Fang v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2020] FCCA 2455
•3 September 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FANG & ANOR v MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS & ANOR | [2020] FCCA 2455 |
| Catchwords: MIGRATION – Review of decision by Administrative Appeals Tribunal – whether Administrative Appeals Tribunal’s decision affected by jurisdictional error – whether the Administrative Appeals Tribunal failed to give meaningful consideration to evidence and submissions made by the first named applicant in relation to her relationship with the sponsor – whether the Administrative Appeals Tribunal failed to give meaningful consideration to the financial aspects of the relationship between the first named applicant and the sponsor – whether the Administrative Appeals Tribunal failed to give meaningful considerations to the social aspects of the relationship between the first named applicant and the sponsor – whether the Administrative Appeals Tribunal failed to give meaningful consideration to the nature of the household – whether the Administrative Appeals Tribunal failed to give meaningful consideration to the mutual commitment of the parties – whether the Administrative Appeals Tribunal failed to comply with s.359AA(1)(a) of the Migration Act – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5CB, 5F, 348, 359AA, 376, 474, 476 Migration Regulations 1994 (Cth), reg.1.15A, Schedule 2, Part 820 |
| Cases cited: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 Tickner v Chapman (1995) 57 FCR 451 Abebe v Commonwealth of Australia (1999) 197 CLR 510 |
| [First] Applicant: | TAO FANG |
| [Second] Applicant: | XIANG FANG |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1624 of 2018 |
| Judgment of: | Judge Emmett |
| Hearing date: | 19 August 2020 |
| Date of Last Submission: | 19 August 2020 |
| Delivered at: | Sydney |
| Delivered on: | 3 September 2020 |
REPRESENTATION
| Counsel for the Applicant: | Nicholas Poynder |
| Solicitors for the Applicant: | WB Legal |
| Counsel for the Respondents: | Jonathan Kay Hoyle |
| Solicitors for the Respondents: | Sparke Helmore |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1624 of 2018
| TAO FANG |
First Applicant
| XIANG FANG |
Second Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application pursuant to s.476 the Migration Act 1958 (Cth) (‘the Act’) for judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 21 May 2018. The Tribunal found that the first named applicant (‘the First Applicant’) did not meet mandatory criteria of the Partner (Temporary) (Class UK) visa applied for, in that, the Tribunal found that the sponsor and the First Applicant did not have a mutual commitment to a shared life as de facto or spousal partners to the exclusion of all others; or that their relationship was genuine and continuing at the time of the visa application and at the time of the Tribunal’s decision.
The First Applicant is the mother of the second applicant and was born in 1967. Both applicants are citizens of the People’s Republic of China. The second applicant’s visa application was dependent on that of the First Applicant.
On 12 April 2015, the First Applicant married Mr Joseph Waks (‘the Sponsor’), whom she had met in March 2014 through an online dating site.
On 12 May 2015, the First Applicant applied for a Partner (Temporary) (Class UK) visa.
On 7 December 2016, a Delegate of the first respondent refused the First Applicant’s application for the visas.
On 19 December 2016, the applicants lodged an application for review of the Delegate’s decision.
On 23 December 2016, the Tribunal received a Certificate and notification of certain information under s.376 of the Act. Disclosure of that material was said to be contrary to the public interest. The material related to police records provided to the first respondent in confidence.
On 14 May 2018, the applicants appeared before the Tribunal to give evidence and present arguments. In particular, the First Applicant relied on a family violence claim dated 11 July 2016 made by her, as well as various other material.
As stated above, on 21 May 2018, the Tribunal determined that the First Applicant did not meet relevant criteria at the time of the visa application and at the time of the Tribunal’s decision, in that, the applicant and the Sponsor did not have a mutual commitment to a shared life as de facto or spousal partners to the exclusion of all others or that their relationship was genuine and continuing.
On 8 June 2018, the applicants filed an application in this Court seeking judicial review of the Tribunal’s decision.
Relevant Legislation
The legislative scheme is accurately set out in the written submissions of counsel for the applicant, Mr Poynder, as follows:
“36. Non-citizens who wish to apply for a spouse visa within Australia must apply for a subclass 820 Spouse (Provisional) visa. This is also an application for a subclass 801 Spouse (Permanent) visa, which can be granted two years after applying for the subclass 820 visa.
37. The criteria for a subclass 820 visa are set out in Schedule 2, Part 820 of the regulations.
38. Clause 820.211(2)(a)(i) relevantly provides that, as at the date of application, the applicant must be the spouse of an Australian citizen.
39. “Spouse” is relevantly defined in s 5F of the Act 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.
40. Section 5F(3) provides that the regulations may make provision in relation to the determination of whether one or more of the conditions in s 5F(2)(a), (b), (c) and (d) exist. Regulation 1.15A relevantly states:
(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.
….
41. Regulation 1.15A(2) relevantly states that in determining an application for a Partner visa, “the Minister must consider all of the circumstances of the relationship”, including the matters set out in reg 1.15A(3).
42. Regulation 1.15A(3) then sets out the following matters (emphasis added):
(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 care and support of children; and
(ii) the living arrangements of the persons; and
(iii) any sharing of 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.
43. Section 359AA(1) of the Act, which is an alternative to s 359A, provides as follows:
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.”
Relevant Facts
Counsel for the first respondent, Mr Kay Hoyle, agrees that the relevant facts and a summary of the Tribunal’s decision are accurately set out in the written submissions of counsel for the applicants, as follows:
“2. The applicant is a national of China who was born in 1967 (CB 1). She was previously married twice in China (CB 24-25) and there is one child of the second relationship, a son, Xiang Fang, who was born in 1993 (CB 6). Joseph Waks is an Australian citizen who was born in 1945 (CB 11-12). He was previously married (CB 25) and has two adult sons from that relationship (CB 17).
3. The applicant met Mr Waks in March 2014 through an online dating site (CB 228).1 Between April and May 2014 they exchanged numerous emails (CB 228-293). On 12 September 2014 the applicant visited Mr Waks in Australia. She was collected by Mr Waks at the airport and stayed with him, and the relationship developed over the course of her eight day stay. The applicant flew back to Shanghai “for my father” (CB 21), who was ill, but returned to Australia on a Visitor visa on 7 December 2014 and remained until 16 February 20152, when she returned to China with Mr Waks and they visited Shanghai for Chinese New Year. While in Shanghai they took wedding photos (CB 302).
4. On 7 March 2015 the applicant and Mr Waks returned to Australia and, on 12 April 2015 they were married in Sydney (CB 75).
5. On 12 May 2015 a migration agent (CB 5) lodged an online application on behalf of the applicant for a subclass 820/801 Partner visa.
6. The applicant subsequently provided the following further evidence of her relationship with Mr Waks:
(a) Her own statutory declaration made on 12 May 2015 (CB 55-60) which annexed a statement addressing the matters required to be taken into account under reg 1.15A(3) of the Migration Regulations 1994 (the regulations); namely, the financial aspects of the relationship, the nature of the household, the social aspects of the relationship, and the nature of the persons' commitment to each other. The applicant relevantly said:
(i) With regard to the financial aspects of the relationship, she and Mr Waks had a joint account with the ANZ Bank into which they deposited cash and used it mainly for grocery shopping. She said that since she was unable to work on her Visitor visa, Mr Waks paid for household expenses and utility bills, and when they dined out. The applicant provided copies of utility bills addressed to Mr Waks (CB 98-99). The applicant also provided statements for two ANZ personal accounts in her name (CB 100; CB 106-113).
(ii) With regard to the nature of the household, the applicant said that she and Mr Waks were living in a one bedroom unit at 108/791-801 Anzac Parade Maroubra, and her son was living nearby as there was no space for him in their unit. She said that she did all the household duties such as cleaning, washing and cooking, including for her son who visits for meals.
(iii) With regard to the social aspects of the relationship, the applicant said that she and Mr Waks toured around on his days off from his part-time job, and she had a memorable evening when they saw the New Year’s Eve fireworks. She also related their trip to Shanghai in February 2015, when they stayed at the Hilton Hotel and she showed Mr Waks around and introduced him to her friends.
(iv) With regard to the nature of the persons' commitment to each other, the applicant said that Mr Waks was a good husband and always tried to cheer her up. She said that her son got on well with Mr Waks She also related the following two instances of mutual support (CB 60):
Joseph is my sole moral support during the time my father being in a coma in hospital. I cannot imagine my life without him. On 14th April this year when Joseph was admitted to hospital for a small surgery to remove stones in his kidney. I waited in the hospital then picked Joseph up when he woke up and I looked after him carefully until he got full recovery.
(b) A statutory declaration made by Mr Waks on 12 May 2015 (CB 59-66) which corroborated the applicant’s account, including the mutual support provided to each other at the time of her father’s illness and Mr Waks’ surgery (CB 64).
(c) A Form 888 statutory declaration made on 5 May 2015 by a cousin of Mr Waks, Dr Celina Rappaport (CB 53-54) Dr Rappaport said that she had been introduced to the applicant in September 2014 and had met her and Mr Waks 3-4 times since, during medical consultations, and had spoked to them on the telephone on a number of occasions. Dr Rappaport said:
I believe that this relationship is genuine and continuing. On the occasions I have been with them, their affection and care to each other has been loving and respectful.
(d) A Form 888 statutory declaration made on 6 May 2015 by a retired occupational therapist, George John Shirvington (CB 78-79). Mr Shirvington said that he had known Mr Waks for ten years and had met the applicant (“Rosie”) a year ago, when Mr Waks introduced her at “a special gathering of friends”. He said that he had met them together again several times, both before the applicant had returned to China and when she came back to Australia. He said:
I believe that the relationship between Rosie and Joey is genuine and continuing. I have witnessed the signs of fond regard for each other whether in each other’s company or not. Their communication with each other seems to be honest, open and direct. Now they have made a formal commitment to each other, they seem to want to get on with normal married and working life in Australia.
(e) A Form 888 statutory declaration made by Mr Waks’ son, Jacob Mordecai Waks, on 6 May 2015 (CB 80-81). Mr Waks said that he is a director/financial adviser who had spoken to or seen the applicant on a weekly basis since first meeting her in September 2014. He said:
I have seen the nature of the relationship is based on mutual respect and most importantly love. Both Joseph and Tao have a bond which allows them to enjoy life together. In all circumstance that I have seen them I haven’t witnessed anything to raise my doubts.
(f) A non-binding nomination of beneficiary made by Mr Waks on 3 May 2015 (CB 86-87) naming the beneficiaries of his superannuation as Jacob Waks (35%), Ariel Waks (35%), and the applicant (30%).
7. In a detailed statement attached to a statutory declaration made on 11 July 2016 for her family violence claim (CB 191-201) the applicant set out the history of their relationship, which in April-May 2015 was characterised by bullying and controlling behaviour from Mr Waks, then escalated in early November 2015 with a series of incidents that caused the end of the relationship.
8. On 1 November 2015, a Sunday morning, Mr Waks attempted to stop the applicant from attending a church meeting but she insisted on going (CB 194). He told her to take her belongings and leave, and never to come back to the home again. She asked if she could go to the meeting first and come back for her belongings but he screamed "Take your things with you now or I’ll throw them in the bin!" He then tried to snatch her mobile phone which had all her friends’ contacts and she cried out "Don't touch me or I'll call the police". Mr Waks then said he will call the police to kick her out, which he did; however when the police arrived they said that she had the right to live there.
9. The applicant was very upset, and the next morning, 2 November 2016, a sister from the church telephoned to see why she had missed the meeting and the applicant burst into tears and started to cry inconsolably (CB 194-195). The sister was very concerned and took her to see a GP, who referred her to a clinical psychologist. The applicant provided a letter dated 11 July 2016 from the applicant’s GP, Dr Marina Kang (CB 202) which corroborated this account and referred to the applicant’s fears of violence from her husband. Dr Kang also said that she telephoned Mr Waks that day, stating “he was rather unhelpful, fixed in his opinion and not willing to try to understand his wife's thoughts and feelings”. The applicant said that she was in the clinic when Dr King telephoned Mr Waks (CB 195).
10. The applicant also provided a report by the Principal Clinical Psychologist of the Mind Harmony Psychology Clinic, Jing Wang (CB 165-182), who said that the applicant had been referred by Dr King had and made her initial appointment on 4 November 2015 (CB 168).
18. Later on 2 November 2015 the applicant returned home and asked Mr Waks why she was being told to leave (CB 195). He said nothing, then pushed her, and she dialled “000” on her phone. Mr Waks then pushed her to the floor and left the apartment. About 40 minutes later two police officers arrived and “they were impolite”, interrupting the applicant several times and appearing not to be interested in her explanation, as if they already knew everything. Later that night the applicant went to the police station to complain and discovered that when Mr Waks had left the apartment earlier he had gone straight to the police station and given them his account first.
11. A police report (the Police Report) was prepared in relation to the events of 2 November 2015; however this was never seen by the applicant as it was referred to in a certificate under certificate under s 376 of the Act (CB 433). The Police Report has been produced by the respondent in this application.
12. The Police Report was written from the perspective of Mr Waks, describing him as the victim and the applicant as the person of interest. It recorded that the applicant had assaulted Mr Waks, and that when they arrived at the house at about 12:10am on 3 November 2015 and spoke with the applicant, she:
…continued to provide conflicting versions of events and changed her story multiple times. During her initial version, the PN said that she stood over the VIC for an hour as he was sitting on the lounge. The Pn stated that the VIC has stood up and 'touched or pushed me". When the PN was questioned further about this, the PN would say only that "he touched me" and refer to the middle of her chest.
When police attempted to gain further details from the PN (the First Applicant), the PN then told police that the VIC (the Sponsor) had punched her in the chest as the VIC was sitting down still. The PN would avoid answering direct questions about the punch, only stating "he punched me."
The PN continued to change her version of events, stating that the VIC had actually stood up and punched her in the chest. Police continued to ask further questions about this however the PN said that she was facing away at the time in the opposite direction and did not actually see the punch, only that she felt something on her chest. The PN was not able to elaborate on this or explain how the VIC could have punched her if the PN was facing the opposite direction with her whole body.
The PN was offered another opportunity to explain the version of events. The PN changed her version once more, saying that she had been pushed by the VIC and fallen over as a result. The PN stated that she did not want an ambulance and police could sight no visible injuries.
13. The police eventually decided to not take a report from the applicant because she:
…continued to change her version of events multiple times and when questioned, continued to escalate the alleged assault from a touch, to a punch to a complete push where the PN claimed she fell over. In addition to this, the PN claimed that initially the VIC was sitting when he assaulted the PN, however this changed to the VIC standing
14. The police took the view that the applicant was making false allegations of domestic violence to gain money from Mr Waks during a divorce settlement. It regarded “the continuing changing events provided from the [applicant] and the lack of evidence available” did not justify further action.
15. On 3 November 2015 the applicant returned home to find that Mr Waks had changed the lock on the apartment. She was unable to get her belongings and had no choice but to leave (CB 196).
16. Towards the end of her statement, the applicant referred to her strong Christian belief (CB 201):
I am a devout Christian. My religion states that 1 Corinthians 7:10 To the married people I give instructions, not I but the lord, that a wife should not separate from her husband.
Matthew 19:9 I say to you that whoever divorces his wife, except on the grounds of sexual immorality, and marries another commits adultery.
My religious belief has taught me that I must forgive Joseph Waks.. I pray to God everyday for guidance and strength to tolerate him and forgive him. it's not too bad during the day, I kept myself busy and distracted by committing myself to God's work. But at night it was so difficult that I could not stop crying, and could not sleep. I prayed to God in tears for guidance, strength and help.
I have been worrying about being punished by God. My marriage broke down, I felt very ashamed. I also worry a lot how Jehovah witnesses, my brothers and sisters from Jehovah witnesses will see me, blame me for my marriage breakdown. I fear that I will be rejected by my religion and lose my spiritual pillar. My religion Is so important to me and I don't know how I go on with my life without my religion.
17. On 17 May 2016 the applicant filed a Change in Circumstances Details stating that she had changed residential address to Pitt Town (CB 151).
18. On 14 June 2016 the respondent sent an invitation to the applicant to comment on “information provided to the Department [which] indicates that the spousal…relationship upon which your application was based has ceased” (CB 153-155).
19. On 11 July 2016 the applicant’s migration agent sent an email to the respondent (CB 156) attaching a statutory declaration and report of a social worker, Penne Mattes (CB 159-163), a statutory declaration and report of the psychologist, Jing Wang, the applicant’s own statutory declaration of 11 July 2016 referred to above, and Dr Kwang’s letter also referred to above.
20. On 19 August 2016 the respondent sent another letter to the applicant, this time inviting her to comment on whether her relationship with Mr Waks had been genuine and continuing at the time of her claim of family violence (CB 204-207).
21. A large number of documents were subsequently provided in support of the claim that the applicant had been in a genuine and continuing relationship as at the time of her visa application on 12 May 2015 (CB 225-384).8 Relevantly, these documents included the following:
(a) A “character reference” dated 15 August 2016 from C. Meng P’ing, a Minister of the Jehovah’s Witnesses (CB 225).
(b) A two-page letter dated 1 August 2016 from a fellow Jehovah’s Witness and good friend, Ye Zhou (“Juliette”) (CB 226-227), in which she corroborated the applicant’s account of the visit to Dr King on 2 November 2019.
(c) Emails exchanged between Mr Waks and the applicant in April and May 2014 (CB 228-293).
(d) Photos of the applicant with Mr Waks in various places, including during their trip to China in February 2015 (CB 294-302). In many of the photos they were arm-in-arm and obviously close; they were also shown with other people who obviously knew them. In some photos they were shown in formal wedding dress.
(e) A handwritten letter signed by Mr Waks on 16 March 2015 (with a love heart) stating “I promise from now on to Rosie that I will always have breakfast, lunch and dinner as it is beneficial to my well being” (CB 306).
(f) A handwritten letter dated 13 September 2016 from Xue Bai (Sophie), confirming that she had known the applicant through the Jehovah’s Witnesses and that she had visited her and Mr Waks at their Maroubra apartment in July 2015 (CB 307).
(g) A statutory declaration made by the applicant on 13 September 2016 (CB 308) annexing a statement (CB 309-310). The statement repeated much of what had been said earlier about the beginning of the relationship, relevantly including the following additional details:
(i) During her stay in Sydney from late 2014, Mr Waks had bought the applicant many presents, including a pair of earrings from Tiffany that were worth $700. The applicant said (CB 309):
I was very touched and surprised by that because he only works part time and is not rich. I have never received such expensive present from anyone in my life, I was really touched and speechless. It was plain clear to me that he was deeply in love with me and I was convinced that he would take good care of me.
(ii) On 8 December 2014, the day after her arrival in Sydney, Mr Waks signed a two -year mobile phone contract for her under his name (CB 309).
(iii) They opened a joint ANZ account on 8 December 2014, into which they deposited cash and used the account for grocery shopping (CB 309). The applicant provided statements from their joint ANZ account no 2168-47251 for the period 8 December 2014 to 16 November 2015 (CB 324-344) which showed small deposits and small purchases from grocery outlets.
(iv) After their marriage they had notified Centrelink and Mr Waks had his rent assistance and pension reduced (CB 309).
(v) The applicant often accompanied Mr Waks when he went to his GP, who was his cousin, and when they went to the clinic “we always had a good chat” (CB 309).
(vi) Their marriage was good at the beginning and “We were in love and enjoyed each other’s company” (CB 310). The applicant again provided evidence of her being added as a beneficiary to Mr Waks’ superannuation fund (CB 311) noting (CB 310):
This again deeply touched me. I felt that he saw me as a family and as important as his two sons in his life.
(vii) The applicant again emphasised the household duties and cooking that she did for Mr Waks, including her efforts to encourage him to eat better, referring to one day in March 2015 when she found out that he had skipped his breakfast and lunch, and she made him sign the written promise at CB 306. She said: “His health condition has been greatly improved and this makes me very happy” (CB 310).
(viii) The applicant also referred to a trip she and Mr Waks made to Melbourne in June 2015 (with travel documents included at CB 314-316), to the many times they had meals with Mr Waks’ sons, and how they shopped together (CB 310).
(h) Another letter dated 12 September 2016 from Juliette Zhou (CB 319) confirming that she had visited the applicant and Mr Waks many times from December 2014 to November 2015 at their Maroubra apartment and the times that she and her husband would meet them in Maroubra. Ms Zhou enclosed photos that they had sent from their travels in China (CB 320-322). Ms Zhou also referred to the applicant’s concern about Mr Waks during the Lindt Café siege in December 2014 (as he worked nearby), and the assistance that the applicant gave to Mr Waks when he was diagnosed with cholecystitis in March 2015 until his surgery in mid-April 2015. Ms Zhou also referred to the Melbourne trip in June 2015 when the applicant and Mr Waks had attended a wedding with many other Jehovah’s Witnesses.
(i) A letter dated 10 September 2016 (CB 347) jointly signed by a Spanish couple who had attended the apartment on the evening of 2 November 2015, Francisco Javier Casado and Dolores Ballesteros Borrego. They said that they had come to know “Rosie” very well from March 2015, through the Church. They also gave an account of the night of 2 November 2015 which was consistent with Ms Zhou’s account.
(j) A further statement of the applicant dated 16 September 2016 (CB 348), in which she explained the joint account as follows:
When we open the joint account Joseph Waks deposited $500. Three days later I deposited $100. Joseph Waks occasionally deposited $50, $60, $100 or $300 into the joint account. Sometimes I deposited a small amount of money into it. Also, I transferred money into the joint account from my own saver account. Because Joseph Waks did not have internet banking. Therefore, sometimes he gave me cash, I deposited money into our joint account via my internet banking app. We usually used our joint account to purchase groceries and daily goods.
(k) A Questionnaire for Dependants over 18 years of age completed in handwriting by the applicant’s son (CB 382-385).
22. On 7 December 2016 the delegate refused the applicant’s application (CB 391-396), finding that the parties had never been in a genuine relationship.
23. On 7 May 2018 the solicitor provided the Tribunal with a statutory declaration made by the applicant on 4 May 2018 (CB 442-451), together with legal submissions (CB 454-460).
24. On 14 May 2019 the Tribunal convened a hearing of the application. The hearing took place over two and a half hours (CB 461-463) and, according to the transcript9, the following relevantly took place:
(a) The Tribunal said that first of all it would be considering whether the applicant was in a genuine and continuing spousal relationship with Mr Waks (3:1-2).
(b) The Tribunal referred to folios 1-20 identified in the s 376 certificate (4:1-2). It said that it considered the certificate to be valid (4:8) and that it was relevant “because it indicates to the tribunal that you and your sponsor were not in a genuine spousal relationship, and it also challenges your claims of being a victim of family violence perpetrated by the sponsor” (4:11-14).
(c) The Tribunal identified five items of information in the s 376 documents which it considered to be relevant (4:26-46):
(i) “That you entered into the marriage relationship with your sponsor in order to obtain a visa to remain in Australia”.
(ii) “That the sponsor borrowed $20,000 to provide to you for the cost of the visa application. After obtaining this money, you taunted the sponsor, telling him he was not good enough for you, and that he was poor, and that you didn’t want involvement with the sponsor”.
(iii) “On 2 November 2015 you demanded money from the sponsor”.
(iv) “On 3 November 2015, police attended the residence where you and the sponsor resided. As reported in the police report, you provided the police with inconsistent information and changed your story multiple times about the claimed assault on you by your sponsor. In that report it is stated that it is the opinion of the attending police that you made false allegations of family violence, to gain money from the sponsor”.
(v) “Also reported in that report is that police feared that you would continue to report false allegations about family violence perpetrated by the sponsor, and this also leads to a comment that your claims of family violence are fictitious”.
(d) The applicant was invited by the Tribunal to comment on or respond to the information and, after some discussion, she decided to respond immediately (8:4).
(e) The applicant’s response was as follows:
(i) She denied that Mr Waks had given her $20,000 for a visa. She said that he transferred $14,000 to her “because at the time I didn’t have a job” (8:9-13).
(f) The applicant then repeated the events that had occurred on 1-3 November 2019. The evidence here was essentially the same as that given by the applicant in her statements, although some additional details were also given. Relevantly to the present case:
(i) With regard to the police allegation that the applicant gave inconsistent information, the Tribunal put the following question to the applicant, which was basically unanswered (10:12-19):
Well, as I put to you, in the police report, the police state that you provided inconsistent information to them and you changed your story multiple times…This is on the 3rd of November, you changed your story multiple times about the sponsor assaulting you. What do you want to say about that?
(ii) The applicant said that on 2 November 2015 when Mr Waks had pushed her, she fell against a side table and hurt her lower back. She said that her son had taken her to the hospital to be checked and there was blood in her urine and she was given a painkilling tablet. She said that the next day they returned to the hospital and the doctor asked her to remain to be observed. She said that she remained in the hospital from about noon until 6.00pm on 3 November 2015 and when they returned to the apartment she found that the lock had been changed, so she had to return to the police station to get help opening the apartment so she could “grab a few things”.(12:20-13:36).
(iii) The applicant said that she was “hurt badly” by the police when they came to the apartment on the night of 2 November 2015 and, when challenged on this by the Tribunal, she clarified that it was their attitude and what they said that had hurt her (14:10-15:4).
(g) In relation to other incidents of family violence, the applicant gave a generally consistent account of events previously referred to in her statements.
(h) The Tribunal asked the applicant “Well, why didn’t you leave? Why didn’t you leave and go back home? Leave Australia and return home?”, to which she replied (17:43-18:2):
Because my church is Jehovah Witness and our church rules and also, as it said in the Bible, once we are married, we are not allowed to leave just like that, unless our spouse betrayed us. And a husband is the head, or leader, of the wife and once married, we should not leave the husband just of casually. I have to call tolerant him for 77 times, not just once or twice.
(i) In relation to the financial aspects of the relationship, there was a lengthy and confusing exchange over the spending in the joint bank account, which the Tribunal (18:41-44) suggested “doesn’t tell me very much about how you both shared your finances together. In fact, both you and your sponsor have given evidence that he paid all the household bills and the rent”. The applicant agreed with this, but said that with the joint account (19:1-6):
…he put in $300 every time. And I sometimes put in cash, 50 or $100 as well. And also, around us there was three supermarkets. Every two to three days, I went there to check if there is anything on sale, or if there is any fresh fruit or vegetables, because we are Chinese, we like to buy fruits when they are very fresh. We don’t like to buy them altogether once a week. So, that card for was grocery shopping.
The Tribunal noted that the applicant had said in her statements that Mr Waks paid for all the household expenses and the rent, and accused her of changing her account. The applicant said that she was referring to the rent and electricity bills, “But the grocery was shared by us”. The Tribunal accused her of not having said that previously and asked, “Other than your claim that you shared cost of groceries, did you share anything else financially?”, to which the applicant initially said “I did all the house works, including all the cooking” (19:23-25). The Tribunal said that here it was just referring to their finances, and the applicant said they shared “daily expenses”, which she clarified as “Grocery and things”; meaning other household items they needed to buy from the supermarket (19:29-38).
(j) The Tribunal referred The applicant to p. 85 of one of the joint account statements (the relevant page is at CB 341) and asked her about a “pattern” of deposits and withdrawals of $1,000.00 (19:40-43) and the applicant said that these were her bets on the horse racing (20:32). The Tribunal asked her what Mr Waks thought about this and the applicant said that he had “no problem” (21:1-4).
(k) After briefly discussing the nature of the household (21:6-17) and the social aspects of the relationship (21:44-19), the Tribunal asked the applicant about “your future and your plans and commitments to each other” and the applicant said (22:25-33):
He told me that his parents both lived a very long life. Although he was 70-years-old, there wasn’t - there shouldn’t be any issue for him to live another 20 to 30 years and he wanted to spend that time with me together. We are going to look after together in Sydney. We planning that we going out for holiday once a year and that, for to me, sounded like a very beautiful plan. And also, my son and his son, weren’t married yet. We wanted to see them get married and we wanted to have our grandchildren. We wanted to live together and love together and wanted to live a stable life in Sydney.
(l) When asked if there was anything more that she wanted to say about the relationship, the applicant related her previous accounts about being given the Tiffany earrings, Mr Waks sharing his superannuation, her looking after him by cooking regular and healthy meals and helping him when he went to hospital (24:6-45).
The proceeding before this Court
The applicants were represented before this Court by Mr Nicholas Poynder, of counsel. The first respondent was represented by Mr Jonathan Kay Hoyle, of counsel.
My Poynder confirmed that the applicants relied on the grounds of the Amended Application filed on 11 December 2019. Those grounds are as follows:
“1. The second respondent (the Tribunal) failed to carry out its statutory task of reviewing the primary decision required by s 348 of the Act by failing to give meaningful consideration to evidence and submissions made by the applicant in relation to the circumstances of her relationship with her sponsoring husband, as required by reg 1.15A of the Migration Regulations 1994.
Particulars
(a) In relation to the financial aspects of the relationship, the Tribunal failed to meaningfully consider evidence that the applicant and her husband each made financial contributions to their joint bank account and used this account to pay for the groceries and other household items purchased from the supermarket.
(b) In relation to the social aspects of the relationship, the Tribunal failed to meaningfully consider:
(i) evidence that the applicant and her husband travelled and socialised together in Australia and China, and that they represented themselves to other people as being married to each other;
(ii) evidence in third party statements attesting to the genuineness of the relationship between the applicant and her husband, erroneously describing such statements as giving little insight about their relationship or how they supported each other; and
(iii) evidence in numerous photographs of the applicant and her husband showing them in intimate and close contact.
(c) In relation to the nature of the household, the Tribunal failed to give any active intellectual consideration to evidence that the applicant and her husband had lived together for approximately six months as at the time of the application for the visa, and that the applicant completed the housework and cooking in the household.
(d) In relation to the parties’ commitment to each other, the Tribunal failed to engage with evidence of the parties’ commitment to each other, including evidence that the applicant’s husband had gifted her Tiffany earrings, that the applicant was a Jehovah’s witness and required by her religion to be totally committed to her husband, and that the applicant and her husband each supported the other during times of family illness.
2. The Tribunal failed to comply with the requirement in s 359AA(1)(a) of the Act to orally give to the applicant “clear particulars” of information that the Tribunal considered would be the reason, or a part of the reason, for affirming the decision under review.
Particulars
The Tribunal failed to give the applicant clear particulars of information in a NSW Police report regarding the opinion of the police that the applicant had provided inconsistent information and had changed her story multiple times about events said to have occurred on 2 November 2015. ”
Counsel for the applicants submitted that the applicants rely essentially on two issues:
i)That the Tribunal did not give meaningful consideration to evidence provided by the First Applicant in support of her contention that she was in a married relationship with the Sponsor at the time of application for a partner visa.
ii)Whether the Tribunal complied with s.359AA of the Migration Act 1958 (Cth) in giving information the subject of the s.376 Certificate to the applicant at the hearing for comment.
It is common ground that the parties divorced on 1 March 2017, having separated on 2 November 2015.
Ground One
Under the legislative scheme it was necessary for the First Applicant to satisfy the Tribunal that she was the spouse of the Sponsor as defined in s.5F of the Act, in that, she and the Sponsor were in a married relationship, had a mutual commitment to a shared life as a married couple to the exclusion of all others and that their relationship was genuine and continuing, both at the time of the application for the visa and at the time of the Tribunal’s decision.
The Tribunal accurately identified and summarised the relevant statutory requirements and noted that in forming an opinion about whether the parties were in a spousal relationship, regard must be had to all of the circumstances of the relationship. The Tribunal noted that this included evidence of the (i) financial aspects of the relationship; (ii) the social aspects of the relationship; (iii) the nature of the couple’s household; and (iv) their commitment to each other as set out in r.1.15A(3) of the Migration Regulations 1994 (Cth). The Tribunal stated that it had considered all the evidence before it with respect to each of those aspects.
It should be borne in mind that brevity of itself does not demonstrate jurisdictional error. As Keifel CJ said in Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 at [13]:
“13 The Migration Act requires the Tribunal, in carrying out its functions, to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick. In reviewing a decision the Tribunal is required to act according to substantial justice and the merits of the case…”
(i) Financial aspects of the relationship
Regulation 1.15A(3)(a) requires the Tribunal to consider the financial aspects of the relationship, including any joint ownership of assets, any joint liabilities, the pooling of financial resources, any legal obligation owed by one party to the other, and the basis of the sharing of day to day household expenses.
In considering this aspect, the Tribunal found that based on the evidence before it from both parties, that the parties did not have any joint ownership of assets or joint liabilities and did not have a legal financial obligation owed to each other. The First Applicant conceded that the Sponsor paid for all household expenses and utility bills and also paid when the parties dined out. The Tribunal noted that the First Applicant stated that she had a personal account with savings which was mainly used to support her son.
The Tribunal noted that in May 2015 the First Applicant stated that the parties had a joint bank account into which they sometimes deposited money.
In September 2016, the First Applicant gave evidence that she deposited money into the joint account to complete large money transactions and that when she was finished using the money she transferred the money back to her personal account. The Tribunal noted that the First Applicant provided information that she transferred money into the joint account when funds were low.
In particular, the Tribunal noted that the First Applicant claimed that the joint account was used for groceries, meals, essential household goods and entertainment. The Tribunal noted that the First Applicant told the Tribunal that the parties had shared the purchase of groceries and “things”. The Tribunal put to the First Applicant that this was inconsistent with her previous evidence where she stated that the Sponsor paid for all household expenses. The Tribunal noted that the First Applicant said that the large transactions into the parties’ joint account were to facilitate her betting on horse racing.
The Tribunal also noted the First Applicant’s evidence that the Sponsor had borrowed $20,000 and provided this to the First Applicant to support her visa application. The Tribunal noted that the applicants’ migration agent stated that the amount the Sponsor provided to the applicant was $14,000. A transcript annexed to the affidavit of Oliver Konstantinidis, affirmed 28 November 2019 and read by the applicant, disclosed that the applicant ultimately accepted that it was $14,000 that had been transferred to her from the Sponsor and not $20,000.
The Tribunal did not accept the applicants’ migration agent’s argument that the First Applicant’s housework should be accepted as a financial contribution to the household.
The Tribunal found that the Sponsor supported the parties financially and the First Applicant utilised the joint account for her personal use, including betting on horse racing.
The Tribunal did not accept that the parties shared day to day expenses.
In considering the financial aspects of the relationship, counsel for the applicants conceded that the transcript discloses a “lengthy and confusing exchange over the spending in the joint bank account”. The transcript also discloses that the Tribunal asked the First Applicant whether the parties share anything else financially beyond the cost of groceries. The First Applicant responded that she did all of the housework including the cooking. The First Applicant stated that they shared daily expenses which she clarified to mean “groceries and things”, being other things they needed to buy from the supermarket.
A fair reading of the Tribunal’s consideration of the financial aspects of the relationship makes clear that the Tribunal considered the joint ownership of assets, joint liabilities, the extent of pooling of financial resources and the basis of any sharing of day to day household expenses.
The evidence before the Tribunal made clear that the joint account was not used for household expenses such as utility bills and rent. The Tribunal plainly had regard to the fact that there was a joint account and considered the use to which it was put, namely, for groceries and the First Applicant’s betting activities.
To the extent that the contention in Ground One is that the Tribunal failed to engage with the financial aspects of the relationship, such a contention is not made out. A fair reading of the Tribunal’s reasons makes clear that the Tribunal had regard to what was said in the representations made by both parties, including the facts and arguments upon which each relied. The Tribunal then attributed weight to the evidence before it in relation to the financial aspects of the relationship and having evaluated that evidence, found that there was no joint ownership of assets, no joint liabilities, no pooling of financial resources beyond the joint account and its use in paying for groceries and betting; and that there was no sharing of day to day household expenses.
That finding was open to the Tribunal on the evidence and material before it and for the reasons it gave. That finding was probative of the evidence before the Tribunal and was made following an active intellectual engagement of the evidence before it. The Tribunal engaged in an active intellectual process as explained in the relevant authorities as referred to in the submissions of both counsel and, in particular, Tickner v Chapman (1995) 57 FCR 451 at 476-477 per Burchett J, at 495-496 per Keifel J (as her Honour then was), at 462 per Black CJ.
(ii) The nature of the household
Regulation 1.15A(3)(b) required the Tribunal to consider the nature of the household including any joint responsibility for the care and support of children, the living arrangements of the persons and the sharing of the responsibility of house work.
In considering that aspect, the Tribunal noted that the parties did not have any joint responsibility for the care and support of any children and that the second applicant was supported financially by the First Applicant and lived independently of the parties. The Tribunal accepted that the parties lived together and that on the evidence of the parties, the First Applicant completed the housework and cooking.
Having accepted the evidence of the parties in relation to the nature of the parties’ household, there was little more that the Tribunal could have said. In the circumstances, the Tribunal was not required to elaborate further, having accepted the mutual evidence of the parties before it in relation to the nature of the household.
In the circumstances, there was no error in the manner in which the Tribunal considered the nature of the parties’ household.
(iii) The social aspects of the relationship
Regulation 1.15A(3)(c) requires the Tribunal to consider the social aspects of the relationship, including whether the parties represented themselves to others as being married and the opinion of other persons as to the nature of the relationship as well as any basis upon which the parties planned to undertake social activities.
The Tribunal accepted that the parties travelled and socialised together in Australia and in China and accepted that they represented themselves as being married to each other to other people. The Tribunal also accepted that the parties undertook social activities together and that photographic evidence depicted them together and with others at different locations.
In relation to the photographic evidence, counsel for the applicant submitted that it demonstrated an intimacy that the Tribunal had not found or appreciated. However, the Tribunal’s finding that the photographs depicted the parties together and with others at different locations was a finding clearly open to the Tribunal on the photographic evidence before it. The Tribunal may have commented more comprehensively on the “togetherness” that the photographs depicted, including photos where the parties appeared to have dressed up in wedding costumes. However, the finding of the Tribunal was one clearly open to it and was fairly descriptive of what the photographs depicted.
The Tribunal also found that third party statements provided by the First Applicant in support of their relationship gave little insight about the parties’ relationship and how they supported each other. Counsel for the applicant submitted that the statutory declarations were provided by credible witnesses, including Mr Waks’ cousin and son, that they referred to signs of fond regard for each other, whether in each other’s company or not. The Tribunal noted that Mr Waks’ son described the bond between the parties as one which allowed them to enjoy life together.
The relevant statements were brief and basically asserted the parties’ fondness for each other. None gave particular elaboration or examples of fondness beyond the mere assertions. It was for the Tribunal to consider that evidence, evaluate it and to determine the weight that it would attribute to that evidence in considering the social aspects of the parties’ relationship.
A fair reading of the Tribunal’s decision record makes clear that the Tribunal did consider the third party statements. The Tribunal’s conclusion that the third party statements gave little insight into the parties’ relationship or how they supported each other was a conclusion open to it. It was, however, a conclusion with which the applicants did not agree. Such disagreement seeks merit review, which this court cannot undertake (see see Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [53]-[54] per Gleeson CJ and McHugh J; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ). The following was stated in Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 at [20] per North, Lander and Katzmann JJ:
“It was not for the Federal Magistrate’s Court, nor for this Court, to review the merits of the RRT’s decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611. A wrong finding of fact is not an error of law: Waterford v The Commonwealth (1987) 163 CLR 54 at 77. Unsound reasoning is not an error of law: Reg v The District Court; Ex parte White (1966) 116 CLR 644 at 654; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356.”
As stated above, the Tribunal’s findings in relation to the third party statements were open to the Tribunal on the evidence and material before it and the reasons it gave. It was probative of the relevant issues before the Tribunal and, whilst brief, did demonstrate an active intellectual engagement with the material before it (see ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 at [83] per Griffiths, Perry, Bromwich JJ; Tickner v Chapman (1995) 57 FCR 451 at 476-477 per Burchett J, at 495-496 per Keifel J (as her Honour then was), at 462 per Black CJ).
(iv) The nature of the parties’ commitment to each other
Regulation 1.15A(3)(d) required the Tribunal to consider the nature of the parties commitment to each other, including the duration of the relationship, the length of time the parties lived together, the degree of companionship and emotional support that each drew from the other and whether the parties saw the relationship as a long term one.
The Tribunal noted that on the evidence of the parties, they lived together since December 2014 and married on 12 April 2015. The Tribunal noted that at the time the visa application was lodged on 12 May 2015, the parties had lived together for approximately six-months and been married for one month. The Tribunal noted that the parties’ relationship ended 11 months later and on 1 March 2017, the parties divorced.
The Tribunal found that during the 11 months the parties lived together, there was little evidence about how the parties supported each other. The Tribunal did note the First Applicant’s evidence of being with the Sponsor during the removal of a kidney stone and caring for him during his recovery. The Tribunal also noted that the Sponsor supported the First Applicant when her father was ill. The Tribunal also noted that the Sponsor took out a two year telephone contract for the First Applicant’s benefit and nominated her as a beneficiary of his superannuation fund.
The Tribunal noted the First Applicant’s evidence that the parties expected to grow old together; whereas, the Sponsor’s evidence was that the parties’ relationship deteriorated one week after the marriage and that the Sponsor believed that the First Applicant had married him for the visa.
The Tribunal referred to police records which referred to the Sponsor stating that he had been trying to end the marriage but that the First Applicant had continued to demand money from him. The Tribunal placed “significant weight” on the police information about the First Applicant providing inconsistent information to the police and changing her story multiple times. It also placed weight on police fears that the First Applicant would continue to report false allegations about family violence perpetrated by the Sponsor.
The Tribunal was ultimately not satisfied that the parties had provided each other with companionship and emotional support following its consideration of all the evidence before it.
The argument of counsel for the applicants essentially centred around the weight that the Tribunal gave to the evidence before it of the parties’ commitment to each other. In particular, counsel referred to Tiffany earrings that were bought by the Sponsor for the First Applicant early in their relationship, a note that the First Applicant had the Sponsor sign in relation to eating properly and the First Applicant’s religious commitment to marriage.
Again, the Tribunal referred to the representations of each of the parties in relation to their commitment to each other. It is well established that it is not necessary for the Tribunal to refer to every piece of evidence before it in the course of an active engagement with the evidence before it (see Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at 604 the Full Court of the Federal Court (French, Sackville and Hely JJ).
The thrust of the Tribunal’s findings is that it was not persuaded by the evidence of commitment before it relied on by the applicants and found that there was little evidence of mutual support. Again, that is a matter for the Tribunal for evaluation of the evidence before it. It was open for the Tribunal to find that there was little evidence of mutual support. The Tiffany earrings were bought by the Sponsor very early in the relationship. The First Applicant’s note to the Sponsor about eating properly, is not an unequivocal demonstration of care and support. Religious commitment to marriage by one party is not the same as mutual ongoing commitment to each other.
In considering the parties’ commitment to each other, it was open to the Tribunal to have regard to the police records, the subject of the s.376 Certificate, and the evaluation by the police of the information given to the police by each of the parties.
Again, the applicants’ complaints about the manner in which the Tribunal dealt with the evidence of commitment appear more to be a disagreement of the findings and decision of the Tribunal which were open to it on the material before it and for the reasons it gave. The Tribunal’s findings were relevant of the probative issues before it and, whilst brief, were sufficient to satisfy the requirement of active intellectual engagement with the evidence before it.
As stated by the first respondent in submissions, the “beneficial matters before (the Tribunal) were outweighed by the serious problems with the first applicant’s credibility in light of the Sponsor’s evidence and the material in the police report”.
Based on its consideration of all the evidence, the Tribunal was not satisfied that the parties had a mutual commitment to a shared life to the exclusion of all others or that they viewed their relationship as genuine and continuing. Accordingly, the Tribunal found that the First Applicant did not meet the requirements of s.5CB or s.5F of the Act, and therefore the applicants did not meet the requirements for the grant of the visas.
There was no error in the manner in which the Tribunal considered the evidence and material before it, the manner in which it evaluated the material before it and the conclusions it made in relation to the material and evidence before it.
Having found that the parties were not in a genuine spousal relationship, it was not necessary for the Tribunal to go on to make findings in relation to the First Applicant’s allegations of family domestic violence.
Accordingly, Ground One is not made out.
Ground Two
Ground Two asserts that the Tribunal failed to comply with the requirements of s.359AA of the Act, in that, it failed to give the First Applicant clear particulars of information contained in the police report the subject of the s.376 Certificate.
The Tribunal found the s.376 Certificate to be valid and that the police records, the subject of the Certificate were relevant to the review because they indicated to the Tribunal that the parties were not in a genuine spousal relationship; and also challenged the First Applicant’s claims of being a victim of family violence perpetrated by the Sponsor.
At the commencement of the hearing before the Tribunal, the Tribunal raised the issue of non-disclosure of the s.376 Certificate. The Tribunal stated that it was satisfied that the information was relevant to its review because it indicated to the Tribunal that the First Applicant and the Sponsor were not in a genuine spousal relationship and also challenged the First Applicant’s claim of being the victim of family domestic violence perpetrated by the Sponsor. The Tribunal then said it was going to put to the First Applicant the core of the information and that such information would be the reason, or part of the reason for affirming the decision. The Tribunal informed the First Applicant that it went to her credibility and that a consequence of the information would be that the Tribunal would affirm the decision.
The transcript discloses that the Tribunal then put to the First Applicant the relevant information as follows:
“That you entered into the marriage relationship with you sponsor in order to obtain a visa to remain in Australia. That the sponsor borrowed $20,000 to provide to you for the cost of the visa application. After obtaining this money, you taunted the sponsor, telling him he was not good enough for you, and that he was poor, and that you didn’t want involvement with the sponsor. You also told the sponsor that your savings or earning were to be paid (indistinct).
On 2 November 2015 you demanded money from the sponsor. On 3 November 2015, police attended the residence where you and the sponsor resided. As reported in the police report, you provided the police with inconsistent information and changed your story multiple times about the claimed assault on you by your sponsor. In that report it is stated that it is the opinion of the attending police that you made false allegations of family violence, to gain money from the sponsor.
Also reported in that report is that police feared that you would continue to report false allegations about family violence perpetrated by the sponsor, and this also leads to a comment that your claims of family violence are fictitious. I invite you to comment on or respond to this information. You may comment on or respond to the information orally or in writing. You may also seek additional time to comment on or respond to the information. How would you like to continue? You might like to speak to your representative before you respond. Okay. Have we got a decision?
The applicants contend that the particulars given to the First Applicant were not in accordance with s.359AA in that the applicants were not given “clear particulars” of the information.
Counsel for the applicants put the submissions as follows:
62. Here the Tribunal failed to comply with s 359AA of the Act when it failed to give the applicant “clear particulars” of how she was alleged by the police to have provided “inconsistent information” and “changed your story multiple times” when asked about what had happened that night. The Tribunal did not explain to the applicant how, and in what way, her account to the police was regarded to have been inconsistent and changed multiple times. This was clearly set out in the Police Report, which stated:
· during her initial version, the applicant said that she stood over Mr Waks for an hour as he was sitting on the lounge, then she said that Mr Waks stood up and “touched or pushed me", then when further questioned she would say only that "he touched me" referring to the middle of her chest;
· when police attempted to gain further details, the applicant said that Mr Waks had punched her in the chest as he was sitting down still, but she avoided answering direct questions about the punch, only stating "he punched me";
· the applicant then said that Mr Waks had actually stood up and punched her in the chest, then said that she was facing away at the time in the opposite direction and did not actually see the punch, only that she felt something on her chest, and she would not elaborate on this or explain how Mr Waks could have punched her if she was facing the opposite direction with her whole body; and
· when offered another opportunity to explain her version of events, the applicant changed her version once more, saying that she had been pushed by Mr Waks and fallen over as a result.
63. The Police Report summarised these inconsistencies and changes of story as follows:
·The PN continued to change her version of events multiple times and when questioned, continued to escalate the alleged assault from a touch, to a punch to a complete push where the PN claimed she fell over.
·In addition to this, the PN claimed that initially the VIC was sitting when he assaulted the PN, however this changed to the VIC standing.
64. The Tribunal at [29] “placed significant weight on the police information about the applicant providing inconsistent information and changing her story multiple times”. Yet the Tribunal did not provide the applicant with any practical or meaningful opportunity to respond to this information. All the applicant had was the bare allegation that she had provided “inconsistent information” and “changed your story multiple times”.
65. The requirement to comply with ss 359AA is mandatory, so that a failure to comply will, of itself, amount to jurisdictional error: SAAP v Minister for Immigration (2005) 228 CLR 294 at 320-322 (McHugh J), 345-346 (Kirby J), and 354-355 (Hayne J).
66. The Tribunal’s conduct in this respect amounted to a failure to comply with the requirement in s 359AA to provide “clear particulars” of the relevant information.
In its decision record, the Tribunal identified the core of the information as follows:
·“The applicant entered into the marriage relationship with the sponsor in order to obtain a visa to remain in Australia.
·The sponsor borrowed $20,000 and provided it to the applicant to cover the cost of the visa application. After this the applicant taunted the sponsor telling him he was not good enough for her and that he was poor and she didn’t want involvement with the sponsor. The applicant told the sponsor that her earnings are for her son.
·On 2 November 2015, the applicant demanded money from the sponsor.
·On 3 November 2015 (as per the police record), police attended the residence where the applicant and sponsor resided. The applicant provided the police with inconsistent information and changed her story multiple times about the claimed assault on her by the sponsor.
·It is the opinion of the attending police that the applicant made a false allegation of family violence to gain money from the sponsor. The police feared that the applicant would continue to report false allegations about family violence perpetrated by the sponsor.
·The applicant’s claims of family violence are fictitious.
The transcript makes clear that the First Applicant was invited to comment or respond to the information orally or in writing and may seek additional time to comment on or respond to the information. The applicants’ migration representative made clear that the First Applicant said that she had addressed the information in her Statutory Declaration and that what happened in November was addressed in previous documents. Essentially, the First Applicant then proceeded to respond by giving orally her version of the events of 1, 2 and 3 November.
There was nothing in the responses by the applicants’ migration agent or the First Applicant herself to suggest that the First Applicant did not understand the information being given to her for comment or that she required any further clarification. The First Applicant was obviously aware of the circumstances referred to in the police report and gave evidence concerning the events of 2 and 3 November in her Statutory Declaration, dated 4 May 2018. The First Applicant had access to the letter written by the Sponsor giving his version of the incidents and withdrawing his sponsorship. I accept the first respondent’s submission that in those circumstances, the First Applicant understood the context in which the Tribunal identified difficulties in the First Applicant’s version of events and that the particulars given by the Tribunal were sufficiently clear to the First Applicant.
Counsel for the applicants submitted that the Tribunal did not explain to the applicant how and in what way her account to the police had been inconsistent and changed multiple times. Counsel for the applicants then referred to various versions given by the applicant of the event. The very particulars that the First Applicant would have known she had given to the police plainly constituted inconsistencies and changes in her story. That is precisely what was put to her by the Tribunal. As stated above, at no point did the First Applicant or the applicants’ migration agent seek further particulars from the Tribunal.
In the circumstances, the Tribunal complied with s.359AA of the Act in giving to the First Applicant clear particulars of information which the Tribunal considered would be the reason or part of the reason for affirming the decision under review. A fair reading of the transcript discloses that the Tribunal ensured as far as reasonably practicable that the First Applicant understood why the information was relevant and the consequences of the information being relied upon. The Tribunal invited the First Applicant to comment orally on or respond to the information; and, advised the First Applicant that she may seek additional time to comment on or respond to the information. Both the First Applicant and the applicants’ migration agent responded to the information at the hearing.
In the circumstances, there was no failure by the Tribunal to comply with s.359AA of the Act in giving such information to the applicant.
Accordingly, Ground Two is not made out.
Conclusion
A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the applicants; explored those claims with the First Applicant at a hearing; and, had regard to all material provided in support. The Tribunal put to the First Applicant matters of concern it had about her evidence and noted the First Applicant’s responses.
The Tribunal then made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for the reasons it gave. A fair reading of the Tribunal’s decision record makes clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law.
In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.
The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no power to interfere.
The proceeding before this Court should be dismissed with costs.
I certify that the preceding seventy-eight (78) paragraphs are a true copy of the reasons for judgment of Judge Emmett
Deputy Associate:
Date: 03 September 2020
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