Gai v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 658
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Gai v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 658
File number(s): MLG 2582 of 2017 Judgment of: JUDGE TAGLIERI Date of judgment: 18 August 2022 Catchwords: MIGRATION – temporary partner visa application– application for judicial review – decision of the Administrative Appeals Tribunal –– whether jurisdictional error – where Administrative Appeals Tribunal illogically took into account irrelevant information and did not address all mandatory considerations within the Migration Regulations 1994 (Cth) – jurisdictional error established – application for review granted Legislation: Migration Act 1958 (Cth) ss 5CB, 5F, 476
Migration Regulations 1994 (Cth), 1.15A
Cases cited: Eros v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1061
Fang Wang v Minister for Immigration and Multicultural Indigenous Affairs [2003] FCA 1044
He v Minister for Immigration and Border Protection [2017] FCAFC 206
Jiang v Minister for Immigration & Anor [2019] FCCA 728 at [100]
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17
Pharikan v Minister for Immigration & Anor [2018] FCCA 1453
Division: Division 2 General Federal Law Number of paragraphs: 40 Date of hearing: 17 June 2022 Place: Hobart Counsel for the Applicant: Ms Zhou Solicitor for the Applicant: VSTAR Lawyers and Consultants Counsel for the Respondents: Ms Richardson Solicitor for the Respondents: Sparke Helmore ORDERS
MLG 2582 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: XIAOLEI GAI
Applicant
AND: MINSTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE TAGLIERI
DATE OF ORDER:
18 AUGUST 2022
THE COURT ORDERS THAT:
1.A writ of certiorari issue quashing the decision of the second respondent dated 16 November 2017.
2.A writ of mandamus issue directed to the second respondent requiring it to reconsider and determine the applicant’s application for review according to law.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
Judge Taglieri
On the 28 November 2017, the Applicant filed an application in the Court for a review of a decision of the Administrative Appeals Tribunal, Migration and Refugee Division, (“the Tribunal”) dated 16 November 2017. Subsequently, an Amended Application dated 26 May 2022 was filed on 31 May 2022 (“the Amended Application”).
No issue was taken about reliance on the Amended Application. It enlivens this Court’s jurisdiction pursuant to section 476 of the Migration Act 1958 (Cth)(“the Act”).
BACKGROUND
The Applicant is a non-citizen who applied for a permanent Partner (Subclass 801) and temporary Partner (Subclass 820) Visa on 8 May 2015 on the basis of his relationship with and marriage to the sponsor.[1] That application was refused by a delegate of the First Respondent on 21 July 2016 as the delegate was not satisfied that the Applicant met the requirement of being the sponsor’s spouse as defined in s 5F and 5CB of the Act and relevant Regulations made for this purpose pursuant to subsection (3) of those legislative provisions.[2]
[1] Yuehua Yang.
[2] Relevantly, Migration Regulations 1994 (Cth), 1.15A.
On 16 November 2017, the Tribunal affirmed the decision of the First Respondent’s delegate to refuse the Applicant a temporary Partner visa following a hearing on 28 August 2017.
The Application to review the Tribunal’s decision came before me on 17 June 2022 for hearing. Both the Applicant and First Respondent were legally represented.
JURISDICTIONAL ERROR – RELEVANT PRINCIPLES
For the Applicant to succeed, he needs to persuade the Court that the Tribunal made a jurisdictional error of some recognised kind as usefully described in Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [82].
BASIS OF THE TRIBUNAL DECISION
The Tribunal’s reasons for decision disclose that it affirmed the decision to refuse the temporary Partner Visa because it was not satisfied that the Applicant and sponsor were in a spousal relationship within one or more of the conditions of section 5F(2) of the Act at the time of application or decision of the Tribunal.[3]
[3] Tribunal’s reasons for decision at [66].
In arriving at the above conclusion, it is self-evident from the Tribunal’s reasons for decision that it considered evidence before it and made findings about relevant, mandatory but non-exhaustive considerations that inform the circumstances of the spousal relationship.[4]
[4] As required by Regulation 1.15A (2) and (3)(a) to (d); He v Minister for Immigration and Border Protection [2017] FCAFC 206 [51] .
The Tribunal’s reasons and findings about most considerations in Regulation 1.15A(3) that applied are discussed in order under headings which make plain the Tribunal largely engaged in the required intellectual exercise.[5] It is evident that the Tribunal purported to address the sub-category considerations required by the Regulations to inform itself of the four primary considerations.
[5] He v Minister for Immigration and Border Protection [2017] FCAFC 206 at [51] to [58].
In arriving at the conclusion it did, in summary, the Tribunal found that the Applicant and sponsor:
·had financial positions which showed some consistency with a spousal relationship and gave that “some weight”;[6]
·had contact with each other and presence as parents of their child and gave the household aspect “little weight”, and had concern about whether they shared a household in the relevant period and gave this “lesser weight”;[7]
·had social situations which showed some consistency with a spousal relationship and gave this consideration “some weight”;[8] and
·due to the reasoning at [48] to [64], gave lesser weight regarding the consideration of their commitment to each other.[9]
[6] Tribunal’s reasons for decision at [18].
[7] Tribunal’s reasons for decision at [39] and [40].
[8] Tribunal’s reasons for decision at [47].
[9] Tribunal’s reasons for decision at [65].
APPLICANT’S GROUNDS FOR REVIEW
The Applicant relied upon a single ground for review in the Amended Application filed 26 May 2022. However, the ground asserts error in three ways arising from the Tribunal’s approach to the consideration in Regulation 1.15A (3)(d) of the Regulations and its reasoning at [48] to [64] of the decision.
As relevant to the ground of review, when determining if persons are in a spouse or partnered relationship, amongst other things, pursuant to Regulation 1.15A (3)(d), consideration is to be given to:
(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
Essentially the complaint is that the reasoning of the Tribunal demonstrates that it took into account evidence of a circumstance unrelated to the “circumstances of the relationship” and by doing so fell into jurisdictional error, either by:
(a)making a finding of fact that was unreasonable, illogical or irrational;
(b)taking into account an irrelevant consideration; or
(c)asking itself the wrong question.
The circumstance that was said to be improperly considered relates to the Applicant’s claim that he was unaware of the sponsor’s conviction in July 2014 for running an illegal brothel from her home. The reasons of the Tribunal that address this appear at [58] to [65] of the written reasons.
For the purposes of assessing the grounds of review, the Court received into evidence the Court Book filed by the First Respondent on 29 August 2018, which was marked as Exhibit R-1. It also read the Applicant’s affidavit filed 28 November 2017 and considered the Applicant’s written Outline of Submissions filed 26 May 2022.
The Applicant’s contentions, which were elaborated upon by his counsel at the hearing, are succinctly and clearly put in the written Outline of Submissions as follows:
17.The Tribunal reasoned (under the heading “Nature of persons’ commitment to each other”) that:
a.“it is … incongruous that such an important piece of information is said to be unknown to the [Applicant]”;
b.“it is difficult to see how parties who are said to be in a genuine and continuing spousal relationship featuring commitment have not communicated on a significant point such as being fined found guilty of a significant offence”;
c.“[a]s a result [the Tribunal has] additional concerns about the professed commitment between the parties”
Was [the sponsor]’s criminal record a ‘circumstance of the relationship’?
18.Despite using the heading “Nature of persons’ commitment to each other”, the Tribunal’s consideration of [the sponsor]’s criminal record does not on its face correspond to a mandatory relevant consideration under reg.1.15A(3)(d).
19.As the factors under reg.1.15A(3) are not exhaustive, it was open to the Tribunal to consider other “circumstances of the relationship”, which have not been enumerated under reg.15A(3).
20.The term “circumstances of the relationship” is not specifically defined in the Regulations.
21.The Macquarie Dictionary defines ‘circumstance’ as “a condition, with respect to time, place, manner, agent, etc., which accompanies, determines, or modifies a fact or event”, or “the existing condition or state of affairs surrounding and affecting an agent: forced by circumstances to do a thing”.
22.‘Relationship’ is a “connection”, “connection by blood or marriage”, or “an emotional connection between people, sometimes involving sexual relations”.
23.Accordingly, what is a “circumstance of the relationship” ought to be determined by reference to a condition or a state of affairs, which surrounds or affects the relationship between the applicant and the sponsor, in the sense that it could be probative of whether the applicant and the sponsor have a mutual commitment to a shared life as a married couple to the exclusion of all others; and whether the relationship between them is genuine and continuing.
24.The fact that [the sponsor] was fined for carrying on sex work without a licence in July 2014 is not a “circumstance of the relationship”, having regard to the fact that:
a.There is no temporal connection to the relationship, as [the Applicant] and [the sponsor] had not recommenced their relationship at the time she was found guilty in July 2014. The couple did not commit to a shared life together to the exclusion of all others until 30 March 2015, approximately eight months after the relevant charges;
b.The fact that [the sponsor] was fined in July 2014 for carrying on sex work without a licence is not a circumstance which surrounds the relationship or has the capacity to affect the couple’s commitment to a shared life together. At the time of the charges, the relationship between [the Applicant] and [the sponsor] had not yet recommenced. There is no suggestion that [the sponsor] was unfaithful to [the Applicant] in carrying on sex work, given they were divorced at the time.
c.The fact that [the sponsor] had been fined for carrying on sex work without a licence prior to the recommencement of her relationship with the Applicant is not probative of whether [the Applicant] and [the sponsor] formed a mutual commitment to a shared life as a married couple to the exclusion of all others eight months later, or whether their relationship is genuine and continuing.
25.While the Tribunal places emphasis on the fact that [the sponsor] had failed to disclose her criminal history to [the Applicant], despite “the profile of the case, its occurrence in a home in which the parties are said to have lived, the regional town environment where communities are said to be closer knit and the recent nature of the matter”, no reasoning or explanation was given as to why [the sponsor]’s criminal history prior to the resumption of the relationship was a relevant ‘circumstance’, how such disclosure would logically affect the couple’s mutual commitment to a shared life as a married couple, or the genuine and continuing nature of their marriage. The Tribunal’s conclusion that by reason of [the sponsor]’s failure to disclose her criminal history to [the Applicant], the couple did not treat their relationship as a long-term relationship, is irrational, illogical and not based on findings or inferences of fact supported by logical grounds.
26.Alternatively, in taking into account [the sponsor]’s criminal history, which neither surrounds nor affects her relationship with [the Applicant], the Tribunal took into account an irrelevant consideration, being a circumstance that is not a ‘circumstance of the relationship’.
27.Alternatively, the Tribunal asked itself the wrong question as to whether[the Applicant] and [the sponsor] could be in a spousal relationship for the purposes of the Act where his sponsor had, prior to their relationship recommencing, been fined for carrying on sex work without licence and had failed to disclose it to him.
[citations omitted]
FIRST RESPONDENT’S POSITION
The First Respondent relied on a written outline of submissions filed on 10 June 2022. In summary the First Respondent says that the grounds of review rest on a false premise because the Tribunal did not find that the Applicant and sponsor were not in a relationship on the basis of the criminal conviction or that the sponsor’s work in the brothel industry was a circumstance of the relationship.
The crux of the First Respondent’s contention is that the Tribunal properly made findings about the lack of communication between the Applicant and sponsor about the subject of the criminal conviction. Further, that the Tribunal relevantly took this into account to inform itself about the nature of their commitment to each other. In this regard, the First Respondent highlights the reasoning of the Tribunal at [63]:
It is nonetheless incongruous that such an important piece of information is to be unknown to the applicant…It is difficult to see how parties who are said to be in genuine and continuing spousal relationship featuring commitment have not communicated on a significant point such as being fined [sic] found guilty of a significant offence…
ISSUES ARISING
First, I do not consider that the Applicant’s grounds of review are based on a false premise, as will be apparent from the reasons that follow.
The written outline of submission dated 6 May 2022 and the oral submissions by counsel for the Applicant make it plain that the purported jurisdictional error lies in the Tribunal informing itself and relying on facts concerning the sponsor’s criminal activity/conviction prior to and outside of the marriage relationship, to make findings about the nature of the parties’ commitment to each other and what weight should be given to that consideration in Regulation 1.15A (3)(d).
On the evidence before the Tribunal, the uncontroversial facts were that:
(a)The Applicant and the sponsor had been married in 2006,[10] had a child in 2007,[11] divorced in 2010;[12]
(b)The sponsor had married another man in July 2010 and divorced from him in 2014;[13]
(c)The Applicant and the sponsor re-married in May 2015[14] and claimed to be partnered from about this time; and
(d)The sponsor’s criminal offence and conviction for keeping an illegal brothel occurred in around July 2014.[15]
[10] Court Book at page 400.
[11] Court Book at page 340.
[12] Court Book at page 322.
[13] Court Book at page 65.
[14] Court Book at page 71.
[15] Court Book at page 492.
This review is to be determined on the basis of whether the Tribunal fell into jurisdictional error when it concluded that lesser weight be given to the consideration of the parties’ commitment to one another and, if so, whether this materially affect the decision taken.
EVALUATION – JURISDICTIONAL ERROR
A collective reading of the written reasons from [48] shows that the Tribunal had regard to evidence about some of the sub-considerations referred to in Regulation 1.15A(3)(d), which concerns persons’ commitment to each other.
In particular, at [48] it addressed the duration of the relationship and length of time the parties lived together.[16] At [52] to [56] of the reasons, the Tribunal discussed, evaluated and made findings about evidence relating to their degree of companionship and support.[17]
[16] Reg.1.15A(3)(d)(i) and (ii).
[17] Reg.1.15A(3)(d)(iii),
The Tribunal then expressed concerns about the parties’ professed commitment and in the context of “other concerns” not specified, the member doubted the true nature of the relationship and whether it was treated as a long term one.[18]
[18] Tribunal’s reasons at [64], purporting to address Reg.1.15A(3)(d)(iv).
The reasons of the Tribunal at [61] to [64] clearly show that significant emphasis was placed on the evaluation of the parties’ evidence about what was not shared between them about the sponsor’s criminal offence and conviction.
At [62], the Tribunal said it was not satisfied with the Applicant’s explanation that the sponsor did not tell the Applicant about the offence/conviction or that he was not be bothered by the fact of it.[19]
[19] Tribunal’s reasons at [58] to [60].
At [63] the Tribunal said that it was incongruous that the information about the offence and conviction would not be shared and it was difficult to see how such information would not be shared in a genuine and continuing spousal relationship featuring commitment.
In Fang Wang v Minister for Immigration and Multicultural Indigenous Affairs [2003] FCA 1044, Allsop J as he then was stated at [7]:
The ascertainment of what is a circumstance of the relationship of the parties will depend upon (a) the material before the decision-maker, (b) a factual question or questions as to what that material throws up as a "circumstance of the relationship", and (c) the objective conclusion as to what the circumstances of the relationship are, not merely the underlying Tribunal's view of whether something is a circumstance or not.
[emphasis added]
However, the Tribunal did not directly consider the fact of the offence/conviction per se as a circumstance of the relationship. It is sufficiently clear that it took non-disclosure or failure to share the information about it during the relationship to assess their level of commitment in the relationship.
A number of authorities have held that it is permissible for a decision maker to take into account facts prior to the relationship to inform the nature of the relationship during the relevant period, being from the time it is said to commence to the date of decision.[20]
[20] Pharikan v Minister for Immigration & Anor [2018] FCCA 1453 at [127]–[131]; Jiang v Minister for Immigration & Anor [2019] FCCA 728 at [100].
The Tribunal may have been entitled to make findings on the evidence before it about non-disclosure of the sponsor’s prior offence/conviction after the parties re-married as part of its evaluation of whether the parties were committed to one another or saw the relationship as long-term, if this was relevant to informing about the nature of the parties’ commitment. Pharikan v Minister for Immigration & Anor [2018] FCCA 143[21] is an example of how facts and circumstances not temporally connected to a period of a relationship were found to be relevant.
[21] At [127] – [131]
However, the Tribunal’s written reasons do not logically disclose how truthfulness or disclosure about criminal convictions before the parties married is relevant to the Applicant and sponsor’s commitment to one another. Further, the Tribunal itself acknowledged that objectively many facts are not shared in committed relationships. It said at [63]:
…Couples have been known to withhold information from one another for a variety of reasons…
Objectively, whether the sponsor had shared information about the prior convictions with the Applicant is not relevant to the Applicant and sponsor’s commitment to one another. I accept the submissions made on behalf of the Applicant and referred to at [16]. Furthermore, if the sponsor’s prior conviction was likely to impact the Applicant in some way during the relationship and there was evidence about this, the Tribunal would have been entitled to make findings that the information had not been shared and take it into account as objectively relevant to the nature of the relationship. However, there was no evidence of such nature. In addition, the Tribunal itself acknowledged that such fact or information was known not to be shared and from this it can be inferred objectively may not be shared.
For the reasons discussed at [34] of these reasons, the Tribunal took into account an irrelevant consideration and engaged in illogical reasoning as it failed to reveal how non-disclosure of the prior conviction impacted on commitment in the relationship.
Further, as noted at [25] of these reasons, it is unclear what findings the Tribunal actually made. Review of the reasoning at [60] to [64], discloses no apparent finding about:
(a)Whether the Applicant did know of the sponsor’s convictions prior to the hearing; and
(b)Regardless of whether he did, if it demonstrated an absence of commitment between the parties.
At [63] and [64] of the written reasons, the member simply expresses “difficulty in seeing”, “concerns” and “doubts”, but contrary to the requirement to consider the matters specified in Regulation 1.15A (3)(d) of the Regulations, no express finding is made about this. The mere expression of difficulty, doubt or concern does not equate to making a finding in relation to the mandatory considerations in the Regulations. Accordingly, this too demonstrates a failure to actively consider the mandatory considerations in my view, particularly those relating to Regulation 1.15A(3)(d).[22]
[22] Eros v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1061 at [22]; He v Minister for Immigration and Border Protection [2017] FCAFC 206 [51] to [58]
MATERIALITY OF ERROR
I should only allow the application for review if the Tribunal’s failings referred to at [34] to [37] materially affected the ultimate conclusion of the Tribunal. The legal principles concerning materiality are well settled.[23]
[23] MZAPC v Minister for Immigration and Border Protection [2021] HCA 17.
The ultimate issue of whether Applicant and sponsor were in a genuine spousal relationship was finely balanced, as the Applicant submits. Had the Tribunal not taken into account irrelevant or illogical considerations and if it had made specific findings about all the mandatory considerations as required pursuant to Regulation 1.15A(3), I consider a reasonable and objective decision maker might have decided differently.[24]
[24] MZAPC v Minister for Immigration and Border Protection [2021] HCA 17.
Accordingly, the application for review should succeed and orders should be made as sought in the Amended Application dated 26 May 2022.
I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Taglieri. Associate:
Dated: 18 August 2022
[9] Tribunal’s reasons for decision at [65].
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