DUN16 and DUO16 v Minister for Immigration & Anor
[2019] FCCA 2591
•13 September 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| JAVED v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 2591 |
| Catchwords: PRACTICE & PROCEDURE – Application for extension of time in which to file judicial review application – consideration of factors. |
| Legislation: Migration Act 1958 (Cth), pt.5, Div.5, Part 7, ss.5F, 65, 357A, 359A, 359AA, 360, 368, 424A; 430,476 Migration Regulations 1994 (Cth), reg.1.15A, sch.2, c1.820.211, 802.221 |
Cases cited: ABV16 v Minister for Immigration & Border Protection [2017] FCA 184 Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630 Carrascalao v Minister for Immigration & Border Protection [2017] FCAFC 107; (2017) 252 FCR 352; (2017) 347 ALR 173 Jayasinghe v Minister for Immigration & Multicultural Affairs [2006] FCA 1700 Jess v Scott (1986) 12 FCR 187; (1986) 70 ALR 185 |
| Applicant: | ADNAN JAVED |
| First Respondent: | MINISTER FOR IMMIGRATION CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 39 of 2016 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 24 February 2017 |
| Date of Last Submission: | 24 February 2017 |
| Delivered at: | Perth |
| Delivered on: | 13 September 2019 |
REPRESENTATION
| Mr DV Blades | |
| Solicitors for the Applicant: | Munro Doig Lawyers |
| Counsel for the First Respondent: | Ms E Tattersall |
| For the Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
That the applicant’s application for an extension of time pursuant to s.477(2) of the Migration Act 1958 (Cth) in which to file the originating application be granted, and time for the filing of the originating application be extended to the actual time of filing.
That the name of the first respondent be amended to read “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
That a writ of certiorari quashing the decision of the second respondent made on 24 December 2015.
That a writ of Mandamus issued requiring the second respondent to re-hear the application for review made by the applicant on 22 August 2014.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 39 of 2016
| ADNAN JAVED |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
On 29 January 2016 the applicant lodged an application for judicial review (“Judicial Review Application”) pursuant to s.476 of the Migration Act 1958 (Cth) (“Migration Act”) seeking review of a decision of the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively) to affirm a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the then Minister for Immigration and Border Protection, now the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“Minister”) to refuse the applicant a Partner (Temporary) (Class UK) visa (“Partner Visa”) under s.65 of the Migration Act (“Protection Visa”). A copy of the Tribunal Decision dated 24 December 2015 is at Court Book (“CB”) 644-656.
Applicant for Partner Visa and Delegate’s Decision
The applicant filed an amended Judicial Review Application on 3 August 2016 in accordance with orders made by this Court on 7 June 2016. At hearing on 24 February 2017 the applicant sought leave to file a further amended Judicial Review Application dated 27 January 2017. The Court granted leave for the applicant to file and rely on the further amended Judicial Review Application (“Further Amended Judicial Review Application”) and the affidavit of Ms Rebecca Leigh Mercer-Gaunt sworn 31 January 2017.
The applicant, a citizen of Pakistan, lodged an application for a Partner Visa on 30 August 2013: Affidavit of Belinda Mellino affirmed 17 February 2017 (“Ms Mellino’s Affidavit”), Annexure BMM1. The applicant was sponsored by his wife, Marie Ann Baker (“Sponsor”): Ms Mellino’s Affidavit, Annexure BMM2.
On 6 August 2014 the Partner Visa was refused by the Delegate: CB 377-391. The Delegate was not satisfied that the applicant was the spouse of the Sponsor at the time of the Partner Visa application, and accordingly was not satisfied that the applicant met c1.820.211(2)(a) of Sch.2 (“cl.820.211(2)(a)”) of the Migration Regulations 1994 (Cth) (“Migration Regulations”).
On 22 August 2014 the applicant lodged an application to the Tribunal for review of the Delegate’s Decision: CB 392-393.
Tribunal Decision
In the Tribunal Decision, the Tribunal affirmed the Delegate’s Decision not to grant the applicant a Partner Visa.
In the Tribunal Decision the Tribunal also:
a)found that although the applicant and the Sponsor tried to give the appearance of a pooling of financial resources the parties maintained their own income and finances: CB 648 at [30];
b)found that the inconsistencies in the applicant’s evidence as to his finances goes to his credibility: CB 648 at [31];
c)accepted that the applicant and the Sponsor lived at the same property, but that the evidence was not consistent as to how the household tasks were divided: CB 649 at [38];
d)gave little weight to the statements provided as to the nature of the relationship between the applicant and the Sponsor: CB 650 at [56];
e)found that, at the time of Partner Visa application:
i)there was little recognition of the applicant and the Sponsor's spousal relationship: CB 650-651 at [57];
ii)the photographs submitted evidenced the limited social recognition of the applicant and the Sponsor: CB 650-651 at [57]; and
iii)it was not satisfied that the social aspects of the relationship evidenced a spousal relationship: CB 651 at [58];
f)did not accept that the Sponsor’s conversion to Islam and marrying according to Islamic law indicates a commitment to the relationship: CB 652 at [66];
g)found that it was not credible that the applicant would tell his family in Pakistan about his relationship with the sponsor but that his friends in Australia were not aware of the relationship until just prior to the marriage: CB 653 at [71];
h)found that it was not credible that the Sponsor would not introduce the applicant to her mother until their marriage: CB 653 at [72], and that it was unusual that the applicant would eat with his housemates rather than the Sponsor: CB 653 at [73];
i)found that the Sponsor had a substance abuse problem, and that the Sponsor’s substance abuse problem had been in existence since early September 2013: CB 653 at [74], and that the evidence indicated the applicant drew companionship from his friends rather than his wife: CB 654 at [76];
j)found the applicant’s evidence rehearsed and practiced, and that he had difficulty responding to off script questions: CB 653-654 at [75];
k)was not satisfied that the applicant and the Sponsor saw their relationship as long term, or drew emotional support and companionship from each other: CB 654 at [78]; and
l)in considering the applicant's evidence individually and cumulatively, was not satisfied that the applicant and Sponsor were in a genuine relationship at the time that the Partner Visa application was lodged and that the applicant therefore did not meet 820.211(2)(a): CB 654 at [79]-[80].
Extension of time application
The Tribunal Decision was dated 24 December 2015: CB 644. The date by which the Judicial Review Application ought to have been filed was the 28 January 2016 not the 29 January 2016. Section 477 of the Migration Act requires that if an application is not made within 35 days of the date of the Tribunal Decision an application for an extension of time must be made.
The applicant filed an affidavit of the applicant on 3 August 2016 (“Applicant’s Second Affidavit”) in support of the application for an extension of time, which also attached a copy of the Notification of Decision letter sent by the Tribunal to the applicant dated 5 January 2016.
The grounds for the extension of time application are as follows:
1. The Tribunal's decision was made on 24 December 2015 but was not notified to the applicant until 12 days later on 5 January 2016.
2. The 35 day time period for filing the application with the court expired on 28 January 2016.
3. The application was filed with the court on 29 January 2016, one day out of time.
4. It is necessary in the interests of the administration of justice to extend time due to: the Tribunal's delay in notifying its decision to the applicant; his promptness in seeking legal advice; the shortness of the applicant's delay in commencing proceedings and because the grounds of review have merit.
(Transcribed verbatim).
The applicant provided written submissions, simply reiterating the above grounds.
The Minister did not provide any written or oral submissions in opposition to the extension of time application.
The non-exhaustive list of factors to which regard may be had when considering extension of time applications are well settled: see Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344; (1984) 58 ALR 305; (1984) 7 ALD 315 (“Hunter Valley Developments”), and are as follows:
a)the extent of the delay;
b)the explanation for the delay;
c)the prejudice to the other party; and
d)the merits of the substantive application.
Extent of delay
In this case the delay was not significant, being only one day.
In Re Commonwealth; Ex parte Marks [2000] HCA 67; (2000) 75 ALJR 470; (2000) 177 ALR 491 (“Marks”) at [16] per McHugh J the High Court observed that:
… As the Judicial Committee of the Privy Council said in Ratnam v Cumarasamy, “[t]he rules of court must prima facie be obeyed”... In all but very exceptional cases, they should be rigidly applied when, as here, more than one year has elapsed between the decision and the commencement of proceedings in this Court.
In this case,the delay is absolutely minimal and does not weigh against the grant of the extension of time application.
Explanation for delay
It is generally recognised that the longer the delay the more persuasive an explanation needs to be in order to justify an extension of time: Jess v Scott (1986) 12 FCR 187; (1986) 70 ALR 185; FCR at 195 per Lockhart, Sheppard and Burchett JJ; Tran v Minister for Immigration & Border Protection [2014] FCA 533 (“Tran”) at [38] per Wigney J.
In SZMWH v Minister for Immigration & Citizenship [2009] FCA 879 (“SZMWH”) the Federal Court observed that the failure to provide an adequate explanation for the delay may, of itself, provide sufficient reason for the Court not to make an order extending time: SZMWH at [7] per Stone J; WZATA v Minister for Immigration & Anor [2016] FCCA 305 at [10] per Judge Lucev.
The applicant has provided an explanation in relation to the delay. The Applicant’s Second Affidavit states:
…
According to the Tribunal's Statement of Decision, the Tribunal's decision was made on 24 December 2015 (Christmas Eve), but the the decision was not notified to my then migration agent, Bonnie Durmic, until 5 January 2016. Annexed hereto and marked with the letters "AJl" is a true copy of the letter from the Tribunal to Ms Durmic dated 5 January 2016.
I do not know why the Tribunal only sent the notification letter on 5 January 2016 but it meant that the decision was only notified to Ms Durmic some 12 days later.
Ms Durmic told me about the decision on as soon as she received it on 5 January 2016. She also told me that I could only meet with her to discuss my options a week later as she was moving office.
I then met Ms Durmic on 12 January 2016, which was the soonest time I could see her, and I decided to proceed with a Federal Circuit Court application. However, because she was not a lawyer, she would not be able to help me. Instead she gave me the names of some lawyers I could engage.
A friend of mine also told me about another migration lawyer in Fremantle named Sam Hemachandra. I contacted Ms Hemachandra on 13 January 2016 to make an appointment, but she told me she was overseas at the time and could only see me on 19 January 2016.
When I met Ms Hemachandra on 29 January 2016, she told me that based on the materials she had seen, the judicial review application would have merit. She told me I had to lodge it within 28 day of being notified of the decision (which she calculated as 2 February 2016) because that was when my Bridging Visa would expire. She recommended that I lodge it before that time.
Ms Hemachandra helped me to prepare the Application and Affidavit. She completed the paperwork on 29 January 2016. As soon as the paperwork was ready, I immediately took it to the Court and lodged it because I did not want to leave it until the last minute (i.e. until 2 February 2016).
At all material times, based on the information provided to me by Ms Hemachandra, the latest time for filing the application was 2 February 2016, not 28 January 2016.
It now appears that I may have been only one day late in filing the Application in circumstances where I lost 12 days of time given the Tribunal's late notification of its decision.
In the circumstances, it would be in the interest of the administration of justice to extend the time.
(Transcribed verbatim).
The Court is prepared to accept that there was not insignificant delay of 12 days (not insignificant in the context of a 35 day time limitation) between the Tribunal Decision being delivered and the applicant receiving notification of the delivery of the Tribunal Decision. Given that the Tribunal Decision was delivered on 24 December 2015 and the notification was dated on 5 January 2016, the Court is prepared to infer that the delay is consequence of the traditional Christmas break enjoyed by Courts and Tribunals. The applicant was also further delayed by the fact that he had to find a lawyer, which he did, but when he found a lawyer, although the lawyer appears to have acted diligently preparing the Judicial Review Applicant, the lawyer miscalculated the time for filing, and whereas the applicant thought that he was filing four days before the due date, he was in fact filing one day after the due date. The applicant did, however, file the Judicial Review Application as soon as it was ready to be filed. The Court notes that there is a significant body of authority which suggests that ordinarily the default of solicitors (here the time miscalculation) ought not to be treated as it were the direct default of the client, and a litigant ought not necessarily suffer by reason of a mistake by their lawyer: see for example, Christie v Harvey & Hayward (1900) 2 WALR 146 at [105] per Hensman J; Hunter Valley Developments, FCR 351 per Wilcox J; Doyle v Gillespie (2010) 173 ACTR 66; [2010] ACTSC 21 at [53] per Refshauge J; Transport Workers Union v School Bus Contractors Pty Ltd [2011] FMCA 28; (2011) 201 IR 327; (2011) 246 FLR 430; (2011) 63 AILR 101-314 at [58]-[65] per Lucev FM (and the authorities there sighted in relation to variety of areas of the law).
In the above circumstances the Court is of the view that there is a satisfactory explanation by the applicant for the delay of one day, and that explanation weighs in favour of the extension of time application.
Prejudice
The Minister did not make any written or oral submissions in relation to prejudice. The absence of prejudice to the Minister in itself is not sufficient to warrant the grant of an extension of time: SZTRY v Minister for Immigration & Border Protection [2015] FCAFC 86 at [6] per Flick, Griffiths and Perry JJ.
In the circumstances the Court is of the view that this factor does not weigh against the Court extending time to allow the applicant to rely upon the Judicial Review Application, but nor, in the circumstances, does it weigh in favour of it.
Merits of the Judicial Review Application
Prospects of success
The Court should not exercise its discretion to extend time, even for a short period, if the Judicial Review Application (and now the Further Amended Judicial Review Application) has no prospect of success: SZSDA v Minister for Immigration & Citizenship [2012] FCA 1319 at [39] per Foster J, and it is not in the interests of the administration of justice to use the resources of the Court where there is no real prospect of success were an extension of time to be granted: MZZIV v Minister for Immigration & Border Protection [2013] FCA 1203 at [6] per Mortimer J.
It is not necessary for the applicant to positively establish that the application will succeed at final hearing: SZTES v Minister for Immigration & Border Protection [2015] FCA 719 (“SZTES”) at [48] and [102] per Wigney J. The Court need only examine the grounds of review in the Judicial Review Application (and now the Further Amended Judicial Review Application) and determine if any ground might be arguable, reasonably arguable, or have a reasonable prospect of success: SZTES at [48] per Wigney J. Success in this context is to be measured by reference to the fact that the Tribunal Decision may be liable to be set aside on judicial review where it is found to be affected by jurisdictional error (as to which see [26] below).
Jurisdictional error required
The Tribunal Decision may be set aside upon review if it involves jurisdictional error: Plaintiff S157/2002 v The Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 (“Plaintiff S157/2002”) at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. An error by the Tribunal may establish jurisdictional error if the Tribunal; identifies a wrong issue, asks the wrong question, ignores relevant material or relies on irrelevant material, in such a way that the Tribunal’s exercise or purported exercise of power is thereby affected resulting in a Tribunal decision exceeding or failing to exercise the authority or powers given to the Tribunal under the Migration Act: Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 (“Yusuf”) at [82] per McHugh, Gummow and Hayne JJ. In particular circumstances a denial of procedural fairness may also establish jurisdictional error: SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300 (“SZBEL”).
The Court does not have the jurisdiction to review the merits of the Tribunal Decision: Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1 (“Wu Shan Liang”), CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.
The applicant bears the onus of establishing jurisdictional error in the Tribunal Decision: VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [45] per Hill, Sundberg and Stone JJ; Maroun v Minister for Immigration & Citizenship [2009] FCA 1284; (2009) 112 ALD 424 at [15] per Jagot J.
In this case the Court is of the view that it is reasonably arguable that the Tribunal has made a jurisdictional error in relation to grounds 4 and 7. In relation to ground 4 the Court is of the view that is arguable that there was a failure to consider joint liabilities of the applicant and the Sponsor as one of the circumstances of the financial aspects of their relationship. In relation to ground 7 the Court considers that it is arguable that the Tribunal conclusion with respect to the Sponsor’s “reversion”: CB 482 to Islam failed to set out reasonable reasons for not accepting that the Sponsor’s reversion was indicative of a commitment to the relationship with the applicant. In those circumstances, where those grounds of review are plainly arguable, this factor weighs in favour of an extension of time.
Conclusion on extension of time
In circumstances where this is minimal delay, an adequate explanation for the delay, insignificant prejudice to the Minister, and at least some arguable grounds of review, the Court is of the view that the applicant’s application for an extension of time out be to granted.
Grounds of the Further Amended Judicial Review Application
The grounds of the Further Amended Judicial Review Application are as follows:
1. The Tribunal made a jurisdictional error by misapplying cl. 820.211 of Schedule 2 of the Migration Regulations 1994 (Cth) when assessing whether the applicant satisfied the primary criteria for the grant of a Partner (Temporary) (Class UK) visa.
Particulars
a. Clause 820.211 required the Tribunal to assess whether the applicant was the spouse or de facto partner of the sponsor at the time of application, 30 August 2013.
b. The Tribunal in its decision record made the following findings:
(i) "The evidence also before the Tribunal is that the sponsor rarely shared a meal with her husband, preferring to get takeaway and eating separately from her husband and his housemates." (CB 649, [37]);
(ii) "...the Tribunal finds it unusual that the applicant as a newly married man would choose to eat with his housemates rather than his wife especially when he is claiming that he was 100% committed to the relationship.(653, [73]);
(iii) "The evidence from the witnesses is that the majority of the time [the applicant and his housemates] ate together without the sponsor and the Tribunal considers that this tends to indicate that the applicant tended to draw his companionship from his friends rather than his wife." (CB 654, [76]); and
(iv) The applicant provided photographs he states are of the sponsor's birthday on 15 March 2014. The applicant claimed that he went to her birthday in March 2014 and was assaulted by her 2 days later. The Tribunal has concerns with this evidence that he attended her birthday on 15 March 2014 as the evidence presented indicates the sponsor told Centrelink she was separated on 6 March 2014 and the applicant made an application for a restraining order on 27 February 2014." (CB 652, [67]).
c. The applicant provided evidence , accepted by the Tribunal (CB 646, [14]), that he was subjected to family violence by the sponsor during their marriage (CB 88-91, 409-410, 421-424, 456-464, 469-482).
d. In light of this evidence the Tribunal only had to assess whether the applicant and sponsor were in a spousal relationship at the time of application (30 August 2013).
e. The applicant presented evidence to the Tribunal that he and the sponsor were in a genuine relationship that had commenced by the time of the marriage ceremony solemnised on 15 May 2013 and had ended in early 2014.
f. In making its decision, the Tribunal placed undue emphasis on evidence and events (outlined in particular b. above) after the date of application, contrary to the requirement of clause 820.211(2)(a)(i) that the Tribunal assess that nature of the relationship at the time of application.
2. The Tribunal made a jurisdictional error in considering the nature of the persons' commitment to each other pursuant to sub regulation 1.15A(3)(d).
Particulars
a. The Tribunal found:
(i) There is limited evidence as to the emotional support [the applicant and sponsor] provided to each other or the companionship provided (CB 654, [76]); and
(ii) The Tribunal is not satisfied that the evidence presented indicates a spousal relationship at the time the application was lodged (CB 654, [77]).
b. In making the above findings the Tribunal failed to take into consideration:
(i) that the applicant, as evidence of his commitment to the sponsor, accompanied the sponsor to court and meetings with her Legal Aid representative on numerous occasions (CB 413, 461-462);
(ii) the emotional support that the applicant provided the sponsor after she became addicted to glue sniffing until the couple's separation in April 2014.
3. The Tribunal made a jurisdictional error in considering the financial aspects of the relationship pursuant to sub regulation 1.15A(3)(a).
Particulars
a. The Tribunal was required to consider the extent of any pooling of financial resources pursuant to sub regulation 1.15A(3)(a)(iii).
b. The applicant submitted evidence of pooling of financial resources in the form of the joint ANZ Bank Access Advantage Cheque Account ([20]).
c. The Tribunal misconstrued the definition of 'pooling' in finding that the applicant and sponsor did not pool their scarce financial resources through this joint bank account ([30]).
d. The Tribunal further failed to consider the extent of the pooling of financial resources pursuant to sub regulation 1.15A(3)(a)(iii).
4. The Tribunal made a jurisdictional error in considering the financial aspects of the relationship pursuant to sub regulation 1.15A(3)(a).
Particulars
a. The Tribunal was required to consider joint liabilities pursuant to pursuant to sub regulation 1.15A(3)(a)(ii).
b. The Tribunal failed to consider:
(i) the joint lease held by the applicant and sponsor over the property at 7 Bradley Way, Lockridge (CB 3-10).
(ii) the loan applied for by the applicant and sponsor which was refused by the ANZ bank (CB 319-320).
5. The Tribunal made a jurisdictional error in considering the financial aspects of the relationship pursuant to sub regulation 1.15A(3)(a).
Particulars
a. The Tribunal did not consider the sponsor's declaration to Centrelink with respect to her marriage and the reduction of Centrelink payments she received by virtue of the marriage (CB 294).
b. The Tribunal did not take into account the fact that the applicant had provided a 2013 tax return to the Australian Taxation Office in which it was declared that the sponsor and applicant were in a spousal relationship (CB 496).
6. The Tribunal made a jurisdictional error in considering the financial aspects of the relationship pursuant to sub regulation 1.15A(3)(a).
Particulars
a. The Tribunal was required to consider the basis of any sharing of day to day household expenses pursuant to sub regulation 1.15A(3)(a)(v).
b. The Tribunal found that it "was not satisfied that the applicant and sponsor pooled their scarce financial resources or shared the day to day household expenditure. " ([30]).
c. In making its findings as to the financial aspects of the relationship, the Tribunal did not consider the basis of the sharing of day to day household expenses and the evidence on that criterion submitted by the applicant.
7. The Tribunal made a jurisdictional error in respect of its finding at [66] that the sponsor's conversion to the applicant's religion and marriage according to Islamic law in July 2013 did not indicate a commitment to their relationship.
Particulars
a. Subsection 430(1), paragraphs (c) and (d), of the Migration Act 1958 required the Tribunal set out its findings on any material questions of fact and refer to the evidence or any other material on which the findings of fact were based
b. The question whether the sponsor's conversion to Islam and participation in an Islamic marriage ceremony demonstrated commitment to the relationship was material to the Tribunal's review.
c. In reaching its conclusion on this material question of fact at [66], The Tribunal failed to refer to the evidence or any other material on which the finding was based.
8. The Tribunal made a jurisdictional error by failing to accord the applicant procedural fairness, alternatively through breaching ss 359AA and 359A of the Migration Act 1958, in not putting to the applicant for comment various findings and concerns that were critical to the review.
Particulars
Halal food
a. The Tribunal noted that the applicant's submission: "indicates that the review applicant would buy breakfast from McDonalds which they would eat together, however it also states that the applicant only eats halal food and McDonalds is not halal" (CB 649, [37]).
b. The Tribunal did not put the assertion that "McDonalds is not halal" to the applicant for comment.
c. Nor was there any evidence before the Tribunal on the question whether McDonalds serves halal food beyond the Tribunal member's subjective belief.
Introduction of applicant to sponsor's parents
d. The Tribunal found:
(i) "While the Tribunal accepts that the sponsor's mother has subsequent to her marriage met the applicant in person, the Tribunal is concerned that [the sponsor] had not introduced him to her parents prior to her marriage.
e. The Tribunal is also concerned that it appears that [the sponsor's mother] did not attend the wedding of her daughter and that apart from the sponsor's sisters; only the applicant's friends attended" (CB 650, [55]).
The Tribunal did not put the above concerns to the applicant for comment.
Applicant's close friends
f. The Tribunal found:
(i) "...despite the applicant claiming he told his mother and brothers about his relationship with the sponsor in October 2012, his close friends were unaware of his relationship until shortly prior to the wedding." (CB 653, [71]); and
(ii) That it "does not find it credible that the applicant would tell his mother and brothers in Pakistan about his relationship with the sponsor when his friends in Australia with whom he lived were not aware of the relationship until just prior to [h]is marriage." (CB 653, [71]).
g. The Tribunal did not put the above findings to the applicant for comment.
Sponsor's conversion to Islam and Islamic marriage ceremony
h. The Tribunal stated at [66] that it did not accept that the sponsor's conversion to Islam and marriage to the applicant according to Islamic law in July 2013 indicated a commitment to their relationship.
i. The Tribunal failed to invite comment from the applicant on the above finding.
9. The Tribunal made a jurisdictional [error] by failing to consider relevant material supplied by the applicant sin support of his visa application.
Particulars
a. Under cover of letter dated 22nd August 2013, the applicant’s initial migration agent AR Coates lodged various documents in support of the visa application, including:
(i) Completed form 47SP, Application for migration to Australia by a partner
(ii) Competed form 40SP Sponsorship for partner migration to Australia
(iii) Certified copy of sponsor’s Australian Birth Certificate
(iv) Written relationship statement from the applicant
(v) Written relationship statement from the sponsor
(vi) Form 888 statutory declaration by Bella Lena Bropho
(vii) from 888 statutory declaration by Muhammad Saijid Khan
b. The Tribunal did not make reference to nor consider the documents numbered (i), (ii), (iv), (v) and (vii) above, and accordingly made jurisdictional error.
10. The Tribunal made a jurisdictional error by making a procedurally unfair decision through failing to hold a further hearing in circumstances where it told the applicant that it would do so.
Particulars
a. The Tribunal conducted a hearing on 8 July 2015.
b. the Tribunal member stated before the conclusion of the hearing that it might have to or would hold another hearing (Transcript p 29, 31).
c. At the conclusion of the hearing the Tribunal stated: “I’m going to adjourn pending another hearing rather than just adjourn, depending on the information that I get”
d. The Tribunal failed to hold another hearing before delivering its decision.
Relevant legislation
In this case the relevant criteria to be satisfied by the applicant at the time of the Partner Visa application is contained in cl.820.211 of Sch.2 (“cl.820.211”) of the Migration Regulations. It should be noted that cl.820.221(3) of Sch.2 (“cl.820.221(3)”) of the Migration Regulations relates to the criteria the applicant must satisfy at the time of the decision, but because the applicant’s Partner Visa application alleges domestic violence and that he is no longer in a relationship with the Sponsor cl.820.221(3) does not need to be canvassed as the Tribunal was not satisfied the applicant was ever the “spouse”, as defined in s.5F of the Migration Act, of the Sponsor.
Clause 820.211 of the Migration Regulations relevantly states:
(1) The applicant:
(a) is not the holder of a Subclass 771 (Transit) visa; and
(b) meets the requirements of subclause (2), (3), (4), (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
Section 5F of the Migration Act provides as follows:
(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.
Regulation l.15A of the Migration Regulations provides as follows:
(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).
Consideration
Analysis of reg.1.15A(2) and (3) of the Migration Regulations
Regulation 1.15A(2) of the Migration Regulations (“reg.1.15A(2)”) requires that the Tribunal “… must consider all of the circumstances of the relationship, including the matters set out in …” reg.1.15A(3) of the Migration Regulations (“reg.1.15A(3)”).
The Court dealt with the interpretation of the words ‘must’ and ‘all’ contained in reg. 1.15A(2) in Fobizi v Minister for Immigration & Anor [2017] FCCA 1738 (“Fobizi”) at [17]-[20] per Judge Lucev (in a judgment delivered after argument in this matter) as follows:
“Must”
17. In dealing with migration legislation which required that applications “must” be lodged within a certain time limit, the Federal Court in Wang v Minister for Immigration & Multicultural Affairs (1997) 71 FCR 386; (1997) 151 ALR 717; (1997) 45 ALD 104; FCR at 391 per Merkel J (“Wang”) held that “must” is a word of absolute obligation, and went on to observe that “[s]uch an interpretation also accords with the principle that enactments requiring that a specified procedure be followed in courts are usually mandatory and not merely directory”: Wang FCR at 391 per Merkel J. The Federal Court cited:
a) Posner v Collector for Inter-state Destitute Persons (Vic) (1946) 74 CLR 461 (“Posner”) where one High Court Justice observed that “must” was a word of “absolute obligation” when used in legislation requiring personal service on a party: Posner at 490 per Williams J; and
b) Kosovich v Mancini (1982) 31 SASR 272 (“Kosovich”) where the South Australian Supreme Court was dealing with road transport legislation which provided that the mass of a vehicle “must be determined in accordance with the regulations”, and in relation to which it was observed that the phrase “must be determined” imposed an “obligation which cannot be regarded as directory only” and that the use of “must” in ordinary language was “imperative”: Kosovich at 275 per Millhouse J.
18. Other examples of federal courts finding that the use of “must” is indicative of an imperative command and that it expresses necessity in the sense of an obligation or requirement include Australian Fisheries Management Authority v PW Adams Pty Ltd (1995) 61 FCR 314; (1995) 22 AAR 261; (1995) 134 ALR 51; (1995) 39 ALD 481; FCR at 332 per Sheppard J (with whom Tamberlin J FCR at 334 and Lehane J FCR at 336 agreed); Hill v Compass Ten Pty Ltd [2012] FCA 761; (2012) 205 FCR 94; (2012) 223 IR 341; (2012) 64 AILR 101-672 at [29]-[31] per Cowdroy J; Pitrau v Barrick Mining Services Pty Ltd [2012] FMCA 186; (2012) 259 FLR 447; (2012) 219 IR 208; (2012) 64 AILR 101-563 at [23] per Lucev FM, and Gration v Remote King & Anor [2015] FCCA 2617; (2015) 302 FLR 53 at [31] per Judge Jones.
“All”
19. If there be any doubt that an imperative obligation be imposed by the use of the word “must” in reg.1.15A(2) of the Migration Regulations that doubt is removed by considering the phrase in which “must” appears more fully. In that regard the relevant phrase is “must consider all of the circumstances of the relationship”.
20. The use of the word “all”, without limitation, is indicative both of the imperative nature of the obligation, and its breadth. In Duke of Newcastle v Morris (1870) LR 4 HL 661 it was held that the words “all debtors” used in s.69 of the Bankruptcy Act 1861 (UK) included persons of every description, and that peers could not claim exemption from the operation of the provision on the ground that they had the privilege of Parliament. In Milne & Ors v The Municipal Council of Sydney (1912) 14 CLR 54; (1912) 12 SR (NSW) 673; (1912) 18 ALR 550 (“Milne”) the plaintiffs had agreed with the defendants to do “all” the mechanical repairs required to the defendant’s electrical plant for the term of 12 months at certain rates of payment, and the High Court held on the construction of the documents that there should be implied a promise by the defendants to employ the plaintiffs to the exclusion of other persons to do those repairs: “… [it] is a clear contract to do so specific work, that is to say, all the mechanical repairs to the plant that may be needed to be done during the term of twelve months”: Milne CLR at 64 per Griffith CJ, and see also CLR at 69 per Barton J. In Edgware Trust, Ltd v Lawrence [1961] 1 WLR 1354 (“Edgware Trust”) a borrower gave a promissory note in favour of money lenders which contained a default clause which as printed in the promissory note was clear, but as printed in the memorandum was unintelligible because certain words were omitted. By s.6(1) of the Money Lenders Act 1927 (UK) (“Money Lenders Act”) no contract for the repayment by a borrower of money lent to him was enforceable unless a note or memorandum of a contract was made and signed personally by the borrower, and under s.6(2) of the Money Lenders Act “the note or memorandum aforesaid shall contain all the terms of the contract”. In Edgware Trust at 1359 per Diplock J it was held that the whole purpose of s.6 of the Money Lenders Act requiring that the note or memorandum shall contain all the terms of the contract would be defeated unless the document in the possession of the borrower contained all the terms of the contract. A defence that pleaded that the memorandum did not comply with s.6(2) of the Money Lenders Act therefore succeeded.
Ground 1
Applicant’s submissions
The applicant submitted that:
a)the Tribunal was obliged, pursuant to cl.820.211(2)(a), to consider whether the parties were in a spousal relationship at the time of application;
b)"Spouse" is defined in s.5F of the Migration Act. It includes persons in a married relationship, and persons who "have a mutual commitment to a shared life as husband and wife to the exclusion of all others";
c)the question for the Tribunal was whether the parties had a mutual commitment to a shared life as husband and wife to the exclusion of all others at the time of the Partner Visa application;
d)the Tribunal identified the issue as being whether the applicant and Sponsor were in a partner relationship at the time of application: CB 646 at [14]: Tribunal Hearing Transcript, p.2;
e)by the time the Partner Visa application was lodged the parties had known each other for 14 months. At the time of application, the parties had been living together for 4 months, and had been married for 3.5 months;
f)there was evidence before the Tribunal that the applicant and sponsor were happy together and committed to their relationship for the first several months of it. The relationship 'went bad' after September 2013 when the sponsor started sniffing glue with her cousin: CB 163. See also:
i)applicant's statement: CB 454-455;
ii)applicant's oral evidence to the Tribunal: Tribunal Hearing Transcript p.6;
iii)Form 888 by Bella Bropho (Sponsor's mother) referred to in the Tribunal Decision at CB 649 at [40];
iv)statement by Adil Aslam: CB 98; and
v)statement by Sagheer Ahmed: CB 100;
g)the relationship fell into difficulty from December 2013 and the applicant considered it was finally over from 13 April 2014, which was the date of the final assault upon him: CB 277;
h)the Tribunal was satisfied on the basis of the evidence presented that the Sponsor had a substance abuse problem and this problem was in existence in early September 2013: CB 653 at [74]. However that does not mean that the parties could not have been in a genuine relationship as at 30 August 2013 and for some time after that until the violence by the Sponsor became so bad that the applicant could no longer tolerate it;
i)the critical issue for a Partner Visa is whether the applicant and the sponsor have a mutual commitment to a shared life together. The quality of the relationship is not a relevant consideration. The parties can have an appalling relationship, but that fact alone will not preclude a finding that they also have a mutual commitment to a shared life together to the exclusion of all others: Singh v Minister for Immigration & Anor [2016] FCCA 114 per Judge Riley at [53];
j)in Re Bretag v Minister for Immigration Review Tribunal [1991] FCA 582 (“Bretag”) at [13] per O'Loughlin J, the Federal Court held that the Tribunal erred in law by permitting itself to be influenced inappropriately by events that occurred subsequent to the events subsisting at the time of the application;
k)the dominant question was whether as at 30 August 2013 the parties had a mutual commitment to a shared life as husband and wife to the exclusion of others: Bretag at [15] per O'Loughlin J;
l)the Tribunal's analysis of whether the applicant and Sponsor were in a spousal relationship focused inappropriately on events that occurred after the date of Partner Visa application, such as:
i)the Sponsor's attendance at the applicant's birthday on 15 March 2014: CB 652 at [67];
ii)the fact that the parties did not eat meals together: CB 653 at [73]. The Tribunal noted that the applicant usually ate different food with the housemates with his wife not present. However, the evidence was that the housemates moved into the house after the parties had lived by themselves for 2 months in the house: CB 648 at [34]; and
iii)the Sponsor's descent into substance abuse, which also occurred after the date of the Partner Visa application. Even after the Sponsor began the glue sniffing, there was evidence before the Tribunal that the applicant continued to support the Sponsor and was committed to the relationship until March 2014.
The applicant made further oral submissions at the hearing that the Tribunal did not perform its statutory task by making broad statements of generality and not engaging with the specific claims made by the applicant which demonstrate that he was in a genuine relationship at the time of the Partner Visa application.
Minister’s submissions
The Minister’s submissions in relation to grounds 1 and 2 were as follows:
a)these grounds variously contend that the Tribunal erred in placing weight on evidence and events after the date of the application and erred by failing to take into account evidence relating to events after the date of the application;
b)it is permissible for the Tribunal, when assessing whether a spousal relationship existed at the time of application, to have regard to later events in relation to an earlier point in time, so long as the later events tend logically to show the existence or nonexistence of facts that existed at the time of application: Bretag at [29] per O'Loughlin J; Jayasinghe v Minister for Immigration and Multicultural Affairs [2006] FCA 1700 at [36] per Middleton J;
c)the applicant does not contend that the Tribunal was not permitted to take into account the evidence it did. Instead the applicant takes issue with the weight that the Tribunal placed on such evidence. The weight to be placed on the evidence was a matter for the Tribunal: Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297 at [5]-[7] per Kiefel, RD Nicholson and Downes JJ; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41 per Mason J; Wu Shan Liang, CLR at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ.
d)to the extent that the applicant contends that the Tribunal failed to take into account the applicant's statement. That contention cannot be maintained in circumstances where express reference was made to the applicant’s statement by the Tribunal in the Tribunal Decision: CB 653 at [74]; and
e)that, in reality, these grounds constitute a request for impermissible merits review;
f)the Tribunal identified the relevant issue, which was whether the applicant and Sponsor were in a relationship at the time the application was lodged: CB 644 at [14];
g)the Tribunal was not required to specifically refer to every piece of evidence that the applicant submitted and the Tribunal had difficulty with the oral evidence of the applicant as it appeared rehearsed: CB 652 at [60] and 653-654 at [75];
h)the Tribunal found that there was limited evidence as to the emotional support or companionship that the applicant and Sponsor provided each other, which is a finding of a higher level of generality: CB 654 at [76]; and
i)the Tribunal also took into account:
i)the bank statements and financial records: CB 647 at [19]-[20];
ii)the two statements in support of the application, dated 22 July 2013 and 10 August 2013: CB 649 at [39]-[40]; and
iii)the evidence of the Sponsor regarding moving into the applicant’s house in Eden Hill: CB 646 at [11].
Consideration of ground 1
The applicant’s contention is that the Tribunal misapplied cl.820.211 when assessing whether the applicant met the primary criteria for the grant of the Partner Visa due to the emphasis it placed on the evidence of the nature of the spousal relationship after the date of the Partner Visa application contrary to the requirement of cl.820.211(2)(a)(i) (“cl.820.211(2)(a)(i)”) of sch.2 to the Migration Regulations.
The Tribunal identified the statutory basis for the Partner Visa application under cll.820.211 and 820.221 of the Migration Regulations which require that at the time of the application and the decision the applicant must be the spouse or de facto partner of the Sponsor unless certain circumstances exist: CB 645 at [3].
This ground specifically relates to the primary criteria to be met at the time of the Partner Visa application in cl.820.211(2)(a)(i) set out at [33] above. The Tribunal considered the claims and evidence put before it, and in so doing considered the claims of the applicant to be the spouse of the Sponsor who is an Australian citizen: CB 645 at [8], and identified the relevant statutory definition of “spouse” as defined in s.5F of the Migration Act and reg.1.15A of the Migration Regulations: CB 645-646 at [9]; see [34]-[35] above.
The Tribunal considered whether the applicant and sponsor were validly married as required by s.5F(2)(a) of the Migration Act and referred to the Marriage Certificate issued by the Registry of Births, Deaths and Marriages (WA) provided by the applicant and indicating the date of marriage as 15 May 2013 and found that the marriage was valid: CB 646 at [10].
The Tribunal then turned its consideration to the claim made by the applicant that he was no longer in a relationship because he was subjected to family violence during their marriage and reiterated that the issue before the Tribunal is whether the applicant and Sponsor were in a “partner relationship” at the time of the Partner Visa application and prior to the applicant suffering family violence: CB 646 at [12]-[14].
The Tribunal considered the nature of the applicant’s and Sponsor’s commitment to each other as part of its consideration as to whether they had a mutual commitment to each other to the exclusion of all others: CB 651-654 at [59]-[76]. The Tribunal Decision referred to evidence of events both at the time of, and after, the Partner Visa application including:
a)the sworn statements of Yasir Rehman, Syed Hassen Kazimi, Sagheer Ahmed and Adil Aslam and the applicant’s brother: CB 651-652 at [59]-[64];
b)that the length of time the applicant and Sponsor had lived together was about one month prior to their marriage in a share house, then they moved to a property in June 2013 together for some privacy, however, in September 2013 the applicant’s brother moved in and after that a number of the applicant’s friends also moved into the same property: CB 648 at [34];
c)that the applicant and Sponsor were married on 15 May 2013: CB 646 at [10], and that the applicant left the relationship in February 2014: CB 652 at [65]. The Tribunal noted that based on this evidence the duration of the relationship and marriage was less than a year: CB 654 at [76];
d)that the Sponsor started sniffing glue in December 2013 and the applicant left in February 2014, but continued to support the sponsor until 13 April 2013: CB 652 at [65] and [67], having attended the Sponsor’s birthday on 15 March 2014: CB 652 at [67];
e)the conversion of the Sponsor to Islam and marrying according to Islamic law: CB 652 at [66];
f)the applicant’s response when the Tribunal asked the applicant to tell the Tribunal about his relationship which saw the applicant revert back to his written statement dated August 2013 and follow the information contained within it, and again when the Tribunal asked the applicant about his wife he again referred to his statement. Further, the Tribunal found the applicant’s answer to which side of the bed his wife slept on to be long winded and unconvincing: CB 652 at [69];
g)that the applicant met the sponsor online in August 2012 in Australia, he travelled to Pakistan in October 2012 and told his family that he had met the sponsor and when he returned they resumed their friendship and completed the intention to marry form in April 2013 before marrying in May 2013 before all his friends: CB 652 at [70];
h)that the applicant had told his family of his relationship with the Sponsor in October 2012, but his friends did not know of the relationship until shortly prior to the wedding: CB 653 at [71];
i)that the Sponsor’s mother had only known the applicant since their marriage: CB 653 at [72] and
j)the applicant and his brother cooked and ate together as the Sponsor preferred fast food and did not like their food: CB 653 at [72], and she therefore rarely ate with the applicant: CB 653 at [73].
The Tribunal, after considering all the available evidence individually and cumulatively, was not satisfied that the applicant met cl.820.211(2)(a): CB 654 at [79]-[80].
The Tribunal is entitled to accept or reject or give such weight to the evidence proffered as it thinks appropriate in all the circumstances: Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 at [27] per French J; Wu Shan Liang CLR at 281-282, per Brennan CJ, Toohey, McHugh and Gummow JJ.
The Court is of the view that the Tribunal weighed all of the above evidence and came to a finding that it was not satisfied the applicant was in a genuine relationship at the time of the Partner Visa application and therefore did not meet the requirements set out in cl.820.211(2)(a)(i): CB 654 at [79]. In coming to that finding the Tribunal expressly had regard to the relevant statutory provisions contained in cl.820.211(2)(a)(i), reg.1.15A and s.5F of the Migration Act. The Tribunal plainly understood and applied the relevant statutory provisions, and had regard to the relevant test, and did not misapply that test, as it was entitled to consider whether the applicant and the Sponsor were in a relationship at the time of the Partner Visa application by reference to evidence both before and after the event of that application, and it did so. To say, as particular (f) as ground 1 does, that the Tribunal “placed undue emphasis” on the evidence after the date of the Partner Visa application is merely an emphatic way of indicating disagreement with the findings of the Tribunal, more so where the ground points to only four paragraphs out of 83 paragraphs in the Tribunal Decision in support of that argument. That is not to say that the argument is decided as a matter of quantification, but rather that the evidence to which the applicant points in support of this ground does not assist when the Tribunal considered quite properly all of the available evidence, and made its findings having regard to the available evidence as it related to the issue of whether or not the applicant or the Sponsor were in a genuine spousal relationship at the time of the Partner Visa application.
It follows that ground 1 is not made out, and there is no jurisdictional error in the Tribunal Decision established by ground 1.
Ground 2
Applicant’s submissions
The applicant made the following submissions:
a)the Tribunal purported to consider whether the parties were in a spouse relationship at the time of visa application by reference to the criteria in reg.l.l5A(3): CB 655;
b)the Tribunal Decision addressed the nature of the applicant’s and sponsor’s commitment to each other and found that there was limited evidence as to the emotional support they provided to each other or the companionship provided: CB 651-654 at [59]-[76];
c)evidence was provided to the Tribunal of the applicant’s commitment to the sponsor by the migration agent, and that the applicant supported the sponsor by accompanying her to court and attending meetings with the Legal Aid lawyer: CB 413, and in a lengthy submission to the Tribunal: CB 446-468, it was outlined further that the applicant:
i)had assisted her to recover after she had vomited yellow solvent in the middle of the driveway of their house: CB 458;
ii)picked her up from a park in the city and took a day off work to look after her all night: CB 460-461;
iii)provided support to her when she received a summons from the police: CB 460-461;
iv)attended court with her: CB 461- 462;
v)took food and drink to her when she was hospitalised at Royal Perth Hospital: CB 463;
vi)as the Sponsor's husband, took responsibility for driving her to all scheduled appointments at Corrective Services in Midland for drug and alcohol counselling when she did not have a drivers licence: CB 464; and
vii)gave the sponsor $500 to enable her to get her car out of a car impoundment centre in West Perth: CB 466.
d)none of the above matters were referred to by the Tribunal. The Tribunal ignored the entirety of the applicant's written submission: CB 446-468, which described in detail the history of the relationship between the parties and its breakdown;
e)at the Tribunal hearing the applicant outlined his anguish over the Sponsor's substance abuse and the breakdown of the relationship. During this oral evidence, the applicant described how he supported the Sponsor through going to court hearings with her and attending meetings with lawyers: Tribunal Transcript, page 30. These statements were made after the Tribunal stated that it may have to adjourn the hearing: Tribunal Transcript, page 28. At the conclusion of the Tribunal hearing the Tribunal stated:
I'm going to adjourn pending another hearing rather than just adjourn, depending on the information that I get. And whether I need further. Thank you very much. Thank you for attending.
f)the Tribunal did not convene another hearing as it said it would do. Instead the Tribunal proceeded to make the Tribunal Decision over 4 months later without exploring the matters raised by the applicant in his written submission and in his oral evidence as to how he provided support to the Sponsor following her descent into substance abuse.
The applicant made further oral submissions at the Tribunal hearing that the information provided in the applicant’s lengthy submission: CB 446-468, about the support he provided to the Sponsor did tend logically to show the existence of facts relevant to the issue to be determined.
Minister’s submissions
See [40] above.
Consideration of ground 2
The applicant’s contention is that the Tribunal failed to take into account evidence, in particular the support he gave to the Sponsor after she began glue sniffing, when considering the degree of companionship and emotional support the applicant and Sponsor drew from each other pursuant to reg.1.15A(3)(d)(iii) of the Migration Regulations (“reg.1.15A(3)(d)(iii)”).
Regulation 1.15A(3)(d)(iii) states:
(3) The matters for subregulation (2) are:
(d) the nature of the persons' commitment to each other, including:
(iii) the degree of companionship and emotional support that the persons draw from each other; and
The Tribunal considered the nature of the applicant’s and Sponsor’s commitment to each other pursuant to reg.1.15A(3)(d) of the Migration Regulations in the Tribunal Decision under the heading ‘Nature of persons commitment to each other’: CB 651-654 at [59]-[79].
The applicant’s migration agent provided further documents to the Tribunal on 30 June 2015, including a lengthy statement from the applicant: CB 446-468 in which the applicant states that he was there to fully support the Sponsor during her glue sniffing over the period of September to December 2013, including taking time off work to look after her, attending court hearings with her, and taking her to drug and alcohol counselling: CB 460-464.
In the Tribunal Decision the Tribunal considered the evidence and made findings:
a)that the sponsor started sniffing glue about 6 to 7 months after the marriage, maybe in December 2013 and that the applicant left the Sponsor in February 2014 after an altercation, but did everything he could to maintain the relationship and he kept in contact with her and looked after her: CB 652 at [65];
b)that the Sponsor continually assaulted him because of her glue sniffing and whilst he experienced 9 months of continuous abuse he was 100% committed to the relationship: CB 652 at [68];
c)when asked about his relationship he reverted back to his written statement dated August 2013 and followed the information contained within it and again when the Tribunal asked him about the Sponsor he again referred to his statement. Further the Tribunal found the applicant’s answer to which side of the bed the sponsor slept on, long winded and unconvincing: CB 652 at [69];
d)that it did not find it credible that the applicant would tell his family in Pakistan about his relationship in October 2012 but not his friends whom he lived with in Australia until just prior to his marriage: CB 653 at [71];
e)that it did not find it credible that after claiming to be in a relationship that developed to the stage where he proposed to the Sponsor, that the Sponsor would not have introduced the applicant to her mother, and that the photographs provided by the applicant of him with the Sponsor’s family and his friends were dated after the Partner Visa application and therefore did not logically show the existence of a mutual commitment at the time of the application: CB 653 at [72];
f)contrary to the applicant’s claim to be 100% committed to the relationship the Tribunal found it unusual that the applicant would choose to eat with his housemates rather than the Sponsor: CB 653 at [73];
g)according to his written statement the Sponsor’s cousin visited them in September 2013: CB 456-457, and this is when the Sponsor started using drugs and that formed part of the basis of the Tribunal being satisfied that the Sponsor had a substance abuse problem in existence as of early September 2013: CB 653 at [74];
h)had difficulty with the oral evidence of the applicant as it appeared rehearsed: CB 652 at [60] and 653-654 at [75]; and
i)that there was limited evidence as to the emotional support or companionship provided by the applicant and the Sponsor to each other: CB 654 at [76].
The Court notes that the Full Court of the Federal Court addressed the role of the Tribunal regarding referring to evidence in its written reasons in Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630 at [46] and [47] per French, Sackville and Healy JJ:
46 It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [87]-[97])... The Tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised ‘with an eye keenly attuned to error’. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.
47 The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.
The Court notes that the Tribunal was not required to specifically refer to every piece of evidence that the applicant submitted and the Tribunal stated in the Tribunal Decision that after considering the available evidence it was not satisfied that the applicant and sponsor drew emotional support and companionship from each other: CB 654 at [78], and further that after considering all the available evidence individually and cumulatively was not satisfied that at the time the application was lodged on 30 August 2013 that the applicant and sponsor provided emotional support to each other: CB 654 at [79]. The issue for the Tribunal to determine was whether the applicant and Sponsor had a mutual commitment, which included drawing emotional support from each other, at the time the Partner Visa application was made in August 2013, and on which it could base findings of a genuine relationship. The applicant’s lengthy submission: at CB 446-468 which contained, amongst other things, examples of the support provided by the applicant to the sponsor and referred to above at [51(c)] were all examples related to the Sponsor’s substance abuse problem and were post Partner Visa application, and therefore not directly indicative of the emotional support provided by the applicant at the time of the Partner Visa application, and this provided a basis for the Tribunal to state that there is limited evidence as to the emotional support and companionship the applicant and sponsor provided each other: CB 654 at [76].
The obligations imposed by reg.1.15 were set out He v Minister for Immigration and Border Protection [2017] FCAFC 206; (2017) 255 FCR 41; (2017) 161 ALD 17 (“He”) at [52] per Siopis, Kerr and Rangiah JJ, where the Full Court of the Federal Court concluded that the matters in reg. 1.15A(3) are relevant considerations to which the Tribunal is bound to give proper, genuine and realistic consideration by an active intellectual process requiring meaningful consideration of the relevant matter, but it is not an obligation to give relevant matters weight, or to bring them to account as fundamental elements, in making the Tribunal Decision.
The obligation which arises is not one which requires the Tribunal to make a finding as to the existence or effect of every potentially relevant circumstance pertaining to each consideration. The obligation is to make any necessary findings of fact to support the conclusion reached as to each relevant consideration: He at [71] as per Siopis, Kerr and Rangiah JJ.
In He the Full Court of the Federal Court said at [76] per Siopis, Kerr and Rangiah JJ that:
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 …
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 … 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.
It follows from He that there is no proper, genuine and realistic consideration or meaningful consideration as required unless there is a finding as to the facts that bear upon the consideration. The Tribunal cannot, by failing to make the requisite findings as to each consideration, discharge the statutory obligation to consider each of them. It must form a view. However, it is a matter within the jurisdiction of the Tribunal to form a view as to those factual matters. It is also for the Tribunal to determine how to bring each consideration to bear in reaching its conclusion as to whether a person is a spouse of another for the purposes of the Migration Act.
The Court is of the view that the obligation imposed by reg.1.15A(3)(d)(iii) that the Tribunal must consider the degree of companionship and emotional support that the applicant and sponsor draw from each was met as the Tribunal did take into account the evidence it had before it, including the applicant’s written statement, when considering the nature of their commitment to each other, and after considering the available evidence was not satisfied that the applicant and sponsor drew emotional support and companionship from each other: CB 654 at [78], and therefore considering all the available evidence individually and cumulatively was not satisfied that the applicant met cl.820.211(2)(a): CB 654 at [79]-[80].
The issue of the adjournment of the Tribunal Hearing raised by the applicant above is dealt with below at [148]-[154]
Accordingly, there is no jurisdictional error established in ground 2.
Ground 3
Applicant’s submissions
The applicant made the following submissions:
a)the Tribunal was required to consider the extent of any pooling of any financial resources pursuant to reg.l.15A(3)(a)(iii) of the Migration Regulations (“reg.1.15A(3)(a)(iii)”);
b)the Tribunal stated it was satisfied on the evidence presented that despite trying to give the appearance of a pooling of financial resources, the parties managed their own income and finances: CB 648 at [30];
c)the evidence of pooling that was presented included a joint ANZ Bank Access Advantage Cheque Account: CB 321;
d)in Pelka v Secretary, Department of Family & Community Services [2006] FCA 735; (2006) 151 FCR 546; (2006) 43 AAR 220 (“Pelka”) the Federal Court considered the meaning of the term 'pooling of financial resources' as used in social security legislation. His Honour referred to the dictionary definition of 'pool' and concluded that pooling involves an arrangement where resources are put into a common stock or fund. In Pelka at [53] per French J, it was said that pooling:
…plainly involves something more than financial cooperation or separate contributions to different elements of household expense.
e)there was clearly evidence of pooling of financial resources through the parties' joint bank account. The parties' resources were put into a common fund;
f)the Tribunal did not accept that the Sponsor's Centrelink payment being deposited into the joint account indicated a pooling of resources: CB 648 at [29]. The Tribunal therefore erred in finding that the parties did not pool their resources through misconstruing the definition of pooling; and
g)the Tribunal failed to consider the extent of the parties' pooling of financial resources.
The applicant made further oral submissions at the hearing that:
a)the applicant and sponsor put money into a joint account which was used to pay for shopping: Tribunal Transcript page 10; and
b)even if the money is taken straight back out of the joint account, the fact it was put into the joint account for the mutual benefit of the relationship is still evidence of pooling.
Minister’s submissions
The Minister submitted that:
a)it cannot be maintained that the Tribunal misconstrued the definition of ‘pooling’;
b)the Tribunal considered the applicant's evidence that the Sponsor's Centrelink payment was deposited into the joint account however did not consider that this demonstrated a pooling of financial resources when the full amount of such payment was withdrawn immediately and funds returned to the joint account for payments such as rent: CB 648 at [29];
c)to the extent that Pelka can be said to apply to the definition of 'pooling' as it appears in the Migration Regulations, the Tribunal's findings were consistent with that case where the Federal Court said at [52] per French J that:
It plainly involves something more than financial cooperation or separate contributions to different elements of household expenses. The so-called "barter system" did not constitute a pooling of financial resources in that sense. If Mr Kuhl paid for or contributed to overseas travel for Ms Pelka instead of paying rent, that is not a "pooling of financial resources" any more than his payment of rent would be so described.
d)it is evident that whilst the Tribunal did accept that the applicant and Sponsor put their resources into a "common stock or fund" it was not "combined for the common benefit" given that the funds were immediately withdrawn by the Sponsor and then redeposited to contribute to different elements of household expenses.
Consideration of ground 3
The applicant’s contention is that the Tribunal failed to consider the extent of any pooling of financial resources and misconstrued the definition of pooling pursuant to reg.1.15A(3)(a)(iii).
Regulation 1.15A(3)(a)(iii) states:
(3) The matters for subregulation (2) are:
(a) the financial aspects of the relationship, including:
(iii) the extent of any pooling of financial resources, especially in relation to major financial commitments;
To pool something, including financial resources, is to combine them for the common benefit: Pelka at [52] per French J.
The Tribunal considered the financial aspects of the relationship and the applicant’s claim that he and the Sponsor pooled their scarce financial resources and shared the day to day household expenditure: CB 646-648 at [15]-[28]. The Tribunal had regard to the evidence provided by the applicant, which included:
a)copies of various Commonwealth Bank account statements in his name only which the applicant said he no longer used after 2012 and various ANZ Bank Account statements also the applicant’s name only: CB 583-619 and 646 at [16];
b)the application for a loan the applicant and the Sponsor tried to apply for in December 2013 which was rejected: CB 318-320 and 646 at [17];
c)the opening of the joint account into which the Sponsor’s Centrelink payments were paid: CB 647 at [18];
d)a copy of a statement for a joint ANZ Bank on line saver account opened on 2 April 2013: CB 440 and 647 at [19];
e)copies of the joint ANZ Bank Access Advantage Cheque account which shows that from 4 June 2013 the Sponsor’s Centrelink pension was deposited into the account and withdrawn almost immediately and various transfers into and out of the account in the applicant’s name only: CB 15-19, 321-329 and 647 at [20]
f)a copy of various statements from a Commonwealth bank account in the applicant’s name only: CB 570-582 and 647 at [21];
g)that the applicant was paid in cash and he would put money into a joint account for the rent and the Sponsor would withdraw it and pay him cash for the rent. Further that they paid in cash for all their groceries and rent was transferred to the landlord from their joint account as well as others bills being paid from their joint account: CB 647 at [22]; and
h)the representative’s detailed submission building on the applicant’s written statement stating that costs were shared by the applicant and the Sponsor and the that the applicant he was paid more than the Sponsor so paid for most of their outings but shared with the Sponsor the costs of household bills. Rent and groceries: CB 647 at [23].
Minister’s submissions
The Minister submitted:
a)at CB 652 at [66], the Tribunal noted:
The applicant referred to the sponsor's commitment to the relationship by converting to his religion and marrying according to Islamic Law in July 2013. The Tribunal does not accept that this indicates a commitment to their relationship.
b)the sponsor's commitment to the relationship as evidenced by her conversion to Islamic Law was simply material relevant to a finding on a material question of fact and not a material question of fact in itself; and
c)whilst the evidence was relevant to a material question of fact, being the nature of the applicant and Sponsor's commitment to each other, it was open to the Tribunal to either accept or reject the evidence before it and it was not required to give a line by line refutation of the evidence: Duong v Minister for Immigration & Multicultural Affairs [2000] FCA 1473. Accordingly, the Tribunal did not breach s.368(1)(b) of the Migration Act.
Consideration of ground 7
The applicant’s contention is that the Tribunal’s finding that the sponsor’s conversion to Islam and marriage according to Islamic law, being the religion of the applicant, did not indicate a commitment to their relationship breached s.368(1)(b) of the Migration Act.
Section 368 of the Migration Act refers to when a written statement of decision is provided and states:
(1) Where the Tribunal makes its decision on a review (other than an oral decision), the Tribunal must, subject to paragraphs 375A(2)(b) and 376(3)(b), make a written statement that:
(a) sets out the decision of the Tribunal on the review; and
(b) sets out the reasons for the decision; and
(c) sets out the findings on any material questions of fact; and
(d) refers to the evidence or any other material on which the findings of fact were based; and
(e) in the case of a decision under paragraph 362B(1C)(b) or subsection 362B(1E) to confirm the dismissal of an application—indicates that under subsection 362B(1F), the decision under review is taken to be affirmed; and
(f) records the day and time the statement is made.
Pursuant to s.368 of the Migration Act, the Tribunal must prepare a written statement of its decision, which contains the item specified in s.368(1)(b) of the Migration Act. The objective of the Tribunal preparing the written statement is to facilitate a person affected by the Tribunal Decision to "shape his or her further conduct", which can include making an application to the courts for judicial review: Minister for Immigration and Citizenship v SZLSP [2010] FCAFC 108; (2010) 187 FCR 362; (2010) 272 ALR 115 (“SZLSP”) at [84] per Rares J.
The Court notes that in the High Court in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; 266 ALR 367, at [32] and [35] per Gummow ACJ and Kiefel the relevance of written reasons in the context of s.430 of the Migration Act (the equivalent provision in Pt 7 to s.368 of the Migration Act) was explained as follows (citations omitted):
32. Professor Wade wrote that a system of judicial review which cannot cope with crucial questions of fact necessarily is seriously defective. In Australia that deficiency is alleviated by requirements in various laws … for the obtaining of reasons for the decision. Section 430(1) of the Act is such a provision.
35. On the other hand, of provisions such as s 430, it was said in Wu Shan Liang that the reasons are meant to inform and, upon judicial review, are not to be scrutinised in an over-zealous fashion…
The Court further notes that a breach of s.368(1) of the Migration Act is not of itself proof of any jurisdictional error: Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407; 74 ALJR 405; at [70] per McHugh J; Yusuf; SZLSP at [46]–[47] per Kenny J, nor will a decision by the Tribunal be invalid if there has not been compliance with this section: SZLSP at [85] per Rares J.
The Full Court of the Federal Court in NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 328 at [136] per Moore, Tamberlin & Allsop JJ said that:
…It was a process, in significant part, that was bereft of supporting material and rational or reasoned foundation, and was inexplicably selective of the oral evidence. There is much to be said for the proposition that it betrayed so inadequate a dealing with objective material as to amount to an arbitrary or capricious conclusion. This is not a matter of illogicality or harsh fact finding. Illogicality of some kind can be seen in the reasoning processes of many decision-makers, administrative and judicial. Perfect accord with the requirements of logical reasoning is a standard few can achieve in the daily life of decision-making…Here, it could be said that the flaw was more fundamental. The foundation of the rejection of the claims was by a supposed process of reasoning which, in significant and central respects, was no process of reasoning at all. The documents were rejected by assertion largely bereft of any reasoned foundation, as can be seen from a reading of them and the application of a very modest amount of common sense. The selective, unexplained and unreasoned concentration on the so-called unsatisfactory answers on religion and the unreasoned assertion of what flowed from them, ignoring in this process the balance of the answers was not so much illogical, as unreasoned assertion lacking any intellectual foundation. To assert conclusions of this kind in this way may be seen as not to engage in a reasoning process, but to assert conclusions by a process that is no more than an intuitive, arbitrary or capricious response to the task.
The Tribunal Decision at CB 652 at [66] simply makes note of the applicant’s reference to the Sponsor’s commitment to the relationship by converting to the applicant’s religion and marrying according to Islamic law in July 2013 and then states that it does not accept that that indicates a commitment to their relationship. The Tribunal does not refer to the Islamic conversion or marriage anywhere else in the Tribunal Decision or provide reasons why it did not accept the evidence as an indication of the nature of the applicant’s and sponsor’s commitment to each other.
The evidence before the Tribunal was as follows:
a)a copy of the marriage certificate indicating that a civil marriage took place on 15 May 2013: CB 427;
b)a copy of the Islamic reversion certificate of the Sponsor dated 23 July 2013: CB 428;
c)a copy of the Islamic marriage certificate dated 23 July 2013: CB 436; and
d)the statement of the applicant referring to the details of the Islamic ceremony: CB 452-453.
The Tribunal’s reasoning in respect of why it is that the Sponsor’s “reversion”: CB 428 to Islam was not accepted as indicating a commitment to the relationship between the applicant and the Sponsor is a bare assertion devoid of any reasoning. It is simply not explained as to why it is that the Sponsor’s reversion to Islam and marriage accordingly to Islamic law is said to indicate no commitment at all to the applicant’s Islamic faith. Matters which might have pertained to that, in a negative way, including the Sponsor’s addictions and the nature of her physical relationship with the applicant (that is the violence towards him) are simply not adverted to in any way, and nor is any other rationale for the bare assertion made by the Tribunal.
The Court is of the view that the Tribunal’s failure to set out any reason for not accepting that the Sponsor’s conversion to Islam and the Islamic wedding ceremony as evidence of the applicant and Sponsor's commitment to each other, is indicative of the Tribunal not engaging in a reasoning process required by s.368(1)(b) of the Migration Act, and was therefore a jurisdictional error.
Ground 7 therefore establishes jurisdictional error in the Tribunal Decision.
Ground 8
Applicant’s submissions
The applicant made the following submissions:
a)the Tribunal failed to accord the applicant procedural fairness, or alternatively breached ss.359AA and 359A of the Migration Act, in not putting to the applicant for comment various findings and concerns that were critical to the review;
b)these findings were all material to the Tribunal's review having regard to the mandatory considerations set out in reg.1.15A of the Migration Regulations;
c)in SZGUR at [9] French CJ and Kiefel J It was stated:
Procedural fairness requires a decision-maker to identify for the person affected any critical issue not apparent from the nature of the decision or the terms of the statutory power. The decision-maker must also advise of any adverse conclusion which would not obviously be open on the known material. However, a decision-maker is not otherwise required to expose his or her thought processes or provisional views for comment before making the decision. That is not to say that the Tribunal cannot or should not, in the exercise of its discretion, invite an applicant for review to make supplementary submissions in relation to apparent inconsistencies, contradictions or weaknesses in his or her case which have been identified by the Tribunal. (Footnote omitted, emphasis added)
d)it is submitted that none of the adverse conclusions particularised would be obviously open on the known material;
e)the conclusions particularised also constituted information that the Tribunal considered would be the reason or part of the reason for affirming the Delegate’s Decision under review for the purposes of ss.359A and 359AA of the Migration Act; and
f)the Tribunal made a jurisdictional error by failing to invite the applicant to comment on these adverse conclusions.
The applicant filed supplementary submissions in relation to ground 8 in accordance with orders made by the Court on 29 January 2018 and further submitted that:
a)the Tribunal did not put to the applicant for comment various findings and concerns that were critical to the review, namely:
i)the assertion that "McDonalds is not halal”;
ii)the concern that the sponsor had not introduced the applicant to the Sponsor's parents prior to their marriage and that the Sponsor's mother did not attend the wedding;
iii)the concern that the applicant's close friends were unaware of the relationship until shortly before the wedding; and
iv)that the Tribunal did not accept that the Sponsor's conversion to Islam and marriage under Islamic law indicated a commitment to the relationship;
b)the Minister contends that the "issue" for the Tribunal's consideration was whether the applicant and the Sponsor were in a spousal relationship at the time of the Partner Visa application;
c)in ABV16 v Minister for Immigration & Anor [2016] FCA 184 ("ABV16") per Bromberg J, and in the context a protection visa application and the question of whether the applicant in that case was owed protection obligations, and where there was a change in Chinese government policy regarding so called "black children", the Federal Court considered whether this gave rise to a new issue under s.425 of the Migration Act in respect of which the Tribunal was obliged to convene a hearing;
d)the applicant submits that a new issue had in fact arisen, namely the Tribunal's view that "McDonalds is not halal” which was never put to the applicant during the Tribunal hearing;
e)given that the Tribunal relied on this particular view, it was incumbent on the Tribunal to convene a further hearing so that the applicant would have the opportunity to respond to the new issue;
f)in ABV16 at [23] per Bromberg J, the Federal Court considered that issues ought to "be framed at a high level of particularisation" and that an issue "should be regarded as something which the Tribunal considers to be determinative";
g)in ABV16 at [27] per Bromberg J, the Federal Court emphasised the need for a decision maker to bring an applicant's attention to "the critical issue of fact or factor on which the administrative decision is likely to turn" and further stated that "the guiding principle is one of fairness";
h)the formulation of the relevant issue at a high level of generality overlooks or fails to capture the number of variables within it which could, depending on the evidence before the Tribunal, become critical or determinative: ABV16 at [30] per Bromberg J, which is in fact what happened in this case;
i)in the present case, the Tribunal's finding on the nature of the household, and ultimately whether the parties were in a spousal relationship at the time of the Partner Visa application, was affected by the Tribunal's subjective determination that ‘McDonald's is not halal'. It was therefore incumbent on the Tribunal to give the applicant an opportunity to comment by way of a further Tribunal hearing;
j)there was no evidentiary basis for the Tribunal to make its determination that "McDonald is not halal'. The Tribunal had misconstrued the evidence by stating at CB 649 at [37] that:
The Tribunal also notes that the submission indicates that the Review Applicant would buy breakfast from McDonald's which they would eat together, however it also states that the Applicant only eats halal food and McDonald's is not halal.
k)the evidence of the applicant was that:
i)"as a Halal eater, [the Applicant] preferred to prepare his own food”: CB 414; and
ii)"the Review Applicant often would pick up breakfast from McDonald's, and the couple would eat together when he arrived home.": CB 415.
l)by seeking to rely on a new issue of which the applicant had no notice during the Tribunal hearing, the Tribunal was obliged under s.425 of the Migration Act to convene a further Tribunal hearing to put the issue to the applicant for comment;
m)further, the Tribunal failed to put the applicant on notice that "conversion to Islam was not indicative of a commitment to the relationship", being an issue not previously raised with the applicant, and to the extent that the Tribunal relied on this particular issue, s.425 of the Migration Act obliged the Tribunal to provide a further hearing, alternatively to provide notice under s.359AA of the Migration Act so that the applicant would have an opportunity to comment.
With respect to ss.359A and 359AA of the Migration Act the applicant submitted that:
a)the Minister states that "McDonald's is not halal” was not "information" for the purposes of section 359A, relying on SZBYR v Minister for Immigration & Citizenship [2007] HCA 26; (207) 81 ALJR 1190235 ALR 609; (2007) 96 ALD 1 ("SZBYR");
b)the applicant submits that the present case is distinguishable from SZBYR;
c)in SZBYR the "information" relied upon was inconsistencies within the applicant's statutory declaration. This is not the case here. In this case, there was no evidence provided by the applicant which could logically support the Tribunal's conclusion that "McDonalds was not halal."
d)in SZMKR v Minister for Immigration and Citizenship [2010] FCA 340 ("SZMKR") at [26] per Gray J observed that the terms of s.424A of the Migration Act:
".. .impose on the Tribunal obligations that would not necessarily have fallen on it in the absence of codification of the obligation to provide procedural fairness. In the absence of the codification, the provision to the person affected of all of the information that the Tribunal had might have been sufficient compliance. The codification requires a more detailed approach by the Tribunal. Not only does s 424A(1)(a) oblige the Tribunal to give "clear particulars" of the information, s 424A(1)(b) requires that the Tribunal give an explanation of its tentative reasoning processes in relation to the information, so as to ensure, as far as is reasonably practicable, that the person understands the relevance of the information."
e)the applicant contends that this is not information which falls within the exceptions in s.359A of the Migration Act in that:
i)it does not fall within the exception in s.359A(4)(a) of the Migration Act in that it was not about a class of persons; and
ii)the evidence referred to had not been provided by the applicant to the Tribunal within the exception in s.359A(4)(b) of the Migration Act;
f)the issue of the Sponsor's conversion to Islam and marriage according to Islamic law was on its face indicative of a commitment to a spousal relationship. However, the Tribunal simply makes the bald assertion at CB 652 at [66] set out at [110(a)] above;
g)there was no basis for the Tribunal's conclusion at the Sponsor’s reversion to Islam did not indicate a commitment to the applicant and Sponsor’s relationship. The Tribunal was obliged to give clear particulars to the applicant of this information and an explanation of its tentative reasoning process (as to why the Tribunal did not think that, for example, conversion to Islam was not indicative of a commitment to the relationship) to ensure that the applicant understood the relevance of the information: SZMKR at [26] per Gray J; and
h)by failing to do so, the Tribunal breached s.359A of the Migration Act.
Minister’s submissions
The Minister filed written submissions and submitted that:
a)that the Tribunal did not fail to afford the applicant procedural fairness or otherwise failed to comply with the requirements of s.359A or s.359AA of the Migration Act;
b)given that Part 5, Division 5 of the Migration Act is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with: see s.357A of the Migration Act, the applicant's arguments must be assessed against the relevant statutory requirements in Division 5;
c)the obligation in s.360 of the Migration Act must be read subject to the requirements of s.359A of the Migration Act, accordingly, the information referred to by the applicant was not required to be put to him under the Migration Act in circumstances where:
i)the information that McDonald's did not serve Halal food fell within the exception in s.359A(4)(a) of the Migration Act given it was not specifically about the applicant: SZVJY v Minister for Immigration & Border Protection [2016] FCA 618 (“SZVJY”) at [21] per North J; ACC15 v Minister for Immigration & Border Protection [2016] FCA 97 (“ACC15”) at [29] per Gilmour J; and
ii)the further evidence referred to had been provided by the applicant to the Tribunal and therefore fell within the exception in s.359A(4)(b) of the Migration Act. Additionally, the further issues particularised did not constitute "information" for the purpose of ss.359A or 359AA of the Migration Act. "Information" for the purposes of those sections does not include the existence of doubts, inconsistencies or the absence of evidence and does not encompass the Tribunal's subjective appraisals, thought processes or determinations nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps etc: SZBYR at [18] per Gleeson CJ, Gummow, Kirby, Callinan, Heydon and Crennon JJ .
The Minister filed supplementary submissions in relation to ground 8 in accordance with the orders made by the Court on 29 January 2018 and further submitted that:
a)as a starting point, the issue for the Tribunal’s consideration was whether the applicant and the Sponsor were in a spousal relationship at the time the application for the Partner Visa was lodged, in accordance with cll 820.211(2)(a) and 820.221. The applicant was on notice that this was the determinative issue on the review from the Delegate’s Decision: CB 380, a copy of which was provided with the application for review: CB 393;
b)the phrase “McDonalds is not Halal” was not “information” for the purposes of s.359A of the Migration Act, in that it was not a “reason for affirming” the Delegate’s Decision, nor did the information contain, in its terms, a rejection, denial or undermining of the applicant’s claims to have been in a genuine spousal relationship at the time of the Partner Visa application: SZBYR at [17] per Gleeson CJ, Gummow, Kirby, Callinan, Heydon and Crennan JJ. The applicant’s contention stands to be dismissed on this basis alone;
c)if the phrase “McDonalds is not Halal” is “information” for the purposes of s.359A of the Migration Act (which is not conceded), then the Tribunal was not required to put the information to the applicant for comment in circumstances where:
i)the information that McDonald’s did not serve Halal food fell within the exception in s.359A(4)(a) of the Migration Act as it was not specifically about the applicant: SZVJY at [21] per North J; ACC15 at [29] per Gilmour J; and
ii)the further evidence referred to had been provided by the applicant to the Tribunal: CB 649 at [36], and therefore fell within the exception in s.359A(4)(b) of the Migration Act;
d)the Tribunal was entitled to assess the probative value of the evidence before it, and give weight to that evidence as it deemed appropriate, and therefore no error arises;
e)the applicant’s concerns as outlined above were also not “information” for the purposes of s.359A of the Migration Act. “Information” does not extend to the Tribunal’s subjective appraisals, thought processes or determinations: SZBYR at [18] ] per Gleeson CJ, Gummow, Kirby, Callinan, Heydon and Crennan JJ;
f)the task of the Tribunal was to determine whether the applicant and the Sponsor were in a genuine spousal relationship at the time of the Partner Visa application. The Tribunal considered the applicant’s evidence, including a statutory declaration from the Sponsor’s mother which indicated that she had only known the applicant since his marriage to the Sponsor in May 2013: CB 650 at [55], statutory declarations from family and friends which indicated that they had only known the applicant for a relatively short period of time: CB 650 at [56], and, the applicant’s oral evidence that the Sponsor had converted to Islam in July 2013: CB 652 at [66]. The concerns raised by the applicant are simply in relation to findings made by the Tribunal which were open to it on the materials before it.
g)the applicant contends that the Tribunal breached ss.359A and 359AA of the Migration Act. Section 359AA of the Migration Act is “complementary” to s.359A of the Migration Act. The former provision confers a power which, if exercised, relieves the Tribunal of the duty imposed by the latter provision: see s.359A(3) of the Migration Act. It follows that any failure to exercise the power in s.359AA of the Migration Act is not a jurisdictional error. Any failure to exercise the power in s.359AA of the Migration Act will simply cast the Tribunal back to s.359A of the Migration Act: see, for example, SZMCD v Minister for Immigration and Citizenship [2009] FCACF 46; (2009) 174 FCR 415.
h)this case is entirely different to ABV16. In ABV16 the Court held that the change in Chinese government one child policy, post Tribunal hearing, gave rise to a new issue and that the Tribunal was obliged to invite the applicant to a further Tribunal hearing in relation to that new issue: at [59] per Bromberg J;
i)in this matter, the issues were not new, arose on the applicant’s material and were addressed at least in part by the applicant. The Tribunal’s conclusions, flowed from inferences it drew and its reasoning process in response to the existing material. Neither s.359A of the Migration Act nor s.360 of the Migration Act was breached in the circumstances; and
j)it is therefore unnecessary for this Court to explore the obiter remarks in ABV16 at [53] to [58] per Bromberg J, where the Federal Court considered that s.424A(3) of the Migration Act should be read as subordinate to s.425(1) of the Migration Act.
Consideration of ground 8
The applicant’s contention is that the Tribunal denied the applicant procedural fairness or otherwise breached ss.359AA and 359A of the Migration Act by failing to put to the applicant for comment, various findings and concerns that were critical to the review
Sections. 359AA and 359A of the Migration Act are relevantly as follows:
359AA Information and invitation given orally by Tribunal while applicant appearing
If an applicant is appearing before the Tribunal because of an invitation under section 360:
(a) the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) if the Tribunal does so—the Tribunal must:
(i) ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and
(ii) orally invite the applicant to comment on or respond to the information; and
(iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and
(iv) if the applicant seeks additional time to comment on or respond to the information—adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.
359A Information and invitation given in writing by Tribunal
(1) Subject to subsections (2) and (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
…
(3) The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 359AA.
(4) This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b) that the applicant gave for the purpose of the application for review; or
(ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
(c) that is non‑disclosable information.
Section 360 of the Migration Act also provides that:
(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
The Court notes that the Federal Court in ABV16 at [59] per Bromberg J found that the change in Chinese government policy, post Tribunal hearing, gave rise to a new issue and that the Tribunal was obliged to invite the applicant to a further hearing in relation to that new issue.
The Court notes that the Tribunal did not put to the applicant for comment various findings, namely:
i)the assertion that "McDonalds is not halal”;
ii)the concern that the Sponsor had not introduced the applicant to the Sponsor's parents prior to their marriage and that the Sponsor's mother did not attend the wedding;
iii)the concern that the applicant's close friends were unaware of the relationship until shortly before the wedding; and
iv)that the Tribunal did not accept that the Sponsor's conversion to Islam and marriage under Islamic law indicated a commitment to the relationship.
In the Court’s view each of the matters now said to have been issues were matters which arose in the course of the evidence on the applicant’s case, and were matters which were addressed by the applicant in his evidence. The halal food matter was specifically raised by the applicant, and it was the applicant who gave evidence about picking up the food from McDonald’s, from which the Tribunal has drawn an inference of fact. Whether or not that fact is an error is not a matter for the Court as fact finding is a matter within the remit of the Tribunal, and wheher or not halal food was available at the McDonald’s was part of that exercise: Wu Shan Liang, CLR at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ.
Likewise the issue of the Sponsor’s conversion to Islam and marriage under Islamic law was a matter which arose on the evidence, and which was addressed (albeit erroneously): see [119]-[120] above) by the Tribunal for the purposes of making findings of fact.
ABV16 is not of assistance to the applicant in this case, ABV16 related to a wholly new issue which arose subsequent to the Tribunal hearing, not a matter which arose out of issues addressed in the Tribunal hearing which is, for the reasons set out at [132] and [133], the case here.
In all of the above circumstances, ground 8 is not made out and does not establish jurisdictional error in the Tribunal Decision.
Ground 9
Applicant’s submissions
The applicant made the following submissions:
a)none of the documents listed in Ground 9 appear in the Court Book;
b)given the Tribunal's negative conclusions as to the nature of the relationship and the applicant's credibility, it was incumbent on the Tribunal to consider all material submitted to it by the applicant;
c)in particular, it was incumbent on the Tribunal for it to consider a statement from the Sponsor regarding the relationship, who otherwise had provided no direct evidence to the Tribunal; and
d)the failure to consider the documents particularised constituted a jurisdictional error.
The applicant made further oral submissions at the hearing that the statutory declaration made by the sponsor’s mother, Bella Dina Bropho although referred to briefly by the Tribunal: CB 649 at [40], the Tribunal should have been given more detailed consideration in relation to the question of whether there was a genuine relationship as at 30 August 2013.
Minister’s submissions
See [40] above.
Consideration of ground 9
The applicant’s contention is that the Tribunal failed to make reference to or consider relevant material put before it in support of the applicant’s Partner Visa application, specifically the following documents under cover of letter dated 22 August 2013 from the applicant’s initial migration agent AR Coates who lodged:
i)a completed form 47SP, Application for migration to Australia by a partner;
ii)a completed form 40SP Sponsorship for partner migration to Australia;
iii)a certified copy of the Sponsor’s Australian Birth Certificate;
iv)a written relationship statement from applicant;
v)a written relationship statement from the Sponsor;
vi)a Form 88 statutory declaration by Bella Lena Bropho; and
vii)a Form 888 statutory declaration by Muhammad Sajjid Khan.
In the Tribunal Decision the Tribunal specifically referred to:
i)the fact of the lodgement of the Partner Visa application on the basis of the applicant’s relationship with his sponsor: CB 645 at [2];
ii)a Form 888 statutory declaration by Bella Dina Bropho dated 10 August 2013: CB 649 at [40], 650 at [55] in the context of evidence relating to the social aspects of the applicant’s and sponsor’s relationship and then also in the context of the nature of the applicant’s and sponsor’s commitment to each other: CB 653 at [72]
iii)a Form 888 statutory declaration by Muhammad Sajjid Khan dated 22 July 2013: CB 649 at [39] and the Tribunal placed little weight on the statement because it provided little detail as to the nature of the applicant’s and Sponsor’s relationship and why it was said to be genuine and continuing: CB 650 at [56]; and
iv)the applicant's August 2013 written statement: CB 652 at [69]; and
accordingly, the Court should not infer that the above evidence was overlooked: WAEE at [46]-[47] per French, Sackville and Hely JJ.
In relation to the Sponsor’s Certified Copy of her Australian Birth Certificate and statement at Annexure BMM4 of Ms Mellino’s Affidavit the Tribunal did not make any reference to these documents in the Tribunal Decision.
The Court notes that:
a)whether the Tribunal is obliged to consider documents will depend on the circumstances of the case and the nature of the documents: VAAD v Minister for Immigration [2005] FCAFC 117;
b)the fundamental question for the Tribunal must be the significance of the documents in question to the exercise of the Tribunal’s function and thus the seriousness of the error: SZRKT at [111] per Robertson J;
c)the Tribunal is obligated to give ‘proper and realistic consideration’ to the claims and evidence before it: Carrascalao v Minister for Immigration & Border Protection [2017] FCAFC 107; (2017) 252 FCR 352; (2017) 347 ALR 173 at [29], [32]-[33] pre Griffiths, White and Bromwich JJ;
d)the Tribunal’s obligation under s.368 of the Migration Act to prepare a statement of reasons does not require it to discuss every item of evidence to which it had regard: Yusuf at [69] per McHugh, Gummow and Hayne JJ; and
e)a court will generally be entitled to infer that a matter that is not mentioned in the reasons was, at the very least , not considered to be material: SZSRS [at [33] per Katzman, Griffiths and Wigney JJ.
The Court is of the view that some of the above documents were in fact referred to by the Tribunal and the issue of weight is a matter for the Tribunal (as discussed in [48]) above and those documents which were not referred to were not considered to be material, and so for example, the Tribunal clearly did not take issue with the fact that the sponsor was an Australian Citizen therefore the Certified Copy of her Australian Birth Certificate was not a piece of evidence which needed to be set out. The Sponsor’s statement at Annexure BMM4 of Ms Mellino’s Affidavit provided as evidence of the Sponsor’s commitment to the relationship was not specifically referred to in the Tribunal Decision, but the Tribunal’s findings were that after considering all the available evidence individually and cumulatively it was not satisfied that at the time of the Partner Visa application on 30 August 2013 that there was a mutual commitment to the relationship to the exclusion of all others: CB 654 at [79], and it can therefore be inferred that the Sponsor’s statement was considered. That said, it would have been preferable, if only for the sake of clarity, if the Tribunal had as least adverted to the Sponsor’s statement.
Accordingly, the fact that the Tribunal did not refer to some documents and gave little weight to other documents in these circumstances was a matter for the Tribunal, therefore, no jurisdictional error in the Tribunal Decision is established by ground 9.
Ground 10
Applicant’s submissions
The applicant made the following submissions in relation to ground 10:
a)towards the end of the hearing the Tribunal stated that it may have to adjourn the hearing and set up another time: Tribunal Transcript page 29;
b)the Tribunal then further commented that:
I might have to adjourn to another hearing. I'm not sure if there is anything further you want to say to me.
c)the applicant then gave a long oral submission detailing the breakdown of his relationship with the Sponsor. At the end of that submission the Tribunal stated 9 (at the Tribunal Transcript, page 31) as follows:
I'm really going to have to close the hearing and adjourn to another.
d)the Tribunal then discussed the timing of the resumed hearing with the agent and indicated it would be in September ( Tribunal Transcript page 33);
e)the Tribunal concluded by saying:
I'm going to adjourn pending another hearing rather than just adjourn, depending on the information that I get.
f)it is clear from the above discussion that the Tribunal intended to hold another hearing and that was not conditional upon the further documents that the applicant’s migration agent was going to provide;
g)in circumstances where the Tribunal stated its intention to hold another hearing four times, and where the Tribunal had not explored a number of issues critical to the review, the failure to hold another hearing constituted jurisdictional error.
Minister’s submissions
In relation to ground 10 the Minister submitted that:
a)the Tribunal on a proper construction of the interaction between the parties at the Tribunal hearing it cannot be accepted that the Tribunal intended to hold a further hearing or that the requirements for a further hearing was not conditional on the further documents to be provided by the agent;
b)the Tribunal at hearing noted the Tribunal Transcript at page 31-33:
My question today is the genuineness of the relationship because as I said you've got a judicially determined claim domestic violence. If you can get through the hurdle of …was the relationship continuing and genuine.
…
If I can get a hearing room between or a cancellation between now and then, I may not need to. Look I may not.
…
Once a - I'm going to adjourn, pending further hearing rather than just adjourn.
Depending on the information that I get.
…
And whether I need further,
c)in the context of that exchange with the Tribunal the applicant's representative noted:
Yeah, so we'll see how we go. We'll either hear from you saying that it's not required, or we’ll hear from you saying that it is.
d)it is evident that the Tribunal expressly noted that it may not need to convene a further hearing and that that would depend on the information received after the Tribunal hearing and that the applicant's representative confirmed they would wait to be notified as to whether a further Tribunal hearing was required; and
e)all relevant matters and evidence which formed the basis for the Tribunal's Decision had been canvassed by the applicant at the Tribunal hearing and otherwise prior to the Tribunal Decision being made. As nothing new had arisen there was no need for the Tribunal to convene a further hearing.
Consideration of ground 10
The applicant’s contention is that the Tribunal told the applicant it would hold a further hearing and did not do so, and therefore made a decision which was procedurally unfair to the applicant or was a breach of s.360 of the Migration Act.
The Court notes that the basic principle in relation to procedural fairness is that the applicant should have an opportunity to put their case and to meet that case that is put against them: Re Minister for Immigration & Multicultural Affairs & Another Ex Parte Miah [2001] HCA 22; (2001) 206 CLR 57; (2001) 75 ALJR 889; (2001) 179 ALR 238, at [99] per Gaudron J. See also s.360 of the Migration Act set out at [129] above.
The following relevant exchange as to whether the Tribunal intended to hold a further Tribunal hearing is set out it page 29-33 of the Tribunal Transcript:
M: I may have to adjourn the hearing and maybe set up another time unfortunately.
BD: I assume that that might ... after we saw your schedule, you've had a busy couple of days.
M: I might have to adjourn to another hearing. I'm not sure if there is anything further you want to say to me.
…
M: I'm really going to have to close the hearing and adjourn to another. My question today is the genuineness of the relationship because as I said you've got a judicially determined claim domestic violence. If you can get through the hurdle of ... was the relationship continuing and genuine.
…
M: If I can get a hearing room between or a cancellation between now and then, I may not need to. Look I may not.
BD: Yeah.
M: By the time I go through all the information that you've given me today, plus the bank statements when they come.
BD: Yeah, we'll try to get those as soon as possible. Banks are pretty good these days at providing statements so I'll get that (inaudible)
M: (inaudible)
BD-- statements to go into the accounts.
M: That should be fine, that should be sufficient. So I'll get those and see but it may not be until September.
BD: Yeah
M: Sorry about that.
BD: That's okay.
M: There's just-
BD: Yeah, so we'll see how we go. We'll either hear from you saying that it's not required, or we'll hear from you saying that it is.
M: Once a- I'm going to adjourn, pending further hearing rather than just adjourn -
BD: Mm-hmm
M: -- depending on the information that I get.
BD: Yep.
M: OK? And whether I need further.
BD: OK.
At the start of the relevant exchange between the Tribunal and migration agent it is evident that the Tribunal expressly noted that it ‘may’ or ‘might’ have to adjourn for another Tribunal hearing. The Court notes that the Tribunal then went onto say ‘I'm really going to have to close the hearing and adjourn to another’ however this was followed by an exchange in the context of the Tribunal Member receiving additional documents in the form of the applicant’s bank statements and whether upon receipt of those documents, a further Tribunal hearing would be required, to which the response of the applicant’s representative was, ‘Yeah, so we'll see how we go. We'll either hear from you saying that it's not required, or we'll hear from you saying that it is.’ The Tribunal Member then goes on to say that there will be an adjournment ‘pending further hearing, rather than just adjourn, depending on the information that I get. Ok, and whether I need further.’
The Court notes that the Tribunal Hearing record does record next to the Hearing Outcome that the ‘Hearing adjourned to another day – further hearing to be arranged’ but also that the “applicant/representative is to provide information/comments/response in writing by – 2 weeks”, and in this context, together with the oral exchange at the Tribunal Hearing, it is to be read as an adjournment conditional upon the applicant/representative providing information: CB 491.
The Court is of the view that it is clear from the above exchange that the Tribunal was considering the possibility of holding another Tribunal hearing but that it was conditional upon the further documents that the migration agent was going to provide
In the above circumstances, the fact that the Tribunal did not hold another Tribunal hearing was not procedurally unfair and did not breach s.360 of the Migration Act. It follows that ground 10 is not made out and establishes no jurisdictional error in the Tribunal Decision.
Conclusion and orders
The Court has concludes that:
a)pursuant to s.477(2) of the Migration Act the time in which to file the Judicial Review Application is to be extended to the time of actual filing;
b)grounds 4 and 7 of the Further Amended Judicial Review Application has been made out and establish jurisdictional error in the Tribunal Decision, and it follows that writs for appropriate prerogative relief ought to issue;
c)the other grounds of the Further Amended Juridical Review Application have not been made out.
There will also be an order that the name of the Minister be amended to read “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
The Court will hear the parties as to costs.
I certify that the preceding one hundred and fifty-six (156) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Date: 13 September 2019
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