Fobizi v Minister for Immigration & Anor
[2017] FCCA 1738
•3 August 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FOBIZI v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 1738 |
| Catchwords: WORDS AND PHRASES – “must” – “consider” – “all”. |
| Legislation: Bankruptcy Act 1861 (UK), s.69 Migration Act 1958 (Cth), ss.5F, 65, 474, 476 Migration Regulations 1994 (Cth), reg. 1.15A, sch.2, cll.309.211, 309.221 |
| Cases cited: AUE15 v Minister for Immigration & Border Protection [2016] FCA 331; (2016) 239 FCR 148 Butterworth v Minister for Immigration &Anor [2016] FCCA 876 Duke of Newcastle v Morris (1870) LR 4 HL 661 |
| Applicant: | JOHN FOBIZI |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 13 of 2016 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 13 July 2016 |
| Date of Last Submission: | 13 July 2016 |
| Delivered at: | Perth |
| Delivered on: | 3 August 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr FA Robertson |
| Solicitors for the Applicant: | Adamson & Adamson Lawyers |
| Counsel for the First Respondent: | Mr PR Macliver | |
For the Second Respondent: | Submitting appearance, save as to costs | |
Solicitors for the Respondents: | Australian Government Solicitor | |
ORDERS
That a writ of certiorari issue quashing the decision of the second respondent made on 18 December 2015.
That a writ of mandamus issue requiring the second respondent to re-hear the application for review made by the applicant on 10 December 2014 according to law.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 13 of 2016
| JOHN FOBIZI |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
On 19 January 2016 Mr John Fobizi (“Mr Fobizi”) filed an application for judicial review (“Judicial Review Application”) under s.476 of the Migration Act 1958 (Cth) (“Migration Act”) of a decision of the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal”). The Tribunal Decision affirmed an earlier decision by a delegate (“Delegate’s Decision” and “Delegate”) of the first respondent, the Minister for Immigration & Border Protection (“Minister”) to not grant Mr Fobizi’s wife, Ms Celine Mbiap Sameh (“Ms Sameh”) a Partner (Provisional) (Class UF) Visa (“Partner Visa”).
The Tribunal Decision appears in the Court Book (“CB”) at 401-412.
Mr Fobizi is the review applicant for the purpose of the Tribunal Decision, and is also the sponsor of Ms Sameh who was the visa applicant for the Partner Visa.
Background
The background facts are as follows:
a)on 7 March 2014, Ms Sameh applied for the Partner Visa: CB 1-20 (“Partner Visa Application”) claiming to have been married to Mr Fobizi since 4 October 2013: CB 8, question 55. Ms Sameh was outside Australia when the Partner Visa Application was made: CB 1, questions 2 and 3;
b)statutory declarations from Mr George Eyong: CB 45-47 and Mr Henry Kui Wah: CB 48-50 were provided in support of the Partner Visa Application, along with handwritten letters from both Mr Fobizi: CB 53-54 and Ms Sameh: CB 51-52;
c)Mr Fobizi and Ms Sameh submitted evidence supporting their application, including but not limited to:
i)a selection of emails between them: CB 66-73;
ii)photographs: CB 74-84;
iii)receipts said to evidence financial support and dependence: CB 85-89; and
iv)a bundle of 'viber' messages between Ms Sameh and Mr Fobizi between 21 November 2012 and 13 January 2014: CB 90-105;
d)the Delegate’s Decision on 14 November 2014 was to refuse the Partner Visa Application: CB 284-292;
e)on 23 October 2015, the Tribunal held a hearing (“Tribunal Hearing”) and heard evidence from Ms Sameh and Mr Fobizi, amongst others: CB 399; and
f)on 18 December 2015, the Tribunal Decision affirmed the Delegate’s Decision to refuse the Partner Visa Application: CB 401-411.
Tribunal Decision
As the Tribunal correctly noted at CB 402 at [8], clauses 309.211 and 309.221 of schedule 2 to the Migration Regulations 1994 (Cth) (“Migration Regulations”) require that at the time the Partner Visa Application was made, and at the time of the Tribunal Decision, Ms Sameh must be the spouse of an Australian citizen. The term “spouse” is defined in s.5F of the Migration Act, to require that the two persons be in a married relationship. In the Tribunal Decision the Tribunal determined that it was satisfied that the parties were validly married, and had had their marriage registered in the Cameroon Embassy in Pretoria in South Africa on 4 October 2013 according to a certified copy of a marriage certificate provided to the Tribunal: CB 403 at [9].
In the Tribunal Decision the Tribunal then went on to consider, separately, the matters set out in reg.1.15A(3) of the Migration Regulations and found that:
a)as to the financial aspects of the relationship: CB 403-404 at [10]-[17]:
i)that it is difficult for two people living in two separate countries to acquire property in joint names, open joint bank accounts, borrow money jointly and that the only way they could pool money was through money transfers;
ii)there was evidence that Mr Fobizi sent money to Ms Sameh, but it was not sufficient to indicate a pooling of resources or a sharing of day-to-day finances; and
iii)given the difficulties associated with establishing joint finances due to living in two different countries, the Tribunal placed limited weight on this fact;
b)as to the nature of the household: CB 404-405 at [18]-[25]:
i)given that Mr Fobizi and Ms Sameh lived in separate countries, there was limited opportunity for them to live together as spouses;
ii)found that Mr Fobizi’s children had been cared for by Ms Sameh for a two week period in May 2014 and again in May 2015; and
iii)whilst Ms Sameh has an intention to care for Mr Fobizi’s children on arrival in Australia and has cared for them in the past, the parties have had limited opportunity to establish a household together, and so the Tribunal placed little weight on this factor; and
c)as to the social aspects of the relationship: CB 405-406 at [26]-[38]:
i)there were short telephone calls between Ms Sameh and members of Mr Fobizi’s family, although such short calls did not indicate the development of a relationship between Ms Sameh and members of Mr Fobizi’s family;
ii)Mr Fobizi had met Ms Sameh’s family and that various friends and relatives attended and witnessed the marriage of Ms Sameh and Mr Fobizi, and the Tribunal was satisfied that the family, friends and associates of Mr Fobizi and Ms Sameh were aware of the marriage; and
iii)ultimately the Tribunal was satisfied that the social aspects of the relationship evidenced a spousal relationship.
The final matter in reg.1.15A(3) of the Migration Regulations is the nature of the persons’ commitment to each other, including whether the persons see the relationship as a long-term one: reg.1.15A(3)(d)(iv) of the Migration Regulations. Because the Judicial Review Application claims that there was a failure to consider whether the persons’ commitment to each other was a long-term one it is necessary to set out the Tribunal’s consideration of this matter, that is, the nature of the persons’ commitment to each other (which appears at CB 406 at [39]-[58]), in more detail. In relation to the nature of the persons’ commitment to each other the Tribunal considered:
a)the bundle of “viber” communications between Mr Fobizi and Ms Sameh: CB 406 at [40]-[42];
b)the circumstances under which, and the time at which, Mr Fobizi and Ms Sameh said they met: CB 407 at [43]-[45];
c)when Mr Fobizi said he decided to marry Ms Sameh: CB 407 at [46];
d)the nature of the financial support provided by Mr Fobizi to Ms Sameh: CB 407 at [47]-[48];
e)the inconsistencies in Mr Fobizi’s evidence, and in particular inconsistencies in relation to:
i)when Mr Fobizi and Ms Sameh met: CB 408 at [49]-[50];
ii)the provision of finances by Mr Fobizi to Ms Sameh: CB 408 at [51]; and
iii)Mr Fobizi’s account of his travel to meet Ms Sameh’s parents and to attend the funeral of the mother of his two children, and as to the time that he spent in South Africa when visiting Africa: CB 408-409 at [49]-[54];
f)Ms Sameh’s failure to personally meet with Mr Fobizi’s family, about which it expressed concern, and Ms Sameh’s failure to travel to Cameroon to personally introduce Mr Fobizi to her family: CB 409 at [55]; amd
g)evidence that Ms Sameh would be required to assist Mr Fobizi with the care of his children (whose mother had previously died), and the nature of the “bond” between the children and Ms Sameh: CB 408 at [56].
After reviewing and considering the evidence in relation to how Mr Fobizi and Ms Sameh met and the instances of financial support, the Tribunal found that it:
a)was not satisfied that Mr Fobizi had been truthful as to the circumstances under which he met Ms Sameh;
b)was concerned that Mr Fobizi had been sending money to Ms Sameh prior to the time when he said they first met in person; and
c)was not satisfied that the examples of communication provided indicated that the parties provided companionship and emotional support to each other, with the Tribunal finding at CB 409 at [58] that:
considering all the available evidence the Tribunal is not satisfied … [Mr Fobizi] and … [Ms Sameh] provide companionship to each other or draw emotional support from each other.
The Tribunal ultimately found that after considering all of the evidence singularly and cumulatively it was not satisfied that Mr Fobizi and Ms Sameh had a mutual commitment to a shared life together to the exclusion of all others, that any commitment was genuine and continuing, or that they lived together or that they did not live separately and apart on a permanent basis. The Tribunal came to that conclusion “based on the inconsistencies and implausibilities in the evidence before it”: CB 410 at [63].
Grounds of Judicial Review Application
The grounds of the Judicial Review Application as amended on 14 June 2016 are as follows:
1. The [T]ribunal failed to complete the exercise of its jurisdiction.
Particulars
In finding that the requirements of s. 5F(2)(b) of the Migration Act were not met, the Tribunal failed to properly consider and decide as to whether the visa applicant had a commitment to the relationship to the exclusion of all others and in particular whether the persons saw the relationship as a long term relationship as required by Regulation 1.15A(3)(d) of the Migration Regulations.
Relevant legislation
Section 5F of the Migration Act provides as follows:
(1) For the purposes of this Act, a person is the spouse of another person if, under subsection (2), the 2 persons are in a married relationship.
(2) For the purposes of subsection (1), persons are in a married relationship if:
(a) they are married to each other under a marriage that is valid for the purposes of this Act; and
(b) they have a mutual commitment to a shared life as husband and wife to the exclusion of all others; and
(c) the relationship between them is genuine and continuing; and
(d) they:
(i) live together; or
(ii) do not live separately and apart on a permanent basis.
(3) The regulations may make provision in relation to the determination of whether one or more of the conditions in paragraphs (2)(a), (b), (c) and (d) exist. The regulations may make different provision in relation to the determination for different purposes whether one or more of those conditions exist.
Regulation l.15A provides as follows:
(1) For subsection 5F(3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5F(2)(a), (b), (c) and (d) of the Act exist.
(2) If the Minister is considering an application for:
(a) a Partner (Migrant) (Class BC) visa; or
(b) a Partner (Provisional) (Class UF) visa; or
(c) a Partner (Residence) (Class BS) visa; or
(d) a Partner (Temporary) (Class UK) visa;
the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).
(3) The matters for subregulation (2) are:
(a) the financial aspects of the relationship, including:
(i) any joint ownership of real estate or other major assets; and
(ii) any joint liabilities; and
(iii) the extent of any pooling of financial resources, especially in relation to major financial commitments; and
(iv) whether one person in the relationship owes any legal obligation in respect of the other; and
(v) the basis of any sharing of day-to-day household expenses; and
(b) the nature of the household, including:
(i) any joint responsibility for the care and support of children; and
(ii) the living arrangements of the persons; and
(iii) any sharing of the responsibility for housework; and
(c) the social aspects of the relationship, including:
(i) whether the persons represent themselves to other people as being married to each other; and
(ii) the opinion of the persons' friends and acquaintances about the nature of the relationship; and
(iii) any basis on which the persons plan and undertake joint social activities; and
(d) the nature of the persons' commitment to each other, including:
(i) the duration of the relationship; and
(ii) the length of time during which the persons have lived together; and
(iii) the degree of companionship and emotional support that the persons draw from each other; and
(iv) whether the persons see the relationship as a long-term one.
(4) If the Minister is considering an application for a visa of a class other than a class mentioned in subregulation (2), the Minister may consider any of the circumstances mentioned in subregulation (3).
Submissions
Mr Fobizi’s submissions
Mr Fobizi submitted that:
a)other than the finding at CB 409 at [58]: see [8(c)] above, the Tribunal made no other relevant finding in relation to the nature of the commitment shown by Mr Fobizi and Ms Sameh to each other and more particularly failed to address, at all, whether Mr Fobizi and Ms Sameh viewed their relationship as a long-term relationship;
b)the matters set out at reg.1.15A(3) of the Migration Regulations are not finite in addressing the matter of mutual commitment. As is made clear the nature of that commitment is said to "include" the matters at reg.1.15A(3)(d)(i)-(iv) of the Migration Regulations. When determining whether parties have a mutual commitment to a shared life, the matters set out in the Migration Regulations direct attention to the nature of that commitment, including the duration of the relationship, the length of time the persons have lived together, the degree of companionship and emotional support they derive from each other, and whether the persons concerned see the relationship as a long-term relationship: Butterworth v Minister for Immigration &Anor [2016] FCCA 876 at [14] per Judge Nicholls (“Butterworth”);
c)the purpose of s.5F(3) of the Migration Act is to enable regulations to be made to assist in the decision-maker’s determination as to whether the matters, or any one of them, in s.5F(2) of the Migration Act are made out: Butterworth at [47] per Judge Nicholls;
d)regulation 1.15A(2) of the Migration Regulations provides that in considering a Partner Visa Application the relevant decision-maker "must consider all of the circumstances of the relationship, including the matters set out in subregulation (3)" (emphasis in Mr Fobizi’s submissions). It is clear that the purpose is to direct the attention of the Tribunal to the obligation to consider all of the circumstances of the relationship, including those which are set out in reg.1.15A(3) of the Migration Regulations;
e)the Tribunal in this case did not reject the evidence that Ms Sameh intends to assume the role of mother to Mr Fobizi’s children upon relocating to Australia;
f)the focus is upon the failure of the Tribunal to consider “whether the persons see the relationship as a long-term one”: Migration Regulations, reg.1.15A(3)(d)(iv);
g)as was noted in Butterworth at [47] per Judge Nicholls:
i)the relevant criterion is a mutual commitment. Whilst that is not a factor to be determined exclusively by reference to the subjective intentions of the applicants, the Tribunal fails in its task when it makes no findings as to the subjective elements which could lead to the objective determination of that question; and
ii)whilst there might be some basis in the Tribunal's reasons for the findings that have been made, it is for the Tribunal, not the Court, to complete its task and make findings as required by the statutory and regulatory scheme; and
h)in this case the Tribunal fell into a similar error to that of the Tribunal in Butterworth. Noting the Tribunal’s finding at CB 406 at [36], that the social aspects of the relationship evidenced a spousal relationship, the Tribunal failed to make any finding in relation to the subjective element of whether the parties have a mutual commitment as required, particularly by failing to have regard to whether Ms Sameh and Mr Fobizi regarded the relationship as a long-term relationship.
Minister’s submissions
The Minister submitted that:
a)the Tribunal properly considered the nature of the parties' commitment to each other, and examined in detail the evidence before it, including text messages between the parties and evidence as to how they met and developed their relationship: CB 406-409;
b)the Tribunal was, however, concerned about the sparse level of communication between the parties: CB 406 at [40]-[42], and the inconsistencies in the evidence from Mr Fobizi regarding the parties' relationship: CB 408-409 at [49]-[58]. The Tribunal was entitled to have regard to inconsistencies that it found to exist in the evidence provided by Mr Fobizi to it, and to weigh those inconsistencies in reaching its findings and conclusions: Mahasneh v Minister v Immigration & Anor [2014] FCCA 1038 at [25] per Judge Emmett (“Mahasneh”);
c)the Tribunal was also not required to accept uncritically any and all claims made by an applicant: Mahasneh at [23] per Judge Emmett (and the cases there cited);
d)further, even if the Tribunal did not specifically refer to whether the parties themselves viewed their relationship as a long-term relationship, the Tribunal considered all of the evidence available to it, much of which it set out in reaching its conclusions, including evidence which detailed the length of the relationship and the communications between Mr Fobizi and Ms Sameh: CB 406-409 at [40]-[58];
e)the Tribunal was not required to "laboriously evaluate seriatim" each of the considerations set out in reg.1.15A(3)(d) of the Migration Regulations, and the evidence the Tribunal considered demonstrates that it addressed each of matters which reg.1.15A(3) required, including that identified by reg.1.15A(3)(d): Zhang v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 30 at [19]-[20] per Moore, Mansfield and Dowsett JJ (“Zhang”);
f)given its concerns about the evidence, it was open to the Tribunal to make the relevant findings that it made and, in particular, that it was not satisfied that the parties have a mutual commitment to a shared life together to the exclusion of all others that is genuine and continuing: CB 410 at [53]. It is not open to the Court to review a finding of fact reasonably open to the Tribunal: Yang & Anor v Minister for Immigration & Anor [2014] FCCA 20 at [25] per Judge Lucev (“Yang”);
g)on an objective level, the findings made by the Tribunal were not legally unreasonable based on the evidence before it; and
h)further, even if the Tribunal did not specifically consider whether Mr Fobizi and Ms Sameh saw the relationship as a long-term one, that would not involve jurisdictional error. It is patently clear from the Tribunal’s reasons that irrespective of whether the parties considered the relationship a long-term one, that could not have affected the Tribunal Decision: Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] and [84] per McHugh, Gummow and Hayne JJ (“Yusuf”).
Consideration
Jurisdictional error required
The Tribunal Decision is only liable to be set aside upon review by this Court if it involves jurisdictional error: Migration Act, ss.474 and 476; Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. Further, an error by the Tribunal, will only constitute jurisdictional error if the Tribunal:
a)identifies a wrong issue;
b)asks the wrong question;
c)ignores relevant material; or
d)relies on irrelevant material,
in such a way that the Tribunal’s exercise or purported exercise of power is thereby affected resulting in a decision exceeding or failing to exercise the authority or powers given under the relevant statute: Yusuf at [82] per McHugh, Gummow and Hayne JJ.
Analysis of reg.1.15A(2) and (3) of the Migration Regulations
The regulation
Regulation 1.15A(2) of the Migration Regulations requires that the Tribunal “… must consider all of the circumstances of the relationship, including the matters set out in …” reg.1.15A(3) of the Migration Regulations which include:
(d)the nature of the persons’ commitment to each other, including:
…
(iv)whether the persons see the relationship as a long-term one.
“Must”
In dealing with migration legislation which required that applications “must” be lodged within a certain time limit, the Federal Court in Wang v Minister for Immigration & Multicultural Affairs (1997) 71 FCR 386; (1997) 151 ALR 717; (1997) 45 ALD 104; FCR at 391 per Merkel J (“Wang”) held that “must” is a word of absolute obligation, and went on to observe that “[s]uch an interpretation also accords with the principle that enactments requiring that a specified procedure be followed in courts are usually mandatory and not merely directory”: Wang FCR at 391 per Merkel J. The Federal Court cited:
a)Posner v Collector for Inter-state Destitute Persons (Vic) (1946) 74 CLR 461 (“Posner”) where one High Court Justice observed that “must” was a word of “absolute obligation” when used in legislation requiring personal service on a party: Posner at 490 per Williams J; and
b)Kosovich v Mancini (1982) 31 SASR 272 (“Kosovich”) where the South Australian Supreme Court was dealing with road transport legislation which provided that the mass of a vehicle “must be determined in accordance with the regulations”, and in relation to which it was observed that the phrase “must be determined” imposed an “obligation which cannot be regarded as directory only” and that the use of “must” in ordinary language was “imperative”: Kosovich at 275 per Millhouse J.
Other examples of federal courts finding that the use of “must” is indicative of an imperative command and that it expresses necessity in the sense of an obligation or requirement include Australian Fisheries Management Authority v PW Adams Pty Ltd (1995) 61 FCR 314; (1995) 22 AAR 261; (1995) 134 ALR 51; (1995) 39 ALD 481; FCR at 332 per Sheppard J (with whom Tamberlin J FCR at 334 and Lehane J FCR at 336 agreed); Hill v Compass Ten Pty Ltd [2012] FCA 761; (2012) 205 FCR 94; (2012) 223 IR 341; (2012) 64 AILR 101-672 at [29]-[31] per Cowdroy J; Pitrau v Barrick Mining Services Pty Ltd [2012] FMCA 186; (2012) 259 FLR 447; (2012) 219 IR 208; (2012) 64 AILR 101-563 at [23] per Lucev FM, and Gration v Remote King & Anor [2015] FCCA 2617; (2015) 302 FLR 53 at [31] per Judge Jones.
“All”
If there be any doubt that an imperative obligation be imposed by the use of the word “must” in reg.1.15A(2) of the Migration Regulations that doubt is removed by considering the phrase in which “must” appears more fully. In that regard the relevant phrase is “must consider all of the circumstances of the relationship”.
The use of the word “all”, without limitation, is indicative both of the imperative nature of the obligation, and its breadth. In Duke of Newcastle v Morris (1870) LR 4 HL 661 it was held that the words “all debtors” used in s.69 of the Bankruptcy Act 1861 (UK) included persons of every description, and that peers could not claim exemption from the operation of the provision on the ground that they had the privilege of Parliament. In Milne & Ors v The Municipal Council of Sydney (1912) 14 CLR 54; (1912) 12 SR (NSW) 673; (1912) 18 ALR 550 (“Milne”) the plaintiffs had agreed with the defendants to do “all” the mechanical repairs required to the defendant’s electrical plant for the term of 12 months at certain rates of payment, and the High Court held on the construction of the documents that there should be implied a promise by the defendants to employ the plaintiffs to the exclusion of other persons to do those repairs: “… [it] is a clear contract to do so specific work, that is to say, all the mechanical repairs to the plant that may be needed to be done during the term of twelve months”: Milne CLR at 64 per Griffith CJ, and see also CLR at 69 per Barton J. In Edgware Trust, Ltd v Lawrence [1961] 1 WLR 1354 (“Edgware Trust”) a borrower gave a promissory note in favour of money lenders which contained a default clause which as printed in the promissory note was clear, but as printed in the memorandum was unintelligible because certain words were omitted. By s.6(1) of the Money Lenders Act 1927 (UK) (“Money Lenders Act”) no contract for the repayment by a borrower of money lent to him was enforceable unless a note or memorandum of a contract was made and signed personally by the borrower, and under s.6(2) of the Money Lenders Act “the note or memorandum aforesaid shall contain all the terms of the contract”. In Edgware Trust at 1359 per Diplock J it was held that the whole purpose of s.6 of the Money Lenders Act requiring that the note or memorandum shall contain all the terms of the contract would be defeated unless the document in the possession of the borrower contained all the terms of the contract. A defence that pleaded that the memorandum did not comply with s.6(2) of the Money Lenders Act therefore succeeded.
The obligation imposed
It follows from the above that the obligation imposed by reg.1.15A(2) of the Migration Regulations is therefore to consider “all of the circumstances of the relationship”, whatever they might be. Regulation 1.15A(2) of the Migration Regulations then goes further, and to avoid any doubt whatsoever, includes within the matters which “must” be considered as part of the circumstances of the relationship the matter set out at reg.1.15A(3)(d)(iv) of the Migration Regulations, namely “whether the persons see the relationship as a long-term one”. That this is a matter which must therefore be specifically considered, given that it is an imperative obligation specifically imposed under reg.1.15A(2) and (3) of the Migration Regulations is further made plain by what was said by the Federal Court in AUE15 v Minister for Immigration & Border Protection [2016] FCA 331; (2016) 239 FCR 148 at [33] per Rares J (“AUE15”):
33 A statutory or legislatively prescribed requirement that a decision-maker take into account, or have regard to, a particular matter entails that the decision-maker must take the matter into account and give it weight as a fundamental element in making his or her determination as Mason J explained in The Queen v Hunt; Ex parte Sean Investments Pty Limited (1979) 180 CLR 322 at 329. In that case, the statute required the Minister to take into account one matter alone, namely, costs. In other cases a statute or other provision may, and often does, require a decision-maker to take into account a number of matters, some of which may reflect conflicting legislative or policy objectives. In those situations, the obligation of the decision-maker is to take each of the stipulated matters into account and give each weight as fundamental elements in the decision-making process. However, it is for the decision-maker to decide the degree of weight he or she gives to individual elements, in reaching a decision. I explained this in Telstra 176 FCR at 182-183 [110], in a passage approved by Jacobson, Lander and Foster JJ in Telstra Corporation Limited v Australian Competition Tribunal (2009) 175 FCR 201 at 242 [267], as follows:
“I am of opinion that the sense in which the High Court used the expression ‘fundamental weight’ in this context is to require the decision-maker to treat the consideration of the factors, as opposed to the factors themselves, as a central element in the deliberative process: Meneling Station 158 CLR 327 at 338 per Mason J. In this way the decision-maker will give appropriate weight to those factors. The Parliament sought to ensure that the Commission would give proper, genuine and realistic consideration to each of the factors it specified in s 152CR(1) but without confining it to those matters, as s 152CR(2) showed. Such consideration must be reflected in the Commission's reasons for its decision.”
In Minister for Immigration & Border Protection v Angkawijaya & Ors [2016] FCAFC 5; (2016) 236 FCR 303; (2016) 149 ALD 69 (“Angkawijaya”) the Full Court of the Federal Court observed that compliance with the prescribed criteria (in that case relating to defacto relationships but containing the same long-term relationship criteria as in reg.1.15A(3)(d)(iv) of the Migration Regulations) turns on the decision-maker’s satisfaction: Migration Act, s.65, as to whether or not the relevant criteria had been met and not on the objective existence of that fact, but that the Minister’s task was subject to an overarching obligation to consider all the circumstances of the claimed relationship: Angkawijaya at [5], [50] and [52] per Kenny and Griffiths JJ (with whom Allsop CJ at [1] agreed). The case presently before the Court is not dissimilar to Nassouh v Minister for Immigration & Multicultural Affairs [2000] FCA 788 (“Nassouh”) where in relation to the obligation imposed upon the Tribunal the Federal Court said that reg.1.15A(3) of the Migration Regulations “… was expressed in mandatory terms … [and] set out, among other things, particular circumstances of the relationship to which regard “must” have been had by the Minister (and, indirectly, by the Tribunal)”: Nassouh at [10] per Katz J. The Federal Court went on to observe that in relation to the criteria said not to have been considered in Nassouh that the Tribunal “… made no reference to that evidence [of the relevant criteria] and further made no findings of fact as to the financial aspects of the Nassouh relationship or the nature of the Nassouh household as of the date with which it was concerning itself …”: Nassouh at [21] per Katz J. Likewise, in Butterworth at [31] per Judge Nicholls this Court said that reg.1.15A(2) of the Migration Regulations made it “clear” that the “Tribunal must consider all of the circumstances of the relationship.”
The phrase “must consider all”, which applies to the circumstance as to whether Mr Fobizi and Ms Sameh themselves saw their relationship as a long-term one, therefore imposes an express obligation on the Tribunal to “consider” that circumstance. It was thus incumbent upon the Tribunal to actually consider and weigh the evidence as to whether Mr Fobizi and Ms Sameh saw their relationship as a long-term one, that is, it was necessary for the Tribunal to make findings which showed that that issue had been considered and give any such findings the necessary degree of weight in reaching its ultimate decision.
“Consider”
There can be no doubt that when an administrative decision-maker is required by legislation to “consider” a claim or other mandatory criteria, the administrative decision-maker must engage in an active intellectual process directed at that claim or criteria: Lafu v Minister for Immigration & Citizenship [2009] FCAFC 140; (2009) 112 ALD 1 at [47]-[54] per Lindgren, Rares and Foster JJ; Minister for Immigration & Citizenship v Khadgi [2010] FCAFC 145; (2010) 190 FCR 248; (2010) 274 ALR 438; (2010) 119 ALD 26 at [57] per Stone, Foster and Nicholas JJ.
The requirement to “consider” the relevant claim or criteria is not, however, a warrant for a court on an application for judicial review to engage in a fine and detailed analysis of the reasons of the administrative decision-maker. In AUE15 at [37] per Rares J the Federal Court observed that:
37 In Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 Brennan CJ, Toohey, McHugh and Gummow JJ said:
“ … that a court should not be ‘concerned with looseness in the language … nor with unhappy phrasing’ of the reasons of an administrative decision-maker [Pozzolanic (1993) 43 FCR 280 at 287]. The Court continued [Pozzolanic (1993) 43 FCR 280 at 287]: ‘The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error.’
These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed [see McAuliffe v Secretary, Department of Social Security (1992) 28 ALD 609 at 616]. In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision.”
Did the Tribunal consider whether Mr Fobizi and Ms Sameh saw the relationship as a long-term one?
The Court has set out at [7] above a detailed examination of the Tribunal’s findings under the heading of the nature of the persons’ commitment to each other, which demonstrates that the Tribunal considered those matters set out at reg.1.15A(3)(d)(i)-(iiii) of the Migration Regulations as to the duration of the relationship, the length of time during which Mr Fobizi and Ms Sameh have lived together, and the degree of companionship and emotional support that Mr Fobizi and Ms Sameh draw from each other. The Tribunal did not, expressly or implicitly, consider whether Mr Fobizi and Ms Sameh saw the relationship as a long-term one. The Tribunal was required to do so: AUE15 at [33] per Rares J, and [16]-[25] above. There is no evidence of an active intellectual process directed at the criteria as to whether Mr Fobizi and Ms Sameh saw the relationship as a long-term one. As a consequence, the Tribunal appears not to have taken this criteria into account, and has not given it such weight as it considered necessary in its decision-making process: compare AUE15 at [33] per Rares J. Even if the Tribunal were to give this criteria no weight, that is a task which it, and it alone, was required to undertake: Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1 at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ (“Wu Shan Liang”); Tran v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 297 at [5]-[7] per Kiefel, RD Nicholson and Downes JJ. It is evident on a plain reading of the Tribunal Decision that the Tribunal did not turn its mind, and therefore did not engage in any active intellectual process, in relation to the question of whether Mr Fobizi and Ms Sameh saw their relationship as a long-term one. This is thus a case in which there has not been a real, but rather a purported, exercise of power by the Tribunal because the Tribunal has not had regard to all of the matters which it must address: Zhang at [14] per Moore, Mansfield and Dowsett JJ, citing Minister for Immigration & Ethnic Affairs v Guo & Anor (1997) 191 CLR 559; (1997) 71 ALJR 743; (1997) 144 ALR 567; (1997) 48 ALD 481; CLR at 595 per Kirby J.
The Minister raised a number of matters in support of contentions that the Tribunal did consider whether Mr Fobizi and Ms Sameh saw the relationship as a long-term one, and that the Judicial Review Application ought to be dismissed, and in relation to those contentions the Court observes as follows:
a)there is no doubt that the Tribunal traversed, in detail, a considerable body of the evidence before it, and that it was entitled to have regard to the inconsistencies that it found to exist and to weigh those inconsistencies in reaching its findings and conclusions: Mahasneh at [25] per Judge Emmett. The difficulty here is that it is not evident that it considered or weighed those matters in relation to the relevant criteria as to whether Mr Fobizi and Ms Sameh saw their relationship as a long-term one, and it did not do so because it did not take that stipulated matter into account: compare AUE15 at [33] per Rares J;
b)likewise, it is uncontroversial that the Tribunal was not required to accept uncritically any and all claims made by Mr Fobizi, or Ms Sameh: Mahasneh at [23] per Judge Emmett (and the cases there cited), but again the difficulty arises here because the relevant criteria has not been taken into account (unlike in Mahasneh where the Court expressly found that the Migration Review Tribunal’s decision record demonstrated that it considered each of the matters identified in reg.1.15A of the Migration Regulations), and whether the Tribunal would have accepted Mr Fobizi’s and Ms Sameh’s views as to whether they saw the relationship as a long-term one was a matter which the Tribunal simply did not consider, and the weighing of any relevant evidence in relation to that criteria was consequently a task also not undertaken by the Tribunal;
c)there is no doubt that the Tribunal is not required to labour over, and evaluate, criteria seriatim, but it must be evident that it considered the relevant criteria, and it is not apparent that it did so in this case in relation to whether Mr Fobizi and Ms Sameh saw the relationship as a long-term one. In Zhang the Full Court of the Federal Court made a finding that the Tribunal had in sequence, considered the relevant criteria in reg.1.15A(3)(c) of the Migration Regulations which were there under consideration: Zhang at [20] per Moore, Mansfield and Dowsett JJ. That distinguishes Zhang from this case, in which it is not possible to say that the Tribunal, either at all, or in sequential consideration, considered all of the relevant criteria, and specifically that criteria in reg.1.15A(3)(d)(iv) of the Migration Regulations as to whether Mr Fobizi and Ms Sameh saw the relationship as a long-term one;
d)it may ultimately have been open to the Tribunal to make findings that it was satisfied that the parties did not see their relationship as a long-term one, and if the Tribunal had considered the criteria as to whether Mr Fobizi and Ms Sameh saw the relationship as a long-term one, and in so doing, had regard to the evidence and made a finding of fact then reasonably open to it, it would not be open to the Court to review that finding of fact: Yang at [25] per Judge Lucev, but it did not do so in this case, the Tribunal’s findings being based on its consideration of other criteria and the evidentiary inconsistencies in Mr Fobizi’s account of events; and
e)it is not “patently clear” that the Tribunal Decision could not have been affected by the Tribunal’s failure to consider whether Mr Fobizi and Ms Sameh saw their relationship as a long-term one, that is that the Tribunal would have arrived at the same decision if it had specifically considered that criteria. The Court is cognisant that the Tribunal Decision is not to be examined critically in search of error: Wu Shan Liang at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ, Sami v Minister for Immigration & Citizenship [2013] FCAFC 128; (2013) 139 ALD 1 at [17] per Jagot, Barker and Perry JJ, but this Tribunal Decision is not one that needs to be examined critically in search of error, for the error, namely the failure to consider the relevant statutory criteria, is plain on the face of the Tribunal Decision. Nor is the Court satisfied that the grant of relief could not possibly make a difference to the Tribunal’s eventual deliberations: SZOOR v Minister for Immigration & Citizenship [2012] FCAFC 58; (2012) 202 FCR 1; (2012) 289 ALR 463; (2012) 127 ALD 1 at [96] per McKerracher J (“SZOOR”). The occasion for the use of the exercise of the discretion to refuse relief in cases of jurisdictional error is rare: Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82; (2000) 75 ALJR 52; (2000) 176 ALR 219; (2000) 62 ALD 285 at [51]-[53] per Gaudron and Gummow JJ (with whom Gleeson CJ agreed: at [5]). The issue is not whether a re-hearing by the Tribunal might be futile, but whether a Court cannot be certain that it will be futile: Lee v Minister for Immigration & Citizenship [2007] FCAFC 62; (2007) 159 FCR 181; (2007) 241 ALR 363; (2007) 94 ALD 559 at [53] per Besanko J, that is, to return to SZOOR at [96] per McKerracher J “whether … the grant of relief could not possibly make a difference” to the eventual outcome before the Tribunal. In the absence of consideration of, and findings of fact in relation to, the relevant criteria, namely whether Mr Fobizi and Ms Sameh saw the relationship as a long-term one, the Court cannot be satisfied that further evaluation of that issue by the Tribunal would be futile. There is no doubt that the evidence thus far considered by the Tribunal has resulted in findings heavily weighted against Mr Fobizi, and were the matter to return to the Tribunal the Tribunal’s view as to the inconsistencies in Mr Fobizi’s account of events might be much the same as in the Tribunal Decision, and may result in the Tribunal not believing, or attaching no weight to, any evidence that Mr Fobizi (or indeed Ms Sameh) might give as to whether they see the relationship as a long-term one. That is, however, the Tribunal’s function, not the function of this Court on judicial review: Wu Shan Liang at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ; Angkawijaya at [68] per Kenny and Griffiths JJ.
In all the above circumstances, the Court is satisfied that the Tribunal Decision is affected by jurisdictional error, namely the failure to take into account a relevant consideration or issue, namely whether Mr Fobizi and Ms Sameh saw the relationship as a long-term one. The Court has also concluded that it would not be futile (in the sense referred to in the authorities) for the matter to be re-considered by the Tribunal.
Conclusion and orders
The Court has concluded that:
a)the Tribunal Decision is affected by jurisdictional error because it failed to take into account a relevant consideration or issue, namely whether Mr Fobizi and Ms Sameh saw their relationship as a long-term one;
b)it is not satisfied that it would be futile to have the Tribunal re-hear the matter; and
c)having regard to (a) and (b) above Mr Fobizi should be afforded prerogative relief by way of writs of certiorari and mandamus.
The Court will hear the parties as to costs.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Date: 3 August 2017
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