Fabian v Minister for Immigration

[2018] FCCA 434

FEDERAL CIRCUIT COURT OF AUSTRALIA

FABIAN v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 434

Catchwords:
MIGRATION – Review of administrative appeals decision – whether decision affected by jurisdictional error – jurisdictional error not established – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.5F

Migration Regulations 1994 (Cth), reg1.15A

Cases cited:

He v Minister for Immigration and Border Protection [2017] FCAFC 206

Applicant: MAREK FABIAN

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG179 of 2017

Judgment of: Judge Vasta

Hearing date: 19 February 2018

Date of Last Submission: 19 February 2018

Delivered at: Brisbane

Delivered on: 2 March 2018

REPRESENTATION

Counsel for the Applicant: Mr Boccabella

Solicitors for the Applicant: NB LAWYERS

Counsel for the Respondents: Ms Hoiberg

Solicitors for the Respondents: CLAYTON UTZ

ORDERS

1. The application filed on 1 March 2017 be dismissed.

2. The Applicant pay the First Respondent’s costs of and incidental to this application fixed in the sum of $7,328.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG179 of 2017

MAREK FABIAN

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT
(As corrected)

Introduction

1. By application dated 1 March 2017, the Applicant, Marek Fabian, has asked this court to review a decision of the Administrative Appeals Tribunal (“the Tribunal”) of 2 February 2017. That decision itself affirmed a decision of the delegate of the Minister not to grant the Applicant a spousal Visa.

2. The Applicant is a 43 year old male from Slovakia. The Applicant played professional soccer in Slovakia until his retirement in 2009. The Applicant arrived in Australia on a student visa on 13 March 2009 and was granted subsequent student visas, which expired on 22 June 2013.

3. The sponsor is a 50 year old female Australian citizen, who has been in two previous spousal relationships and has two children. The sponsor divorced on 15 June 2013.  The Applicant and sponsor met on 1 July 2012 at the Story Bridge Hotel in Brisbane and married on 17 June 2013. The Applicant applied for the partner visa on 21 June 2013.

History of the Relationship

1. The wife of the Applicant was the sponsor. She had withdrawn her sponsorship during the course of the application. That history was set out by the Tribunal.

2. The Applicant and the sponsor were validly married and the Applicant made his spousal Visa application four days after the wedding. On 30 July 2014, the sponsor informed the Department that the marital relationship had broken down and had been for the last 6 months.

3. On 22 August 2014, the sponsor provided to the Department a typewritten unsigned letter providing details of the relationship. In that statement, she did not mention that the relationship had broken down; in fact, she spoke of the household responsibilities and what she and the Applicant did together.

4. On 8 February 2016, the sponsor provided a statutory declaration about the relationship. The sponsor stated that the relationship was genuine and ongoing but that she and the Applicant live separately and apart but that “this happens a lot in this day and age with work and study”. The sponsor said that the Applicant lived at the Gold Coast with friends during the week and would come home to the sponsor one or two nights.

5. The statement of the sponsor further said that she lived in Caboolture because of her daughter. The Applicant paid the bills and that the sponsor could access the joint account if she needed money. The sponsor said that she does not socialise with other people because of her medical problems.

6. As far as commitment was concerned, the sponsor said that she gets her emotional support from her children and that she would always go to her daughter first for support. She said that she “wouldn’t say there was a large amount of commitment on my side”.

7. On 1 March 2016, the Department received a letter from the sponsor dated 22 February 2016. That letter stated that the sponsor was withdrawing her sponsorship for the Applicant. The sponsor stated that their marriage had been up and down for years. She said that that they have been separated on numerous occasions and that she now considered them separated.

8. On 23 March 2016, the Department received a letter of support from the adult daughter of the sponsor. In that letter, the daughter acknowledged that the Applicant and the sponsor were separated but said that the reason for the separation was because of the mother’s illness. The daughter said that the Applicant was living on the Gold Coast and that he visited the sponsor on an occasional basis. The daughter said that she was of the opinion that once the mother’s health had been sorted out, the mother and that the Applicant would resume their marriage.

9. On 20 May 2016, the Department wrote to the Applicant notifying him that he did not meet the criteria for the grant of the partner Visa. It was spelt out that, because he and the sponsor were separated, they were not in a spousal relationship and therefore the criteria were not met.

10. Nine days later, on 29 May 2016, the sponsor submitted a form to the Department stating that “we are no longer separated. I wish to reinstate my sponsorship. (The applicant) and myself resumed our marriage on Sunday, 29 May 2016 after numerous discussions”. Coincidentally, the form was signed on the same day that the sponsor said that she and the Applicant had resumed their marital relationship.

The Findings of the Tribunal

1. The Tribunal went through the four major circumstances that they were required to consider.

2. With respect to the financial aspects of the relationship, the Tribunal said that there was limited documentary evidence of the financial aspects of the relationship.

3. The Applicant provided his bank account statements for 2015 and 2016 which showed his income and included payments for groceries, food and petrol and other transactions. The sponsor did not provide her bank accounts. There was some inconsistency as to whether or not the sponsor and Applicant had a joint account; the Applicant claimed that he and the sponsor had a joint account and each also had their own personal account whereas the sponsor said that they did not have a joint account and that each had their own account to which the sponsor had access. In the end, the Tribunal accepted that there was some evidence of sharing and/or pooling of financial resources but that these aspects were “limited”.

4. With respect to the nature of the household, the Tribunal said that the Applicant had provided a lease agreement for a property at Beenleigh where he and the sponsor were listed as residents. However, that lease ended in March 2015 and there was no evidence as to what the present position was far as any lease was concerned.

5. Again, the Tribunal found significant inconsistencies between the evidence of the Applicant and that of the sponsor. The Applicant said that he and the sponsor had always been together except when he was living at the Gold Coast for work and returning home every weekend. This is quite different from the statements of the sponsor and the daughter who have both confirmed that the sponsor and Applicant were separated. They also confirmed that the Applicant was not coming home every weekend. The Tribunal considered that the Applicant was not telling the truth about his living arrangements with the sponsor.

6. The Tribunal noted that there were no joint bills or tenancy agreements which show that the couple shared a household at the time of the decision. The Tribunal concluded that the Applicant and sponsor have shared a household for short periods from time to time but did not accept that the Applicant and sponsor have shared a household on a permanent or a continuing basis.

7. With respect to the social aspects of the relationship, the Tribunal said there was a paucity of evidence in this regard.

8. Whilst there were letters from three of the friends of the Applicant that talked about the relationship between the Applicant and the sponsor, all but one of those letters was written in 2014 at the beginning of the relationship. The one letter written in January 2017 was not detailed and did not mention that the Applicant and sponsor had been separated and living apart.

9. While the sponsor had stated that she does not like to socialise due to her ill health, the Tribunal noted that the Applicant still socialised with his friends but the sponsor does not socialise with those friends. The Tribunal noted evidence given at the hearing that the Applicant went with the son of the sponsor to a New Year’s Eve party thrown by the daughter. The sponsor did not attend because she was not well but she picked the Applicant up at 1 AM. The Tribunal considered that it was odd that the sponsor and the Applicant would not spend New Year’s Eve together and it was also strange that the sponsor would not be well enough or want to attend the party but she was well enough to pick up the Applicant and her son at 1 AM.

10. There was more inconsistent evidence where the sponsor said that she had spoken to the mother of the Applicant on Skype and was Facebook friends with the sister of the Applicant. The Applicant, in contrast, said that he did not speak with his mother on Skype as she did not have Internet. The Tribunal noted that this indicated that the couple were not telling the truth about these social and commitment aspects of the relationship.

11. The Tribunal concluded that there was limited evidence of social aspects of the relationship

12. With respect to the nature of the commitment by the Applicant and the sponsor to each other, the Tribunal said it was evident that the couple had separated a number of times and the sponsor had withdrawn their sponsorship on two occasions.

13. The Tribunal noted the statement from the sponsor given at a time when she was supporting the Applicant which still stated that the sponsor relied on her daughter first for emotional support.

14. The Tribunal also noted that it was evident that the Applicant knew little about the sponsor’s health problems. The Applicant mentioned that the sponsor had heart failure, a bloated stomach, liver problems and may have cancer. But on the letter that was provided at the hearing as to why the sponsor could not attend in person, it was noted that the sponsor had heart failure, cirrhosis of the liver, Graves’ disease, OCD, clinical depression and suspected lymphoma. It turned out that the Applicant did not know the sponsor had an appointment with the hospital until the morning of the hearing when the sponsor handed a letter to the Applicant.

15. The Applicant admitted that the sponsor went to the doctor often but he did not know what was wrong with her. The Applicant tried to blame this on his imperfect knowledge of English but the Tribunal did not accept this excuse. The Tribunal said that it found it odd that the Applicant did not take more interest in the ailments of the sponsor or ensured that he understood what her health conditions actually were if he were in a truly committed, long-term relationship with the sponsor.

16. The Tribunal found that the fact that the Applicant had limited knowledge, and did not take steps to find out, suggested that he had a lack of interest and commitment. The Tribunal also noted that the Applicant did not attend many of the appointments giving the excuse that he had to work. The Tribunal again considered that there was a lack of commitment and willingness to provide emotional support because he had not even tried to arrange his work around at least some of the appointments.

17. The Tribunal found that the Applicant and sponsor’s relationship lacked mutual commitment and this was inconsistent with a spousal relationship.

18. The Tribunal was also concerned that the Applicant and sponsor did not have much in common and that their common interests and future plans did not align.

19. The Applicant had little knowledge of the sponsor’s previous relationships and why they ended and whilst the Tribunal accepted that this may not be important information if it had been a long past relationship, the sponsor was only divorced two days before the Applicant and sponsor married. The Tribunal said that it considered the fact that the Applicant didn’t know or concern himself with such a recent past relationship indicated a lack of understanding and communication between the couple that was inconsistent with a genuine committed relationship.

20. The Tribunal noted that when asked about the future, the sponsor said that she could not predict what would happen. The Tribunal found that the commitment aspects of the relationship were not consistent with a spousal relationship.

The Conclusions of the Tribunal

1. The Tribunal concluded that they were not satisfied that the parties were in a spousal relationship at the time the Tribunal had to make the decision.

2. The Tribunal found that they did not accept that the relationship was genuine and ongoing. The Tribunal did not accept that the parties had a shared commitment to each other to the exclusion of all others. The Tribunal did not accept that the parties lived together or lived apart but not on a permanent basis.

The Grounds of this Application

1. The Grounds of this Application were as follows:

   “1. The second respondent failed to properly interpret and apply Regulation 1.15A of the Migration Regulations Act 1994 and Part 801 of Schedule 2 of the Migration Regulations 1994.

   2. That the second respondent failed to properly consider all the relevant considerations.

   3. The second respondent’s decision was an improper exercise of power.

   4. The second respondent took irrelevant consideration into account.

   5. The second respondent’s decision was unreasonable.

   6. The second respondent failed to properly conduct a review for the purpose of implementing Part V and/or ss 348 and 249 of the Migration Act 1958.

   7. The second respondent’s decision involved and error of law.

   8. The decision was otherwise unlawful.”

2. The only ground that was really argued was ground six in that it was claimed that the Tribunal had failed to conduct a proper review.

3. The Applicant claims that the Tribunal simply recited the evidence before it and gave “lip service” to what the legislation had mandated. The Applicant claimed that the Tribunal substituted concerns, assertions and considerations for actually finding facts.

4. The argument for the Applicant can be neatly summarised in the submission that the Tribunal “failed to make specific findings on material questions of fact as it was required to do”.

The Legislation

1. The legislation that is set out in the Migration Act 1958 (Cth) at s.5F, is as follows:

   “5F Spouse

   (1) For the purposes of this Act, a person is the spouse of another person (whether of the same sex or a different sex) 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 a married couple 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.”

2. The Migration Regulations 1994 (Cth) at reg.1.15A are as follows:

   “Spouse

   (1) For subsection 5F(3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs5F(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).”

The Claims of the Applicant

1. The Applicant claims that the Tribunal failed to consider “the financial aspects of the relationship”. The Applicant submits that all the Tribunal did was to restate the evidence and assert, at the end of paragraph 24, “however the tribunal considers the financial aspects are limited”. The submission is that the Tribunal did not make findings of fact.

2. The Applicant claims that the Tribunal did not set out any findings of fact in relation to “the nature of the household”. The Applicant submits that the Tribunal came close to making findings by saying that they “preferred the sponsor’s daughter’s statement” but the Tribunal did not refer to the evidence of the “reconciliation” and the oral evidence given at the hearing. The Applicant claims that the Tribunal did not address important matters of fact such as the health problems of the sponsor or the current living arrangements.

3. The Applicant claims that the Tribunal failed to consider “the social aspects of the relationship”. The Applicant submits that there were no proper findings on material questions of fact and no “proper pathway of reasoning” in relation to this consideration.

4. The Applicant claims that the Tribunal failed to consider “the nature of the applicant and sponsor’s commitment to each other”. The Applicant submits that the Tribunal has misstated the evidence in relation to this consideration and has not made proper findings on material questions of fact sufficient to expose a pathway of reasoning. The Applicant submits that there were matters of evidence that were not commented upon by the Tribunal which were significant and should have been addressed.

5. The Applicant submits that because of the above failings, the Tribunal has not conducted a proper review and therefore has committed a jurisdictional error.

6. A corollary to this argument was the original “ground one” in relation to this application. The Applicant claimed that the Tribunal did not conduct a proper evaluation of the circumstances of the marriage through the prism of reg.1.15 A. This ground was really “rolled up” into the argument in relation to ground 6.

1. No other ground was pressed, and given how the other grounds were phrased, this is not in the least surprising.

The Ruling in He v Minister for Immigration and Border Protection [2017] FCAFC 206

1. Counsel for the Applicant relied upon this recent authority as if it were a “game changer”.

2. In this case, the Full Court ruled (at paragraph 76) that the requirement that the Tribunal “consider” the circumstances in reg.1.15A(3) means that the Tribunal is required to make the findings upon each of the prescribed at is numbered with Roman numerals.

3. The Court said that the regulation posed these questions in order to ensure that the Tribunal took into account particular circumstances of the marriage as part of the act of mental process involved in giving proper, genuine and realistic consideration to the prescribed matters.

4. Therefore, in this case, the Tribunal was obliged to make findings on all 15 considerations in reg.1.15A(3) and any other relevant circumstance. What is also made clear by this authority is that such findings may be either expressly made or inferentially made.

5. This authority also reiterated (at paragraph 83) the principle that the Tribunal was not required to refer to, or make findings upon, every piece of evidence.

What the Tribunal did in this Case?

1. The Tribunal made a finding that they were not satisfied that this was a genuine spousal relationship.

2. With respect to the consideration of the financial aspects of the relationship, the Tribunal was obliged to make findings upon each of the matters contained in reg.1.15A(3)(a)(i)-(v).

3. The Tribunal accepted that the Applicant and the sponsor paid rent and had, in 2014, signed a lease to live at a property in Beenleigh for 12 months. The Tribunal accepted that the Applicant and the sponsor had bills which were paid. The Tribunal accepted that the Applicant made payments for groceries, food, petrol and many Internet banking transactions as was illustrated in his bank account statements.

4. The Tribunal accepted that there was some evidence of sharing/pooling financial resources. The Tribunal accepted that the Applicant and sponsor were married and that the Applicant was saving money for a trip overseas whilst the sponsor wished to purchase property.

5. From those conclusions and the other matters mentioned in paragraph 24 of the reasons, it can be, at the very least, inferred that the Tribunal has made findings on all five matters.

6. The Tribunal must look at whether there is a genuine spousal relationship. The Tribunal must consider the financial aspects of the relationship. It is clear that the Tribunal has found that the evidence of the financial aspects of the relationship was “limited” in its ability to assist in the Tribunal’s assessment of the genuineness of the relationship.

7. The Tribunal accepted that the sponsor had two adult children from two previous relationships. The Tribunal accepted that the Applicant and the sponsor had separated on occasions. The Tribunal noted what the sponsor said about their current living arrangements but also noted a lack of documentary corroboration which would have been expected.

8. From those findings and the other matters mentioned in paragraphs 25 to 32, it can be inferred that the Tribunal has made findings on the matters listed in reg.1.15A(3)(b)(i) to (iii).

9. The Tribunal must consider the nature of the household when looking at the genuineness of the spousal relationship. It is clear that the Tribunal concluded that while it accepted that the couple shared a household for short periods of time, it did not accept that the couple “have shared a household on a permanent or continuing basis”.

10. The Tribunal accepted that there were four people who spoke of their opinion as to the nature of the relationship. The Tribunal (in paragraph 33 of the Reasons) did not give any significant weight to what those persons have said.

11. The Tribunal considered what was said about the social life of the sponsor and the Applicant both in the material and in the oral evidence before the Tribunal. The Tribunal accepted that the sponsor does not like to socialise due to her ill-health but that the couple do socialise with the children of the sponsor. As previously detailed, the Tribunal mentioned the activity of the Applicant and the sponsor at New Year’s Eve.

12. From those findings and from what the Tribunal said in paragraphs 33 to 37, it can be inferred that the Tribunal made findings on the matters listed in reg.1.15A(3)(c)(i)-(iii).

13. The Tribunal must consider the social aspects of the relationship when looking at the genuineness of the spousal relationship. It is clear that the Tribunal concluded that there was limited evidence of this kind that would assist the Tribunal in concluding that the relationship was genuine.

14. The Tribunal accepted that these sponsor and Applicant met in 2012 and were married days after the sponsor was divorced for the second time. The Tribunal spoke a number of times out the living arrangements and separations of the Applicant and the sponsor. The Tribunal also spoke about the differing goals of the Applicant and the sponsor.

15. From those findings, it can be inferred that the Tribunal made findings on the matters listed in reg.1.15 A(3)(d)(i),(ii) and (iv).

16. The Tribunal made a clear and unequivocal finding that the degree of companionship and emotional support that the sponsor draws from the Applicant was inconsistent with a spousal relationship. The Tribunal found that the daughter of the sponsor was the main emotional support of the sponsor.

17. The Tribunal must consider the nature of the commitment of the sponsor and the applicant to each other. It is clear that the Tribunal concluded that the relationship between the sponsor and the Applicant lacked the mutual commitment that one would expect in a spousal relationship.

Conclusion

1. In conducting the review, the Tribunal was obliged to consider whether the applicant met the definition of spouse contained in s.5F of the migration act. That meant that, according to the authority of He (supra), findings had to be made about every matter contained in reg.1.15 A (3) and any other relevant circumstances.

2. The Tribunal did what they were obliged to do. They did “properly conduct a review”. Whilst there may be criticism that they did not mention every fact that the Applicant has submitted was significant, there was no such obligation on the Tribunal to do so. Those “facts” referred to by the Applicant are just facts.  They do not amount to “circumstances” as that term is understood in Reg. 1.15A(2).

3. Therefore, there is no jurisdictional error. This application must be dismissed with costs fixed in the sum of $7,328.00.

I certify that the preceding seventy-three (73) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date: 2 March 2018

CORRECTIONS:

1. Representation: Page 2, Counsel for the Respondents delete “Ms Hoiborg” and insert “Ms Hoiberg”