GAN v Minister for Immigration
[2016] FCCA 2257
•31 August 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GAN v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 2257 |
| Catchwords: MIGRATION – Judicial review of a decision of the Migration Review Tribunal – application for a Partner (Residence) (Class BS) (Subclass 801) visa – no grounds of jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5F, 5F(2)(b), 5F(2)(c), 5f(2)(c), 5F(2)(d), 359(3), 359A, 359AA |
| Cases cited: MZPAO v Minister for Immigration and Citizenship [2008] FCA 245 |
| Applicant: | QUAN GAN |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 385 of 2015 |
| Judgment of: | Judge Hartnett |
| Hearing date: | 5 May 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 31 August 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr Hughan |
| Solicitors for the Applicant: | Visatec Legal |
| Counsel for the Respondents: | Mr Brown |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The name of the Second Respondent be changed to the Administrative Appeals Tribunal.
The application be dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $6,825.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 385 of 2015
| QUAN GAN |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Before the Court is an application dated 2 March 2015 (which was thereafter amended) which seeks judicial review of a decision of the Migration Review Tribunal (as it then was) (‘the Tribunal’) dated 29 January 2015. The Tribunal affirmed a decision of a delegate of the First Respondent not to grant to the Applicant a Partner (Residence) (Class BS) (Subclass 801) visa (‘the visa’). The application seeks relief in the form of constitutional writs against the Tribunal decision.
The single ground of the application, as set out in the Applicant’s amended application filed 22 April 2016, is as follows:-
“The Tribunal failed to comply with s 359A of the Act.
Particulars
(a) At the hearing before it on 11 November 2014 the Tribunal received information from the sponsor of the Applicant which it considered would be the reason or part of the reason for affirming the decision under review.
(b) The Tribunal did not at the hearing, or subsequently, give the Applicant clear particulars of that information, ensure that the Applicant understood why the information was relevant to the review or invite the Applicant to respond to or comment on the information.”
The First Respondent seeks dismissal of the application and costs in the event of such dismissal. The First Respondent relies upon his response to application filed 11 March 2015.
Each of the parties filed submissions. The submissions of the Applicant were filed on 22 April 2016 and contentions of fact and law of the First Respondent were filed on 2 May 2016. The Court also had before it the evidence as contained in the Court Book filed by the First Respondent on 17 February 2016, and a list of authorities filed by the Applicant on 4 May 2016.
History
The Applicant was born on 30 March 1984 in He Nan, China. The Applicant is a Chinese citizen. He first came to Australia on 28 April 2004 as a holder of a Student visa. The Applicant met Ms Sally Le, an Australian permanent resident, on Boxing Day 2009 and they married on 15 January 2011. On 7 June 2011, the Applicant lodged an application for a Partner (Temporary) (Class UK) (Subclass 820) and a Partner (Residence) (Class BS) (Subclass 801) visa sponsored by Ms Lee.
On 24 July 2012 a Partner (Temporary) (Class UK) (Subclass 820) visa was granted to the Applicant. On 29 May 2013 the Applicant’s migration agent wrote to the Department of Immigration and Citizenship (as it then was) (‘the Department’) providing further information in support of the Applicant’s Partner (Resident) (Class BS) (Subclass 801) visa application. On 8 August 2013, the Applicant and his sponsor were invited to attend an interview with a delegate of the First Respondent. Those separate interviews took place on 29 August 2013. At the conclusion of the interviews it was explained to both the Applicant and sponsor that several inconsistencies were evident in the respective interviews and that the delegate was not satisfied the Applicant and sponsor were in a genuine relationship. They were advised that the Applicant’s migration agent would thereafter receive particulars as to those inconsistencies with a response sought.
The delegate emailed the Applicant and his sponsor’s migration agent inviting the Applicant to respond to concerns that the delegate had in regards to the claimed relationship. That correspondence was relevantly:-
“…
Concerns/inconsistencies:
1) Their marriage certificate contains different addresses however both the applicant and sponsor claimed during the interview that they were residing with each other at Unit 8/28 Wier Street, BALWYN from the commencement of their relationship in 2009 – they declared they were married on 15 January 2011.
2) The applicant declared that the sponsor had been working a Jurgen’s Swiss Bread for 6 months however sponsor (sic) declared she had been working at this organisation for 1 month.
3) The applicant declared that their house mates Tee and Eva had been residing with them for 1 year, however the sponsor declared they had been residing with them for 3-4 months.
4) The sponsor declared that the applicant paid for their recent utility bills by visiting the post office however the applicant declared that he had paid their recent utility bills by credit card and did not visit the post office.
5) The sponsor declared that the applicant commenced work yesterday (Wednesday, 28/8/2013) at 9am and finished at 7pm however the applicant declared that he was working ‘night shift’ and commenced at 7pm and finished at 5am.
6) The sponsor declared that they had dinner yesterday (Wednesday, 28/8/2013) between 7.30pm-8pm at China Bar however the applicant declared he was working ‘night shift’.
7) The sponsor declared that they went to bed together at 10pm yesterday (Wednesday, 28/8/2013) however the applicant was working ‘night shift’.
8) The sponsor declared that both their salaries are deposited into their joint bank account however the applicant stated he and the sponsor received cash in hand.
9) The sponsor stated that her wage is deposited into the joint account however the applicant declared that she receives cash in hand.
10) The sponsor declared that the applicant worked on Saturday (24/8/2013) ‘day shift’ from 10am-7pm, finished work at 8pm and they went to China Bar for dinner however the applicant departed Australia on 15/8/2013 – was not in Australia on Saturday and returned to Australia on 26/8/2013.
Additional concerns:
11) I further note, the applicant and sponsor’s claims during the interview did not support what had been indicated on the statutory declarations they provided with their 2nd stage documentation.”
The Applicant’s migration agent responded, via email, on 4 September 2013 attaching four Statutory Declarations and two further letters, with a view to satisfying the delegate that the relationship was genuine. The delegate was not so satisfied and refused the Applicant’s visa application on 7 October 2013 finding the Applicant was not the spouse of the sponsor according to the definition found in s.5F of the Migration Act 1958 (Cth) (‘the Act’). In particular the delegate found that:-
a)she was not satisfied that the Applicant and his sponsor maintained financial commitments as articulated in reg.1.15A(3)(a) of the Migration Regulations 1994 (Cth) (‘the Regulations’);
b)the Applicant and his Sponsor did not maintain shared household commitments as outlined in reg.1.15A(3)(b) of the Regulations;
c)she was not satisfied that the Applicant and his sponsor maintained a spousal relationship recognised as such by others as outlined in reg.1.15A(3)(c) of the Regulations; and
d)the Applicant did not meet the requirements as set out in reg1.15A(3) and that there was “every indication that your marriage is continued for the purposes of you procuring permanent residence under the partner program”.
On 23 October 2013 the Applicant lodged an application for review of the delegate’s decision with the Tribunal.
On 11 November 2014, the Applicant appeared before the Tribunal, in response to an invitation by the Tribunal to give evidence and present arguments about the issues arising in his case. The sponsor also attended the hearing and gave oral evidence. The Tribunal was provided with a set of written submissions by the Applicant’s newly appointed migration agent which attached a number of supporting documents. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The Applicant’s registered migration agent represented the Applicant in relation to his review application.
On 29 January 2015 the Tribunal affirmed the decision of the delegate. On 2 March 2015 the Applicant lodged his application for judicial review of the Tribunal’s decision.
The Tribunal Decision
At the hearing the Tribunal received oral evidence from both the Applicant and his sponsor. The Tribunal accepted that they had been validly married in Australia and that the sponsor was an Australian citizen.
The Tribunal noted that cl.820.221(2) of the Regulations required that the Applicant be the spouse or de facto partner of his sponsoring partner. The Tribunal correctly noted in its Statement of Decision and Reasons (the ‘Decision Record’) that the relevant time was ‘at the time of decision’. Section 5F of the Act defined spouse:-
“Spouse
(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.”
The Tribunal further acknowledged that regard was required to be had to reg.1.15A(3) of the Regulations which provided that all of the circumstances of the relationship, including evidence of the financial and social aspects of the relationship, the nature of the household maintained together, and the commitment of the Applicant and the sponsor to each other were to be taken into account. Regulation 1.15A(3) relevantly provided:-
“(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.”
Financial Aspects of the Relationship
The Applicant told the Tribunal that they had a home telephone with TPG and that it cost $59.90 per month for telephone and internet. Conversely, the sponsor gave evidence that they did not have a home telephone line. This was relevantly addressed in paragraphs 30 and 31 of the Decision Record:-
“30. … [The Applicant] stated that they have a home telephone with the provider TPG and it costs $59.90 a month for the phone and internet. He stated that both he and his wife also have mobile phones. The Tribunal asked him which providers their mobile phones are with and he stated that the phones are both pre-paid. He was unable to tell the Tribunal what his wife’s mobile phone number is.
31. In contrast the sponsor gave inconsistent evidence, telling the Tribunal that she and the applicant do not have a home phone line. She stated that they both have mobile phones, and that the applicant’s provider is Optus and her provider is Telstra.”
The Tribunal found that the Westpac Bank joint bank account records provided by the Applicant did not provide an accurate account of the Applicant’s and sponsor’s financial position, as set out in paragraph 34 of the Decision Record. The Tribunal said in its Decision Record at paragraph 28 the following:-
“28. The review applicant told the Tribunal that he and the sponsor have a joint bank account with the Westpac Bank which they have had for over a year. He has provided the Tribunal with records of that account for the period 8 January 2014 to 8 September 2014. Before that they had a different joint account, also with Westpac. Earlier records of the parties’ joint account with Westpac Bank dating back to mid-2012 are contained on the Departmental file. The Tribunal asked the applicant about large deposits into this bank account from a depositor named Menga Xu made between June and August 2014. Initially the review applicant told the Tribunal that he did not know who this person is, but then said this is a friend of his who was previously a part of his consulting company and the money deposited was associated with his business of which she had been a co-owner.”
Contradictory evidence in relation to their rental costs was given by the Applicant and sponsor. Paragraph 35 of the Decision Record is as follows:-
“35. Further the review applicant and the sponsor have provided significantly inconsistent evidence of their rental costs, with the applicant stating that their rent is more than $1,800.00 a month and the sponsor stating it is about $1,000.00 a month. The sponsor was also unable to tell the Tribunal who the parties’ residence is rented from.
The Tribunal concluded on the evidence before it that the financial aspects of the relationship were not indicative of a genuine spousal relationship.
Nature of the Household
The Tribunal stated in relation to the nature of the household that:-
“41. The evidence in respect of the parties’ household is scant and contains significant inconsistencies in matters which the Tribunal considers parties in a genuine spousal relationship would know and be consistent. The Tribunal affords this evidence limited weight.”
Social Aspects of the Relationship
The Tribunal had significant concerns about the evidence provided by the Applicant and the sponsor as to the social aspects of their relationship. During the hearing the Applicant, when questioned, had difficulty identifying the author of a witness statement, in which it was stated that the witness and the Applicant had become good friends and went out a lot together. A similar situation was highlighted in paragraph 56 of the Decision Record:-
“56. The Tribunal asked the applicant about a witness statement from Rochelle Strawbridge provided to the Department in the course of the visa application which states that that (sic) the witness and the applicant and sponsor are good friends and she that sees them at least three times a Week (Department file, f.39). The Tribunal asked the applicant who Rochelle Strawbridge is and the applicant responded that he doesn’t know anyone by this name.”
The content of a witness statement from Pei Yuon Gong was conceded by the migration agent representing the Applicant to be false.
Other findings of the Tribunal were as set out in the Decision Record as follows:-
“60. The sponsor could not answer the Tribunal’s question of what was the last social gathering was that she and the applicant attended together. She then stated that there was a big party that they were invited to but they didn’t go to. She does not know whose party it was, or what sort of party it was, or what month of the year the party took place.
61. The Tribunal asked her if this was the most recent social gathering they had been invited to, or if there was any other social activity to which she could refer since that party which took place almost two years ago. She stated that there was a wedding invitation as well, but she doesn’t know whose wedding it was. She stated that they have been to no social gatherings together in the past year or two. She stated that they have not been on holiday together since marrying in 2011.”
The Tribunal found that the evidence regarding the social aspects of the parties’ relationship was scant and contained significant inconsistencies which it had explored during the hearing with the Applicant and his sponsor. The evidence provided did not support a finding that the Applicant and sponsor represented themselves socially as being in a spousal relationship.
Nature of Commitment to One Another
The Tribunal noted in paragraph 65 of the Decision Record that it had concerns in relation to the Applicant and sponsor’s commitment to each other:-
“65. Based on the significant inconsistencies in the evidence before it, and the hesitation and apparent inability of both parties to answer the Tribunal’s questions at hearing, the Tribunal found the applicant and the sponsor to be evasive and less than truthful witnesses, and the Tribunal does not consider their evidence about their relationship to be credible.”
The Tribunal set out thereafter:-
“66. When the Tribunal asked the applicant whether he and his wife have ever been to China together he said no. The Tribunal asked him how many times he has been to China since his marriage in 2011 and he stated that he can't remember.
67. The Tribunal asked him when he most recently went to China, and he stated that it was ‘last year’. He stated that he cannot remember what month, but it was maybe the middle of the year. In response to the Tribunal's question of why he went to China last year, he stated that he went for one week and the purpose of the trip was business. He stated that his wife did not accompany him because he was travelling for business. The Tribunal noted that according to his written submissions he had gone to China to visit his parents, and his wife could not accompany him because her mother was sick, and Vivien had to attend school.
68. The applicant responded that this submission was in reference to a different trip to China earlier in 2013, and he now recalled he had been to China twice in 2013. (Departmental movement records contained on the Tribunal file indicate that the applicant was outside Australia between 15 January and 15 February 2013 and again between 15 August and 26 August 2013).
69. The Tribunal queried why, when she was interviewed by the delegate, the sponsor bad stated that the applicant was in Australia, when in fact he was in China at that time. The applicant stated that confusion had arisen because of the way in which he and the sponsor were questioned by the delegate.”
The Tribunal said further:-
“72. The Tribunal notes that the sponsor has never met the applicant’s mother or father despite having been married to him for four years, and despite numerous return trips to China in the course of their marriage.”
The Tribunal concluded that based on the evidence presented, and in light of Tribunal’s credibility concerns in relation to the Applicant and the sponsor, it was not satisfied that the Applicant and sponsor had a commitment to one another as spouses.
The Tribunal was not satisfied that the relationship between the Applicant and sponsor was genuine and continuing. The Tribunal was not satisfied that the couple lived together, or did not live separately and apart on a permanent basis. Therefore, the Applicant and sponsor did not meet the requirements of s.5F(2)(b)-(d) for a married relationship. As a consequence the Applicant could not meet the visa criterion in cl.801.221(2) of the Regulations.
Ground of Application
The Applicant asserts that the Tribunal failed to comply with s.359A of the Act, in that it did not at the hearing (pursuant to s.359AA – see s.359A(3)), or subsequently, give the Applicant clear particulars of “information” which it had received from Ms Le during the hearing of 11 November 2014 and which would be the reason, or part of the reason for affirming the decision under review. Further it did not ensure that the Applicant understood why the information was relevant to the review or invite the Applicant to respond to or comment on the information.
Section 359A of the Act provided:-
“Information and invitation given in writing by Tribunal
(1) Subject to subsections (2) and (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, 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) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
(2) The information and invitation must be given to the applicant:
(a) except where paragraph (b) applies--by one of the methods specified in section 379A; or
(b) if the applicant is in immigration detention--by a method prescribed for the purposes of giving documents to such a person.
(3) The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 359AA.
(4) This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b) that the applicant gave for the purpose of the application for review; or
(ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
(c) that is non-disclosable information.
(5) A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 362B(1F).”
Section 359AA of the Act further provided:-
“Information and invitation given orally by Tribunal while applicant appearing
(1) 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.
(2) A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 362B(1F).”
As submitted by the First Respondent, the Tribunal affirmed the decision of the delegate because of credibility concerns on the evidence before it. The Tribunal found, as was open to it to find, both the Applicant and the sponsor “to be evasive and less than truthful witnesses.” The Tribunal did not consider their evidence about their relationship to be credible. The Tribunal tested the evidence and found it to be unsatisfactory. The Applicant had been earlier put on notice as to credibility issues by the delegate.
It was not in dispute between Counsel that the term ‘information’ under s.359A of the Act does not extend to the Tribunal’s ‘subjective appraisals, thought processes or determinations’. The Tribunal’s credibility concerns, clearly stated in the Decision Record, arose from a number of inconsistencies in the evidence before the Tribunal, both as between the Applicant and his sponsor and within the Applicant’s own account of matters. These inconsistencies led the Tribunal to be not satisfied that the Applicant and his sponsor were in a married relationship because it did not find the evidence provided about the relationship to be credible. Credibility cannot be characterised as ‘information’ for the purposes of s.359A of the Act.
Inconsistences in evidence on concerns regarding credibility mean that s.359A(1) does not apply, as stated in MZPAO v Minister for Immigration and Citizenship [2008] FCA 245, applying the decision of the High Court in SZBYR v Minister of Immigration and Citizenship 235 ALR 609.
The application is dismissed and costs will follow.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Hartnett
Date: 31 August 2016
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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