the couple must live together or they must not live separately and apart on a permanent basis.
…
[10] The definition of "de facto partner" in section SCB of the Act requires, among other things, that the couple are not married.”
At [11] – [15] inclusive of its reasons, the Tribunal recorded the progress of the contact between the applicant and the sponsor from initially an online one in January 2013, to first personal contact in Australia in August 2013, to contact in the Philippines in or about September 2013 which culminated in a marriage proposal in October 2013. The applicant and the sponsor were noted as having married on 28 February 2015. The applicant and the sponsor separated in February 2016, at which time the sponsor withdrew his sponsorship for the applicant’s visa application.
It was admitted by the applicant that she had provided false information in her visa application. The Tribunal considered the applicant’s credibility at [17] – [24] inclusive of its reasons, where it was said as follows:
“[17] Mr Levancini did not provide evidence that he was committed to spending his life with Ms Dumaraos when she applied for the visa. However, he travelled frequently to the Philippines and was willing to take on legal responsibility as Caleb's parent. He referred to their relationship as "my marriage (of 11 months)" in a statement advising the Department withdrawing his sponsorship. The tone of the statement and a later finding by a court-that he had harassed Ms Dumaraos at her workplace demonstrates a level of anger that would be unlikely if he had contrived the relationship with Ms Dumaraos.
[18] On that evidence and his statements to the Department in support of the visa, the Tribunal accepts he was committed to sharing his life with Ms Dumaraos as husband and wife when she applied-for the visa. (Although, if accepted, Ms Dumaraos' evidence that he showed interest in relationships with other women throughout the marriage might suggest he did not intend the relationship to be exclusive of all others.)
[19] The Tribunal suggested to Ms Dumaraos that providing false information to the Department affected her general credibility and she said Mr Levancini told her it was the best thing to do. She said she accepted his advice because he was older and more experienced and aware of the law in Australia. Howev.er, Ms Dumaraos was neither a child nor otherwise vulnerable to his influence when she applied for the visa. It does not accept that her recent pregnancy made this "a very confusing time of her life" or excused her dishonesty in any way. Her contention that she believed it was lawful or appropriate to provide false information in her applications is entirely unbelievable. The Tribunal finds she was aware that she had to provide information that was true and correct with her visa application and that failing to do so is more than "an error of judgment". In its view, her suggestion that the responsibility for her dishonesty lies with Mr Levancini further affects her credibility.
[20] The Tribunal infers Ms Dumaraos was aware Mr Levancini was likely to make the Department aware of the correct information or had done so in relation to the citizenship application. In that context, her later disclosures to the Department do not positively affect her credibility.
[21] In the circumstances,' the Tribunal finds Ms Dumaraos gave false information to the Department because she is motivated to migrate to Australia. It accepts Ms Dumaraos presented herself to Mr Levancini as committed to sharing her life with him as his wife and provided him with the company and emotional support he would expect from that relationship. However, in the Tribunal's view, it is likely she was equally dishonest in her dealings with Mr Levancini as with· the Department. She is not a witness of truth and her oral and written statements do not convince the Tribunal that she saw the relationship as long-term when she applied for the visa.
[22] Ms Dumaraos provided a report from Ms Stephanie Rizel, Social Worker, and Ms Judith Whithers, psychologist. Both formed the opinion she was genuinely committed the relationship. However, the Tribunal does not find the evidence is convincing because they were prepared for this proceeding and their opinions were based on Ms Dumaraos uncorroborated self-reports. It gives them little weight.
[23] Ms Dumaraos also provided statements from a number of friends stating they believed the relationship was genuine. The Tribunal does not find these statements go to the nature of her commitment to Mr Levancini but, in any event, the Tribunal gives them little weight because they are from people who have an interest in a positive migration outcome for her.
[24] There is no other credible evidence available to support Ms Dumaraos's contention about the nature of her commitment to the relationship where she applied for the visa. The Tribunal is not satisfied she saw the relationship and long-term or that she was genuinely committed to sharing her life with Mr Levancini at the relevant time.”
Further to its consideration of the supporting evidence of a social worker, a psychologist and friends of the applicant as set out at [22] – [23] of its reasons, the Tribunal at [32] – [34] inclusive of its reasons, said as follows:
“Social aspects of the relationship
[32] The Tribunal notes the evidence of the social aspects of the relationship is relatively limited and includes a statement from Mr Levancini's mother containing false information that she met Ms Dumaraos in March 2013 and that she stayed for six weeks at her home in August 2013. However, it infers from Mr Levancini's commitment to the relationship that the social aspects of the relationship while living in Australia were typical of a married relationship. It finds that they jointly planned and undertook social activities and that he presented them to his friends and relatives in Australia as a married couple. This is consistent with photos provided to the Department and to the Tribunal and with statements (such as from his general practitioner advising they had attended the clinic together).
[33] Ms Dumaraos told the Tribunal she told her family about the relationship after she returned to the Philippines in late 2013 and that he stayed with them when he visited in 2013 and 2014. The Tribunal has no other evidence about the opinion of the relationship of Ms Dumaraos' family and friends in the Philippines.
[34] The evidence available from her friends in Australia is that they considered Ms Dumaraos was in a genuine relationship but that Mr Levancini harassed her male friends (because he was jealous) and that he made inappropriate comments to a female friend. The Tribunal accepts that those friends were aware of the marriage but the evidence does not support a finding that her friends in Australia held the opinion that they were in a committed relationship.”
Though it was submitted on behalf of the applicant that the Tribunal had ignored evidence as to the genuineness of the relationship given by friends and acquaintances of the applicant, the Tribunal did make some reference to the evidence of such friends and acquaintances in its reasons, saying at [34] that such friends “ … considered Ms Dumaraos was in a genuine relationship …” with the sponsor. To that extent, the supportive evidence of the applicant’s friends was not ignored.
Without having said why, though, the Tribunal found, at [34], that though it “ … accepts that those friends were aware of the marriage … the evidence does not support a finding that her friends in Australia held the opinion that they were in a committed relationship”.
At the least, the diametrically opposed findings of the Tribunal at [34] of its reasons were illogical. [4] The Tribunal’s finding that the applicant and the sponsor were not in a married relationship was likely influenced by its adverse credibility findings against the applicant, and other findings such as the evidence of the sponsor’s mother which falsely recorded that she had met the applicant in March 2013 when she had not. The Tribunal had a basis for making such findings, but the Court finds that such findings were but part of the factual matrix which had to be considered by the Tribunal when assessing whether or not the applicant and the sponsor were in a genuine spousal relationship or not. The Tribunal’s credibility findings were not dispositive of the questions to be determined by the Tribunal. That the applicant may have colluded with her sponsor to embellish the account of their relationship for the purpose of enhancing the visa application outcome does not necessarily mean that there was no underlying genuine spousal relationship in existence. Such a scenario is commonplace in visa applications of this type. It was the duty of the Tribunal to relevantly focus on the essential criteria which were required to be assessed when considering the issues before it.
[4] SVUXN v Minister for Immigration and Border Protection (2016) 69 AAR 210 per Wigney J at [52] –
To the extent that the Tribunal made the conflicting findings that it did at [34] of its reasons, the Court finds that it failed to actively intellectually engage in the decision making process required to be undertaken by it on a fundamental question for its determination, namely whether there was, or was not, a genuine spousal relationship between the applicant and the sponsor.
That the Tribunal on the one hand found that there was evidence that friends of the applicant supported the proposition that the relationship was genuine, yet on the other hand found that such friends did not hold the view that the applicant and the sponsor were in a committed relationship, lacked any logical, rational or probative basis. In such circumstances, the decision of the Tribunal was legally unreasonable, and lacked an evident and intelligible justification.
As was said by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76]:
“[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.”
The error on the part of the Tribunal was material. Its treatment of the evidence, as set out in [32] – [34] of its reasons, evidences a lack of active intellectual engagement with the applicant’s claims and the evidence adduced in support of such claims. Had it not made the illogical finding which it did concerning what friends and acquaintances of the applicant considered to be the genuineness of the applicant’s and the sponsor’s relationship, the Tribunal could realistically have made a different decision. [5]
[5] Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421, per Bell, Gageler, and
The Court also finds that the Tribunal’s relevant findings at [32] about the sponsor’s commitment to his relationship with the applicant, as well as its finding that the social aspects of the relationship were typical of a marriage relationship - in the sense that the applicant and the sponsor jointly planned and undertook social activities as a married couple - was inconsistent with its finding that there was no genuine spousal relationship. The Court finds that the Tribunal was illogical in so finding in the light of clear findings which were supportive of a genuine relationship.
The Court finds that the applicant has established jurisdictional error on the part of the Tribunal based on Grounds 1 and 3 of the Further Amended Application for Review.
In the light of the Court’s findings in respect of Grounds 1 and 3, it was unnecessary for the Court to consider the claims which arose under Ground 2 of the Further Amended Application for Review.
The decision of the Tribunal is quashed.
The Court will hear the parties as to costs.
I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Dated: 22 October 2021
[56].
Keane JJ at [45] and [46].
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