Enua v Minister for Immigration
[2019] FCCA 3604
•12 December 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ENUA v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 3604 |
| Catchwords: MIGRATION – Partner visa – decision of the Administrative Appeals Tribunal – whether Tribunal gave proper consideration – whether applicant denied procedural fairness – jurisdictional error established – writs issued. |
| Legislation: Migration Act 1958 (Cth), ss.5CB, 65, 359, 359A, 359AA. 362A Migration Regulations 1994 (Cth), reg.1.09A, 1.15A |
| Cases cited: Abebe v Commonwealth (1999) 197 CLR 510 Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 Nguyen v Minister for Home Affairs [2019] FCA 1095 |
| Applicant: | EPHRAIM BONIFACE ENUA |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 376 of 2017 |
| Judgment of: | Judge Kendall |
| Hearing date: | 21 August 2019 |
| Date of Last Submission: | 25 October 2019 |
| Delivered at: | Perth |
| Delivered on: | 12 December 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr NS Nandan |
| Solicitors for the Applicant: | My Visa Lawyers |
| Counsel for the First Respondent: | Mr PJ Hannan |
| Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
ORDERS
A writ of certiorari issue directed to the second respondent quashing the decision dated 27 June 2017.
A writ of mandamus issue directed to the second respondent requiring it to reconsider and determine the applicant’s application for review according to law.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 376 of 2017
| EPHRAIM BONIFACE ENUA |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
On 12 July 2017 the applicant filed a judicial review application in this Court seeking review of a decision of the Administrative Appeals Tribunal (the “Tribunal”) dated 27 June 2017.
The Tribunal affirmed a decision of a delegate of the first respondent (the “Minister”) not to grant the applicant a Partner visa (the “visa”) under s.65 of the Migration Act 1958 (Cth) (the “Act”).
This matter was originally set down for hearing on 29 October 2020. It was then moved forward to 21 August 2019. The Court advised the applicant and Minister of this change by email dated 11 June 2019. On 27 June 2019, the applicant retained legal representation.
The applicant filed written submissions on 12 July 2019. Those submissions indicated that the applicant would be seeking leave to amend the application for judicial review and advised that the applicant would file an affidavit annexing a copy of the transcript of the Tribunal hearings.
The Minister opposed leave to amend the application. No formal application for an adjournment was made.
The Minister filed written submissions on 31 July 2019. Those submissions addressed why leave to rely on any amended application and transcript evidence should not be granted. The grounds of the application as filed on 12 July 2017 and the proposed amended grounds of review as articulated in the applicant’s written submissions were, however, addressed.
At the hearing of the matter on 21 August 2019, the applicant was represented by Mr Nandan. The Minister was represented by Mr Hannan of Counsel.
At the conclusion of the hearing on 21 August 2019, the Court made orders allowing the applicant to rely on an amended application (such application being formally filed on 23 August 2019). Further, noting that Mr Nandan’s oral submissions seemed to particularise the applicant’s amended grounds, the Court allowed the Minister an opportunity to provide further written submissions. The applicant was also provided an opportunity to respond.
With that in mind, the evidence before the Court consists of:
a)the affidavit of Kate Briscoe sworn 13 August 2019;
b)the affidavit of Kate Briscoe sworn 15 August 2019;
c)a court book (“CB”) numbering 417 pages, which was marked as Exhibit 1; and
d)the Administrative Appeals Tribunal Guidelines on Credibility, which was marked as Exhibit 2.
The Court has also referenced:
a)the amended application filed on 23 August 2019;
b)written submissions from the applicant dated 10 July 2019;
c)written submissions from the Minister dated 31 July 2019;
d)further written submissions from the Minister dated 19 September 2019;
e)further written submissions from the applicant dated 25 October 2019; and
f)a transcript of the hearing on 21 August 2019.
The Court has considered each of these materials in preparing of these reasons for judgment.
The Court has done its best to decipher the written submissions made to the Court. Unfortunately, the grounds of review (discussed below) seem to refer to multiple “errors” and do so without clarity and explanation. Overall, the written submissions tend to complicate the issues before the Court and/or lack clarity.
Background
The background to this matter is set out at [15]-[42] of the Minister’s written submissions filed on 31 July 2017. The Court has reviewed the Court Book in detail and cross-checked the Minister’s references to the material in the Court Book. The Court is satisfied that the Minister’s submissions accurately reflect the history relevant to this matter. The Court adopts the summary provided (which was not disputed) as its own, as follows.
The applicant was born in the Federal Republic of Nigeria (CB 1-2 and 60). The sponsor for relevant the partner visa was born in the Democratic Republic of Congo (the “DRC”) (CB 10-11 and 70-71). The sponsor’s son from a previous relationship was also born in the DRC (CB 52 and 72).
On 18 March 2010, the sponsor arrived in Australia (CB 33). In 2013, the applicant arrived in Australia on a student visa.
The applicant states that he first met the sponsor on 3 July 2013 and that they began a committed de-facto relationship on 1 January 2014 (CB 20 and 22).
On 14 August 2015, the applicant applied (with the assistance of a migration agent) for the visa on the basis of his relationship with the sponsor (CB 1, 5, 10, 32, 60, 73-76 and 124). The sponsor was, by this time, a permanent Australian resident (CB 33) and on 9 March 2016 the sponsor and her son became Australian citizens (CB 183).
On 30 August 2016, the then Department of Immigration and Border Protection (the “Department”) sent the applicant a letter requesting further information relevant to his application (CB 130-137). Importantly, the Department requested evidence as to the length of the claimed de-facto relationship prior to lodgement of the application and evidence of the relationship since lodgement (CB 135-136).
On 20 September 2016, the applicant’s migration agent sent the Department a letter in response to the request. A significant number of additional supporting documents were provided (CB 138-179). On 27 September 2016, the applicant’s migration agent sent the Department a number of extra documents (CB 180-185).
On 10 October 2016, the delegate refused to grant the partner visa (CB 189-215).
On 26 October 2016, the applicant (through his migration agent) applied to the Tribunal for a review of the delegate’s decision (CB 216-217).
On 28 February 2017, the applicant applied to the Tribunal under s.362A of the Act for access to certain written material. On 24 March 2017, the Tribunal gave the applicant a file containing the s.362A material (CB 225 and 228).
The applicant was invited to attend a hearing at the Tribunal (CB 231). The applicant responded and asked that evidence be taken from Ms Lyttle and Mr Igben (CB 238).
On 6 June 2017, the applicant’s migration agent sent written submissions to the Tribunal (CB 242-256). Those submissions attached copies of various documents including bank statements (with highlighting and annotation), electricity bills and statutory declarations from Mr Igben and Ms Lyttle (CB 242-357).
On 15 June 2017, the Tribunal conducted a hearing. The applicant and his migration agent were present at the hearing. The hearing lasted for approximately one hour (CB 358 and 360).
The applicant’s sponsor had been advised that the Tribunal would require her to give evidence. However, the Tribunal could not contact the sponsor during the hearing (CB 232 and 397 at [4]). The Tribunal adjourned the hearing of the review to 22 June 2017 to enable the sponsor to provide evidence.
On 22 June 2017, the Tribunal conducted a further hearing at which the applicant, his migration agent and the sponsor were present (CB 366 and 397 at [4]). The hearing lasted 20 minutes. The applicant’s sponsor appeared by telephone (CB 397 at [5]). The Tribunal also allowed the applicant to submit further documents (CB 368) (mobile phone records and photographs) which were subsequently provided to the Tribunal (CB 370-392).
On 27 June 2017, the Tribunal affirmed the delegate’s decision not to grant the applicant the visa (CB 396-400).
The Tribunal’s Decision and Legislative Framework
The Tribunal’s decision is six pages in length and spans 41 paragraphs. It can be summarised as follows.
The Tribunal summarised the background to the application. It was noted that the delegate had refused to grant the visa on the basis that the applicant and the sponsor were not in a genuine and continuing de-facto relationship (CB 397 at [1]-[3]).
The Tribunal then referred to the first hearing of the matter before it (on 15 June 2017). It was noted that, on that occasion, the sponsor did not attend and was unable to give evidence by telephone (CB 397 at [4]). The Tribunal then adjourned the hearing to the following week. On that occasion both the applicant and the sponsor attended by telephone.
During the course of the second hearing the Tribunal noted (CB 379 at [5]-[6]) that:
a)the sponsor seemed unwilling to either take an oath or an affirmation and seemed confused about the purpose of the hearing. When it was explained that declining to be sworn in would affect the weight the Tribunal would give to the sponsor’s evidence, the sponsor took an affirmation;
b)the applicant made an introductory statement advising that the sponsor had been in a car accident the day before and that she was “traumatised”. He asked the Tribunal to take this into consideration; and
c)the applicant indicated that he would provide evidence about the accident. He was given until the following day to do so. The applicant subsequently provided evidence of “smash repairs” (CB 400 at [34]).
The Tribunal then summarised the applicant’s claims about how he met the sponsor and indicated that they had entered into a de-facto relationship in 2014 (CB 297 at [9]-[11]).
The Tribunal then identified that the relevant issue was whether the applicant and the sponsor were in a genuine and continuing relationship (CB 398 at [12]). The Tribunal summarised the relevant legislative provisions applicable to the issue, namely s.5CB of the Act and reg.1.09A of the Migration Regulations 1994 (Cth) (the “Regulations”) (CB 398 at [13]-[15]).
The applicant and the sponsor were claiming to be in a de-facto relationship. Section 5CB of the Act provides:
De-facto partners
(1) For the purposes of this Act, a person is the de-facto partner of another person (whether of the same sex or a different sex) if, under subsection (2), the person is in a de-facto relationship with the other person.
De-facto relationship
(2) For the purposes of subsection (1), a person is in a de-facto relationship with another person if they are not in a married relationship (for the purposes of section 5F) with each other but:
(a) they have a mutual commitment to a shared life to the exclusion of all others; and
(b) the relationship between them is genuine and continuing; and
(c) they:
(i) live together; or
(ii) do not live separately and apart on a permanent basis; and
(d) they are not related by family (see subsection (4)).
(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 1.09A(2)-(3) make provisions for determining whether the conditions of s.5CB(2) exist. Relevantly, reg.1.09A(2)-(3) of the Regulations provides:
(2) If the Minister is considering an application for:
…
(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 in a de-facto relationship with 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.
In relation to the financial aspects of the relationship, the Tribunal:
a)noted that the bank account, which the sponsor had been a signatory to since May 2014, was unclear and did not show which purchases (if any) were made by the sponsor directly (CB 398 at [17]);
b)noted that there was evidence in the form of rent and electricity receipts, receipts for household purchases, a joint household insurance policy and correspondence from the sponsor’s son’s school and from the landlord all addressed to both parties or in both parties’ names (CB 398 at [18]);
c)referred to evidence which showed that the sponsor had received Centrelink benefits and noted that that the applicant had said that the sponsor had declared the claimed de-facto relationship to Centrelink in October 2016. However, the Tribunal also noted that the sponsor’s evidence was that she had not declared the relationship to Centrelink but that she was planning to do so (CB 398 at [19]);
d)found that, as the declaration of the relationship to Centrelink is a legal requirement and it is important evidence of recognition of the relationship by a government body, the failure to declare a relationship which is claimed to have been on foot since 2014 was of “significant concern” to the Tribunal (CB 398 at [20]);
e)stated that from October 2016 the parties appeared to have lived together and had provided declaratory evidence and supporting documents as proof (CB 399 at [21]).
In relation to the nature of the household, the Tribunal (CB 399 at [22]-[24]):
a)noted that the applicant asserted that he had a close relationship with the sponsor’s son; and
b)stated that the parties gave “some consistent evidence” as to how they share household duties.
In relation to the social aspects and level of social recognition of the relationship the Tribunal:
a)summarised the evidence it had before it (CB 399 at [26]);
b)noted that it had concerns that the sponsor’s family, who live locally, had not provided any written evidence and had not been called as witnesses before the Tribunal (CB 399 at [27]); and
c)recited that the sponsor gave evidence that in January 2017 (when the applicant and sponsor went to the DRC), the sponsor went to see her mother, she stayed with her mother for the month, the applicant did not meet her mother (nor has he met her mother) and that during the time when she was in the DRC she did not know where the applicant was (CB 399 at [28]).
In relation to the nature of the applicant’s and sponsor’s commitment to each other:
a)the Tribunal noted that the applicant and sponsor had stated that they had been engaged since December 2016. However, there was no independent evidence to suggest this was the case and no evidence that this event was marked or celebrated in any way (CB 399 at [30]);
b)the Tribunal stated that in relation to the evidence regarding their plans for the wedding, this was limited to their stating that the wedding would be in Australia (CB 399 at [31]). There was no evidence of any concrete plans relating to the wedding;
c)at hearing, the applicant indicated that he and the sponsor would visit Nigeria so that the sponsor could be introduced to the applicant’s kinsmen (CB 400 at [32]); and
d)in respect of future children, the applicant indicated that he and the sponsor hoped to have two more children; however, when the sponsor was asked about this, she refused to answer before stating that she did not know (CB 400 at [33]).
The Tribunal then considered any “other relevant considerations” (specifically, the applicant’s submissions regarding the sponsor having been traumatised by a car accident the day before the hearing) (CB 400 at [34]).
The Tribunal then stated that it had formed the view that the sponsor was not forthcoming in her evidence and did not appear to want to assist the Tribunal. The Tribunal considered the fact that the sponsor had been in a car accident the preceding day but was not satisfied that her ability to give evidence was affected in any way by the accident (CB 400 at [35]).
The Tribunal stated that, while evidence of the accident and subsequent car repairs had been provided, no medical evidence relating to the sponsor’s condition had been provided (CB 400 at [36]). The Tribunal further observed that the sponsor’s evidence did not indicate that she was “traumatised”. Rather, the sponsor “struck the Tribunal” as “aggressive and deliberately obstructive” throughout the hearing (CB 400 at [36]).
At [37], the Tribunal stated as follows:
While the Tribunal accepts that the parties appear to live together and there is no indication that either party is involved with a third person, the Tribunal was not satisfied that the parties have evidenced a mutual commitment to a shared life together or that they are in a genuine and continuing de-facto relationship.
In the absence of finding a genuine and continuing de-facto relationship, the Tribunal concluded that the applicant did not meet s.5CB of the Act.
On the basis of that finding, the Tribunal affirmed the delegate’s decision not to grant the applicant the partner visa he was seeking (CB 400 at [38]-[41]).
Proceedings in this Court
Leave to amend the application for judicial review and rely on the Tribunal Transcripts
The Court indicated at the hearing of this matter that it would incorporate its reasons for granting leave to amend the application for judicial review into the Court’s final written reasons.
When considering whether leave to amend the application should be granted the Court generally looks at the following matters:
a)the reason for the delay in seeking the amendment and the explanation for the need to amend the application;
b)any prejudice suffered by the opposing party;
c)case management principles (such as the stage the proceedings are at and whether any delay will be caused if the amendment is allowed); and
d)the merit of the proposed grounds.
In relation to the reason for the delay in filing an amended application, an affidavit from the applicant affirmed 16 August 2019 was read into evidence. That affidavit explained that the applicant did not have the funds to secure legal representation until 27 June 2019. The affidavit indicated that, after filing the application, the applicant had made attempts to seek legal assistance from Legal Aid and Law Access but was unsuccessful in retaining legal representation.
The applicant was unrepresented until very late in the piece. While a lack of legal representation is not sufficient in and of itself for allowing a late amendment to an application, the Court affords the explanation provided some weight.
The Minister claimed no prejudice in the event leave was granted. The Minister was given the proposed amended application and written submissions prior to preparing his own written submissions. The Minister’s submissions addressed the proposed grounds in significant detail and Counsel for the Minister indicated at the hearing that he was in a position to address the amended grounds on the day of the hearing. This too weighs in favour of leave being granted.
As noted, the Minister was prepared to address the grounds at the hearing and there was no need for an adjournment of the proceedings. The requirement for further written submissions had minimal impact on the Court’s case management abilities. This weighs in favour of leave being granted.
Finally, there is merit in the amended grounds as articulated. Clearly, the proposed grounds are in a form that has a greater prospect of success than the sole ground of the judicial review application filed by the applicant on his own behalf. The merit evident in the proposed grounds weighs in favour of leave being granted. It cannot be said that the proposed grounds are unarguable or obviously futile: SZSRR v Minister for Immigration & Border Protection [2017] FCA 328.
While the explanation for the late amendment was less than ideal, the Minister was not prejudiced by the late amendment and the grounds as articulated are sufficiently arguable. In these circumstances, it is necessary in the interests of the administration of justice to grant leave to the applicant to rely on the amended application.
As for the affidavits annexing the transcripts of the hearings before the Tribunal, the Minister objected to these on the basis of relevance. In the course of the applicant’s submissions, a number of references to the transcripts were made. It was clear to the Court that the applicant’s case required an analysis of the evidence that was given at the Tribunal’s hearing.
On this basis, the Court grants leave to the applicant to rely on the affidavits of Kate Briscoe sworn 13 August 2019 and 15 August 2019.
Grounds of Review
Ground 1 and Ground 2
It is not entirely clear why grounds 1 and 2 were pleaded as separate grounds of review. For reasons provided below, the Court will address grounds 1 and 2 together.
With particulars, grounds 1 and 2 provide:
1. The Tribunal’s decision if infected with error in that the Tribunal failed to have regard to, or make findings on, the circumstances of the Applicant’s relationship with Ms Emoko as required by reg. 1.09A(3)(a), (b) and (c) of the Migration Regulations 1994.
Particulars
Financial Aspects of the Relationship
(a) The Tribunal fails to make findings in relation to reg 1.09 A (3) (a)
(i) Written evidence relating to financial aspects of the of relationship is found at CB 141 - 155 & 257 - 302.
(ii) Oral evidence relating to financial aspects of the relationship is found:
a. at page 7 of the annexed document in the Affidavit of Kate Briscoe sworn on 15/08/2019; and
b. at pages 13 -23 of the annexed documents in Affidavit of Kate Briscoe sworn on 13/08/2019.
(iii) The totality of the consideration by the Tribunal of the financial aspects of the relationship comprises CB 398 [16], [17], [18], [19] (first line only) and CB 399 [21] and CB 400 [37].
(iv) CB 398 [16] is a regurgitation of reg 1.09 A (3) (a).
(v) CB 398 [17], [18], [19], [20] and CB 399 [21] are recitals of some features of the evidence or some observations on the evidence.
(vi) The Tribunal should have but did not apply an active intellectual process and give proper, genuine and realistic consideration to the prescribed circumstances, having regard to the evidence.
(vii) The Tribunal should have formed a view and not left the Applicant or the sponsor guessing about what its view was in respect of this prescribed circumstance.
(viii) The conclusion at CB 400 [37] fails to make any finding at all or any required finding in relation to the financial aspects of the relationship.
(ix) There is no evidence elsewhere in the decision record that the finding is otherwise made.
Nature of Household
(b) The Tribunal fails to make findings in relation to reg 1.09 A (3) (b)
(i) Written evidence relating to nature of the household aspects of the of relationship is found at CB 399 [23] [24]
(ii) Oral evidence relating to the nature of household is found:
a. at page 7 of the annexed document in the Affidavit of Kate Briscoe sworn on 15/08/2019; and
b. at pages 14 -16 of the annexed document in Affidavit of Kate Briscoe sworn on 13/08/2019.
(iii) The totality of the consideration by the Tribunal of the nature of household comprises CB 399 [23] [24].
(iv) CB 399 [22] is a regurgitation of reg 1.09 A (3) (b).
(v) CB 398 [23] [24] are recitals of some features of the evidence or some observation on the evidence.
(vi) The Tribunal should have but did not apply an active intellectual process and give proper, genuine and realistic consideration to the prescribed circumstances, having regard to the evidence.
(vii) The Tribunal should have formed a view and not left the Applicant or the sponsor guessing about what its view was in respect of this prescribed circumstance.
(viii) The conclusion at CB 400 [37] fails to make any finding at all or any required finding in relation to the nature of the household.
(ix) There is no evidence elsewhere in the decision record that the finding is otherwise made.
Social Aspects of the Relationship
(c) The Tribunal fails to make findings in relation to reg 1.09 A (3) (c)
(i) Written evidence relating to social aspects of the of relationship is found at including but not limited to CB 38, 76 -77, 80-81, 83-88, 91-101, 106, 185 & 355-357.
(ii) Oral evidence relating to social aspects of the of relationship is found:
a. At page 6 of the annexed document in the Affidavit of Kate Briscoe sworn on 15/08/2019; and
b. at pages 10 -12 of the annexed documents in Affidavit of Kate Briscoe sworn on 13/08/2019.
(iii) The totality of the consideration by the Tribunal of the social aspects of the relationship comprises CB 398 [19] (last two lines), [20] [26] [27] & [28]
(iv) CB 399 [25] is a regurgitation of reg 1.09 A (3) (c).
(v) CB 398 [19] (last two lines), [20] [26] [27] & [28] are recitals of some features of the evidence or some observation on the evidence.
(vi) The Tribunal should have but did not apply an active intellectual process and give proper, genuine and realistic consideration to the prescribed circumstances, having regard to the evidence.
(vii) The Tribunal should have formed a view and not left the Applicant or the sponsor guessing about what its view was in respect of this prescribed circumstance.
(viii) The conclusion at CB 400 [37] fails to make any finding at all or any required finding in relation to the social aspects of the relationship.
(ix) There is no evidence elsewhere in the decision record that the finding is otherwise made.
Nature of the Persons’ Commitment to Each Other
(d) Note: No challenge is pressed in respect of failure to make relevant findings as required by Regulation 1.09 A (3) (d) because CB 400 [37] uses words and language which on a fair reading can be considered as a finding in relation to the nature of the persons’ commitment to each other.
(e) Regulation 1.09 (A) De-facto Partner and De-facto Relationship
(i) Paragraph 3 of the regulation requires the decision maker to traverse each of the four aspects of the relationship analogous to making a train journey on a train which is required to stop at all stations. The error here is made when the decision maker has instead taken an “express train” at which it was required to stop. That is not to say that the decision maker was required to disembark the train at each stop, but it must have at least paused at each station and be cognisant of having paused and considered its surrounds.
(ii) CB 400 [37] is but conclusion and not a finding made along the way to that conclusion.
2. The Tribunal’s decision is infected with error in that the Tribunal failed in its statutory obligation to comply with the Migration Act which provides that where the Tribunal makes a decision on a review, the Tribunal must make a written statement that “sets out the findings on any material questions of fact
Particulars
(a) The Migration Act 1958 (section 368 (1) (c)) and The Acts Interpretation Act 1901 (section 25D) requires the Tribunal to set out the findings of fact which the Tribunal considered to be material to the decision it has made.
(b) The absence of findings about relevant matters means that an inference should be drawn that they were not taken into account.
(c) Findings of fact, including in relation to “financial aspect of the relationship”, “the nature of the household”, “social aspects of the relationship” and “the nature of the persons’ commitment to each other” are not evidenced in the Tribunal’s written statement.
(d) The requirement to give reasons is an incident of the judicial process and reasons ought to be given in any case in which an appeal lies from the decision in order to allow that right of appeal to be exercised.
(e) The reasoning on the basis of which the tribunal reached its decision is not revealed by its reasons.
1. At CB400 [37] The tribunal purported to discharge its statutory function but failed because by stating its conclusion at such a high level of generality, the basis for the conclusion is not exposed.
2. The reasons do not disclose that the tribunal considered fundamental aspects of the review applicants’ case such as, for example, the evidence of the 7 statutory declarations CB 91, 93, 95, 169, 171, 328 & 330.
3. While the tribunal references five (5) 888 forms at CB 399 [26] it does so in the context of “social recognition” and is a fly-by the way, without any evidence of considering the six (6) statutory declarations in the context of each and every one of the four (4) prescribed circumstances.
(f) In the absence of findings in its written reasons, in respect of the prescribed circumstances there is no evident and intelligible justification to assert its conclusion at CB 400 [37].
Consideration – Grounds 1 and 2
Although not entirely clear, grounds 1 and 2 seem to be arguing the same thing – i.e., that the Tribunal failed to give proper, genuine and realistic consideration to all of the matters listed in reg.1.09A(3) of the Regulations.
The Full Court of the Federal Court explained the Tribunal’s obligations in similar circumstances in He v Minister for Immigration & Border Protection [2017] FCAFC 206. The applicant seems to allege that the Tribunal here did not follow the Full Court’s guiding principles in He as to what is required in order to comply with reg.1.09A(3).
In Nguyen v Minister for Immigration & Border Protection [2018] FCA 1374 at [46] (“Nguyen”), Justice White summarised the principles relevant to the consideration of reg.1.09A of the Regulations as derived from He.
The Court notes that both He and Nguyen consider (and refers to) reg.1.15A of the Regulations. The same principles apply to reg.1.09A.
Relevantly, Justice White in Nguyen stated:
46. As the decision of the Full Court in He v Minister for Immigration and Border Protection [2017] FCAFC 206; (2017) 255 FCR 41 provided the foundation for the appellant’s submissions on this ground, it is convenient to refer first to that judgment. In that case, the Full Court (Siopis, Kerr and Rangiah JJ) considered the effect of s 5F of the Act and of reg 1.15A of the Regulations. Their Honours concluded:
(a) the matters set out in reg 1.15A(3) are relevant considerations which the decision‑maker is bound to consider, at [52];
(b) this requires the decision‑maker to bring an active intellectual process to each matter, giving proper, genuine and realistic consideration to each, at [52];
(c) 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 legislative intention is that the enumerated matters must be addressed, and not merely thought about, at [76]‑[77]. However, it is not necessary for the Tribunal to address each of the enumerated matters in a formulaic manner. Nor is it necessary that it make findings upon every piece of evidence bearing upon an enumerated matter. Nevertheless, the Tribunal is required to make findings upon the matters enumerated in reg 1.15A(3), at [82]‑[83]; and
(d) the failure by the Tribunal set out in its reasons a finding concerning any of the enumerated matters may (but will not necessarily) lead to an inference that the Tribunal member made no such finding as part of his or her mental process in arriving at the decision, at [79].
(see also Nguyen v Minister for Home Affairs [2019] FCA 1095 at [17])
As noted in para (d) above, the failure to set out a finding on a matter in the Tribunal’s decision allows the Court to draw an inference that the Tribunal made no finding and did not engage with that matter when making its ultimate finding. If that is the case, then the Tribunal can be found to have erred.
The Court again refers to Justice White’s comments in Ngyuen at [60]-[62]:
60. …it is not necessary for the Tribunal to refer to every item of evidence bearing on a matter. The very fact that the Tribunal member chose to use the four topics mentioned in subreg (3) as the headings for sections of her reasons, tends to suggest the Tribunal has had regard, at least to some extent, to those matters.
61. The difficulty, however, lies with the level of abstraction with which the Tribunal has addressed each topic. When the Tribunal refers at a high level of generality to one of the requisite matters, it may be said that the Tribunal has “considered” that matter. However, reg 1.15A requires more than a generalised consideration, as the concluding words of reg 1.15A(2) indicate. They oblige the Minister (and the Tribunal when standing in his shoes) to consider “all of the circumstances” of the relationship “including” those set out in subreg (3). The requirement that the Tribunal consider all of the circumstances is inconsistent with a requirement that the subreg (3) matters be considered merely as abstract topics. Further, as the Full Court noted in He, the obligation to “consider” requires the decision maker to bring an active intellectual process to each matter: Tickner v Chapman (1995) 57 FCR 451 at 462, 464 and 495 6; Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107, (2017) 252 FCR 352 at [36] [45]; Bondelmonte v Bondelmonte [2017] HCA 8, (2017) 259 CLR 662 at [43].
62. In the present case, there is so much material to which the Tribunal member did not refer, or about which the Tribunal member did not make findings, that it cannot be concluded that the Tribunal brought “an active intellectual process” to its consideration of the reg 1.15A(3) matters, in the manner in which the Full Court decision in He indicates is required.
It must be remembered that the Tribunal’s reasons are not to be read with an eye attuned to error. They are to be read as a whole. Further, there is no need for the Tribunal to make an express finding on each of the matters if it can be demonstrated, inferred or seen to be implicit from the Tribunal’s reasons as a whole that a finding was made: He at [80]-[87].
In this matter, the applicant referred to the length of the Tribunal’s decision. It seems to have been suggested that this points to some sort of error.
Brevity alone does not evidence error of the sort relevant to these proceedings. Rather, the Court must be satisfied that the reasons provided (regardless of length) reflect meaningful engagement with the evidence and the relevant considerations in reg.1.09A(3). If the Tribunal’s reasons demonstrate that the Tribunal considered (i.e. made findings on) each of the matters in reg.1.09A(3) then there is no error.
Further, to the extent that the applicant refers to particular pieces of evidence in the particulars to ground 1 and asserts that the Tribunal did not make findings in relation to this evidence, there is no obligation for the Tribunal to do so: He at [83]. The obligation to make findings is in respect to the matters in reg.1.09A(3) - not every piece of evidence provided in support of those matters.
Here, the Court has significant concerns with the Tribunal’s decision.
The Court notes that, at various points in its decision, the Tribunal simply recites the evidence before it (see [18], [21], [23], [26], [28] and [32]-[33]). There is no attempt to explain what weight or significance the Tribunal attaches to that evidence. The statements that follow simply “float”. In effect, they leave the applicant “hanging” as to what the Tribunal’s assessment of the evidence before it actually is.
As was the case in Nguyen, there is a large amount of material here that is referred to with “a high level of abstraction”. The Tribunal’s reasons fail to demonstrate any active mental engagement with the evidence referred to. There is no attempt to indicate what the evidence referenced does or does not prove or suggest.
In relation to the financial aspects, the Tribunal shows some limited engagement with some of the evidence and particular matters in reg.1.09A(3)(a) (see [17] and [19]-[20]). However, the Tribunal also refers (at a high level of generality) to evidence that relates to other matters in reg.1.09A(3)(a) (see [18] and [21]).
Of concern here is the fact that the Tribunal does not outline what evidence it prefers and why some evidence is rejected (if that is the case). The reasoning provided is, at times, lacking.
Critically, the Tribunal does not suggest that its concerns in relation to some aspects of the evidence (at [17] and [19]-[20]) outweigh the other evidence before it (referenced at [18] and [21]). The Tribunal does not state (nor can it be implied) that, as a whole, the evidence as to financial aspects of the relationship is conclusive or not conclusive of a de-facto relationship. Instead, the Tribunal simply suggests that one aspect of the evidence is limited and that it has significant concerns with another aspect of the evidence. It then refers to other materials without any indication of whether it accepts or places any weight on that evidence. It simply leaves its “conclusion” on reg.1.09A(3)(a), as a whole, hanging. There is no summary of what has just been assessed. In effect, the reader is left guessing as to what conclusion is drawn.
The same can be said in relation to the Tribunal’s assessment of reg.1.09A(3)(b) and (c). The Tribunal merely identifies the evidence, makes a reference or observation in relation to one aspect of the evidence and then “ends”, or moves on, without any identifiable conclusion.
The applicant also refers (in particulars (e) and (f) of ground 2) to statutory declarations provided by various individuals in support of the relationship. The applicant says this evidence was not engaged with.
The Court agrees.
At [26], the Tribunal notes as follows:
Third-party evidence of social recognition provided includes a statement of the applicant's mother and from the Nigerian community, as well as five 888 forms, an invitation to both to a wedding and an invitation to both to a housewarming party.
The content of those declarations is, arguably, not limited to the issue of social recognition. For example, one declaration refers to sharing responsibility for their child. The declarations are also relevant to the issue of the applicant’s and sponsor’s “commitment” to one another.
Significantly, two of the declarations refer to and discuss the “wedding” that the applicant and sponsor were planning (CB 91 and CB 331). Notwithstanding this, the Tribunal notes at [30] that the applicant offered “no independent evidence of this” – “this” being a reference to the applicant and sponsor being engaged. Clearly, there was independent evidence.
In light of the high level of abstraction in reference to the evidence before it (see [18], [21], [23], [26], [28] and [32]-[33]) and the failure to address statutory declarations that were highly probative, the Court finds overall that the Tribunal failed to properly consider the evidence provided in support of the matters in reg.1.09A(3). Engagement of the sort required by both Nguyen and He is lacking.
Third, on a reasonably impressionistic view the Court cannot identify what conclusion the Tribunal actually came to in respect of the matters in reg.1.09A(3) as a whole, or the sub-integers (to the extent they were relevant) within.
With respect, the inferences that the Minister says can be drawn from the reasons as a whole require the Court to significantly “read into” the reasons to identify the findings the Tribunal makes in relation to each of the matters in reg.1.09A(3). The Court accepts that it should read the reasons beneficially; however, that does not extend to speculating as to what the Tribunal finds in relation to each of the matters in reg.1.09A(3).
Finally, the Minister’s submissions stress that the Court should not overlook the statements made by the Tribunal at [16], [22], [25] and [29]; i.e., “the Tribunal has had regard to the evidence”. The Minister seems to say that these statements are evidence that the Tribunal properly considered the relevant considerations.
The fact that the Tribunal says that it has had regard to evidence does not of itself establish that it has, substantively, done what is required of it: Minister for Immigration & Border Protection v Maioha [2018] FCAFC 216 at [45].
Here, the statements alone fail to evidence a proper, genuine and realistic consideration to the matters the Tribunal was required to consider. As stated in Nguyen at [61], more is required than “generalised consideration”. Here, as outlined above, the Tribunal’s reasons are expressed at such a high level of generality and abstraction that the Court cannot be satisfied that the relevant matters in reg.1.09A(3) have actually been addressed.
The Court is not satisfied that the Tribunal has engaged with the substance of the representations the applicant made in respect of each of the matters in reg.1.09A(3) in order to inform itself as to the overall question of whether there was a de-facto relationship. The Court cannot be satisfied that the Tribunal has given proper, active and intellectual consideration to all of the relevant matters.
Accordingly, the Tribunal has fallen into jurisdictional error.
Ground 3
Ground 3 provides:
The Tribunal’s decision is infected with error in that the Tribunal failed to afford the applicant procedural fairness and has acted unreasonably in the legal sense
Particulars
Procedural Fairness
(a) The tribunal failed to afford the sponsor procedural fairness by concluding she was aggressive and deliberately obstructive in her participation without putting the applicants on notice.
(b) At CB 399 [26] the Tribunal failed to afford the applicant and the sponsor procedural fairness by not putting them on notice that the fact that the sponsor’s family did not proffer as witnesses was to be held against them in circumstances where many other questions were asked about the sponsor’s family.
(c) At CB [35] [36] of its decision, the Tribunal makes an adverse credibility finding in respect of the sponsor Ms. Emoko on the basis that no medical evidence was provided.
(d) The Applicant was never put on notice that such medical evidence was in fact required, and the consequences to its review of it not being provided.
(e) The Tribunal failed to comply with its own guidelines.
(i) The guidelines, however, are not mandatory, and the Tribunal is not bound by the guidelines given that the Guidelines are published there is a legitimate expectation on the part of the applicant and sponsor that the Guidelines will be adhered to.
(ii) Whilst the failure to abide by the Guidelines on the part of the Tribunal is not a jurisdictional error it robs the applicant of an opportunity to properly scrutinise the decision made and is not procedurally fair and it this procedural unfairness that manifests into a jurisdictional error
Legal Unreasonableness
(a) The conclusion reached at CB 400 [37] in relation to financial aspects of the relationship lacks any intelligible justification and is otherwise irrational and illogical, because it does not follow from the evidence.
(b) The conclusion reached at CB 400 [37] in relation to the nature of the household lacks any intelligible justification and is otherwise irrational and illogical, because it does not follow from the evidence.
(c) The conclusion reached at CB 400 [37] in relation to the social aspects of the relationship lacks any intelligible justification and is otherwise irrational and illogical, because it does not follow from the evidence.
(d) The conclusion reached at CB 400 [37] in relation to the nature of the persons’ commitment to each other lacks any intelligible justification and is otherwise irrational and illogical, because it does not follow from the evidence.
(e) The Tribunal failed to make clear and unambiguous findings as to the evidence it finds credible or not credible and provide reasons for such findings.
(f) The Sponsor’s testimony viewed with a lens that no medical evidence was provided is found to lack credibility and further then appears to “poison the well” in that the testimony of the Applicant and other witnesses is wholly rejected.
(g) In circumstances where there is no evidence of consideration of the statements of five witnesses as well as the statements of the applicant and the sponsor, the Tribunal has failed to consider material which is a relevant mandatory consideration because of the operation of Regulation 1.09A(3) and in turn this grounds legal unreasonableness
There are two grounds articulated in ground 3: one concerning procedural fairness and another concerning unreasonableness (and, more specifically, illogicality).
Consideration – Procedural Fairness
The applicant’s concern in relation to procedural fairness seems to arise from what is stated at [27] and [35]-[36] in the Tribunal’s decision, which state:
27. The Tribunal notes, with some concern, that the sponsor’s family, who live locally, did not provide any written evidence and were not proffered as witnesses before the Tribunal.
…
35. The Tribunal formed the view that the sponsor was not forthcoming in her evidence’ and she did not appear to wish to assist the Tribunal. While the Tribunal considered that she had been in a car accident the preceding day, the Tribunal was not satisfied that her ability to give evidence was affected in any way.
36. The Tribunal notes that while evidence of the accident and car repairs was provided, no medical evidence relating to the sponsor’s condition was provided. Additionally, the Tribunal formed the view, from her evidence, not that the sponsor was “traumatised” but quite the contrary. She struck the Tribunal as aggressive and deliberately obstructive in her participation in the hearing.
Before this Court, the applicant argued that the Tribunal breached the obligations of procedural fairness as:
a)the Tribunal makes an adverse credibility finding in respect of the sponsor on the basis that no medical evidence was provided. The applicant says that the applicant was never put on notice that medical evidence was in fact required and the consequences to the review of it not being provided; and
b)the Tribunal “held against the applicant and sponsor without notice” the fact that none of the sponsor’s family were proffered as witnesses at the hearing.
The Court does not accept that the applicant was denied procedural fairness.
First, the Tribunal was not required to put the applicant on notice of the view it would take of the sponsor’s demeanour. Specifically, the Tribunal was not required to do so in circumstances where the sponsor’s demeanour was not the dispositive issue (i.e., it was not the reason for the Tribunal finding that there was no de-facto relationship).
What was stated at [35]-[36] was ancillary to the Tribunal’s conclusion that the applicant and sponsor were not in a “de-facto relationship”. That is, the “aggressive and deliberately obstructive” impression that the sponsor gave the Tribunal did not transcend into any of the findings or concerns that the Tribunal expressed in relation to the sponsor’s evidence generally.
Further, the Tribunal made no finding that the sponsor being “aggressive and deliberately obstructive” was a reason for the Tribunal finding that the applicant and sponsor were not in a genuine and continuing relationship.
Second, it is not the role of the Tribunal to “make the applicant’s case”. The applicant stated that he would provide evidence that the sponsor was “traumatised” from a car accident. The Tribunal gave the applicant an opportunity to provide that evidence. What the applicant provided was sufficient to demonstrate that an accident had occurred. It was not, however, sufficient to satisfy the Tribunal that the sponsor was “traumatised” or that the accident had had an impact on her ability to give evidence.
It was the applicant’s responsibility to explain to the Tribunal what impact the accident had and to place before the Tribunal the evidence he had in support. What he provided did not satisfy the Tribunal that the accident was of any bearing on the sponsor’s ability to give evidence. It was not the Tribunal’s role to prompt the applicant for evidence so that he might bolster his claim: Applicant S214/2003 v Refugee Review Tribunal [2006] FCAFC 166 at [26].
The Tribunal was not required to put to the applicant under ss.359A, 359AA or 360 of the Act that it considered the sponsor to be “aggressive and deliberately obstructive” or that medical evidence was required.
In relation to the concern that the applicant was not on notice that the absence of evidence from the sponsor’s family may lead to an adverse conclusion being drawn, the Court does not accept that there was any failure to adhere to the procedural fairness obligations in this regard. It was for the applicant to produce the evidence he wished to produce in support of his application: Abebe v Commonwealth (1999) 197 CLR 510 at [187].
Further, the Tribunal is not required to put to an applicant any gaps in the evidence or its thought processes more generally: SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609 at [18]; VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471 at [24]. Here, the absence of evidence from the sponsor’s family was a “gap” in the evidence. It cannot be said here that the Tribunal was required to fill that gap by putting it to the applicant.
There was no obligation to make inquiries of the applicant about why the sponsor’s family did not provide supporting statements. Nor was there a requirement to put to the applicant the Tribunal’s concerns about the absence of that evidence.
For finality, to the extent the applicant states that there was an assumption or reasonable expectation that the Tribunal would take into account the Guidelines when assessing the sponsor’s evidence, there is nothing to suggest the Tribunal has not done so.
Even if it were the case that the Tribunal had not considered the Guidelines, this alone would not necessarily amount to jurisdictional error: SZMDU v Minister for Immigration & Citizenship [2008] FCA 1861 at [24]-[27]. The Guidelines are not a mandatorily relevant consideration.
The Tribunal has accorded with the obligations in pt.5, div.5 of the Act. The Court is satisfied that there has been no error in this regard.
Consideration – Reasonableness
Particulars (a)-(e) need not be addressed. The Court is satisfied that the Tribunal failed to give proper consideration to the matters in reg.1.09A(3) of the Regulations. In those circumstances the conclusion at [37] that the Tribunal was not satisfied the applicant and sponsor were not in a genuine and continuing relationship is infected with error. The conclusion lacks a probative basis as it is not based upon all of the relevant considerations.
In relation to particulars (f) and (g) (and with reference to [35]-[36] of the Tribunal’s decision), contrary to what is contended by the applicant, the Tribunal did not form the view that the sponsor was not credible on the basis of her failure to provide medical evidence. The Tribunal did not use the absence of medical evidence such that it undermined or “poisoned” the Tribunal’s assessment of the evidence of the sponsor, the applicant or any other person.
The sponsor’s credibility was never in issue. The Tribunal did not state that it did not accept the evidence of the sponsor or the applicant. Nor did the Tribunal state that the declarations of the “witnesses” were impugned by any concerns it had with the sponsor’s unwillingness to give evidence.
The applicant relies upon DAO16 v Minister for Immigration & Border Protection [2018] FCAFC 2 (“DAO16”) to suggest that the Tribunal’s finding that the sponsor was “aggressive and deliberately obstructive” caused the Tribunal to “wholly reject the testimony of the Applicant and the other witnesses”.
The Tribunal’s evaluation of the other evidence was independent of any concerns it had in relation to the sponsor’s “aggressive and deliberately obstructive” demeanour. For example:
a)the Tribunal was concerned that the sponsor had not declared the relationship to Centrelink because it was a “legal requirement” for her to do so (i.e. not because of her demeanour);
b)the Tribunal was concerned with the evidence in relation to the social recognition of the relationship because there was an absence of evidence from the sponsor’s family (not because the sponsor was evasive or obstructive); and
c)with respect to any shared commitment between the applicant and sponsor, it was noted that there was no independent evidence, or any evidence at all, that the pair were engaged to be married (noting that this was incorrect, as explained above). Hence, it was the (incorrect) absence of corroboration as opposed to the sponsor’s aggression or being obstructive that was determinative.
The Tribunal’s statement that the sponsor was “evasive and deliberately obstructive” was simply an observation. It had no bearing on the Tribunal’s assessment of the evidence (noting that the “assessment” made was generally lacking and shows a failure to engage with that evidence). Any concern the Tribunal had with the other evidence arose from factors that were independent of the Tribunal’s impression of the sponsor.
There is no error of the kind identified in DAO16. The Tribunal did not use the observation that the sponsor was aggressive and obstructive as the basis to reject all of the other evidence that was before it. Here, the Tribunal did not reject any evidence. To the extent it had concerns with any evidence, the sponsor’s demeanour was in no way referenced as a contributing factor to these concerns.
Overall, the Court is not satisfied that the Tribunal’s impression that the sponsor was “aggressive and deliberately obstructive” “poisoned the well” beyond redemption.
The Court further notes that in light of the various references to the sponsor’s unwillingness to answer (see [5] and [33]) it was entirely open for the Tribunal to form the view it did at [35]-[36]: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]. There was nothing illogical or irrational in this regard. Given that the Tribunal was party to and present at the hearing, the Court should not lightly find that it was unreasonable or illogical for the Tribunal to have formed such view without clear evidence to the contrary.
There was nothing illogical or unreasonable in the Tribunal’s view that the sponsor was “aggressive and deliberately obstructive”.
Conclusion
The Court has significant concerns about the generality of the Tribunal’s reasons as a whole. Overall, the Court is not satisfied that the Tribunal has given the proper consideration to each of the matters in reg.1.09A(3) as required by He and Nguyen.
The application is, accordingly, allowed. The Tribunal’s decision must be quashed and the matter remitted for re-hearing.
I certify that the preceding one hundred and eighteen (118) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Associate:
Date: 12 December 2019
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