Gandhi v Minister for Immigration

[2020] FCCA 1290

FEDERAL CIRCUIT COURT OF AUSTRALIA

GANDHI v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 1290

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a temporary partner visa – Tribunal finding that the visa applicant and the sponsor were never in a genuine relationship – whether the Tribunal considered all relevant material and dealt properly with a non-disclosure certificate considered – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), s.375A

Evidence Act 1995 (Cth), s.130

Applicant: ANKUSH GANDHI

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2785 of 2017

Judgment of: Judge Driver

Hearing date: 22 May 2020

Delivered at: Sydney

Delivered on: 22 May 2020

REPRESENTATION

Applicant appeared in person by telephone

Solicitors for the Respondents: Ms Evans of Sparke Helmore Lawyers by telephone

ORDERS

1. The title of the first respondent is amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

2. The application filed on 7 September 2017 is dismissed.

3. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2785 of 2017

ANKUSH GANDHI

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

Background

1. The applicant, Mr Gandhi, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 18 August 2017.  The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant Mr Gandhi a temporary partner visa.

2. Background facts relating to this matter are conveniently set out in the Minister’s outline of submissions filed on 15 May 2020. 

3. Mr Gandhi, a citizen of India, arrived in Australia on 31 May 2012 as the holder of a visitor (Subclass 676) visa.[1] On 28 August 2012, he applied for the visa on the basis of his marriage on 20 August 2012 to an Australian citizen, Ms Ashleigh Roberts (sponsor).[2]

   [1] Court Book (CB) 181

   [2] CB 1-33

4. On 11 July 2016, Mr Gandhi attended an interview before the delegate.[3] At the interview, the delegate invited Mr Ghandi to comment on unfavourable information. That invitation was also sent to his agent in writing.[4] In particular, the delegate informed Mr Ghandi that the Minister’s Department (Department) had received information which indicated, amongst other things, that:

   a)he did not live with the sponsor and did not know where she was;

   b)he had not been able to contact the sponsor for two and a half months; and

   c)the sponsor had a two year old daughter from another relationship.

   [3] CB 182

   [4] CB 153-154

5. On 18 July 2016, Mr Ghandi, through his agent, responded to the invitation claiming to have suffered family violence and provided a statutory declaration in support of that claim.[5]  Amongst other things, Mr Gandhi stated that he had been apart from the sponsor for three months and had been “trying every possible way to reconcile our relationship” but had not received any replies and therefore assumed that their relationship had ended.[6]

   [5] CB 155-165

   [6] CB 161

6. On 21 July 2016, the delegate refused to grant Mr Gandhi the visa on the basis that he did not meet clause 820.211(2)(d)(ii) of Schedule 2 to the Migration Regulations 1994 (Cth) (Migration Regulations), as she was not satisfied that the parties were in a genuine spousal relationship.[7]

   [7] CB 181-185

Tribunal proceedings

1. On 4 June 2016, Mr Gandhi applied to the Tribunal for review of the delegate’s decision.[8] On 31 March 2017, he was invited to attend a hearing scheduled on 19 May 2017,[9] which he attended with his agent.[10]

   [8]  CB 205

   [9]  CB 219-222

   [10] CB 242-244

2. On 9 June 2017, the Tribunal sent Mr Gandhi a request for information.[11] Namely, it requested that he provide submissions or evidence in relation to his claim that he had been the victim of family violence.[12]

   [11] CB 258-260

   [12] CB 259

3. On 21 July 2017, Mr Gandhi responded through his new agent and claimed that he had been unable to continue therapy between September 2016 and 18 July 2017 because he had been overseas and could not get any appointment.[13] He provided a letter from a clinical psychologist, Mr Payal Pamar, which stated that he attended three psychotherapy sessions between July and September 2016.[14] 

   [13] CB 267

   [14] CB 268

4. On 18 August 2017, the Tribunal affirmed the decision under review.[15]

   [15] CB 272-278

Tribunal decision

1. The Tribunal identified that the issue before it was whether Mr Gandhi was the spouse of the sponsor as defined in s.5F of the Migration Act 1958 (Cth) (Migration Act).[16]  It recorded Mr Gandhi’s evidence at the hearing, including that he had told the Tribunal that his relationship with the sponsor had ceased about 15 months earlier and it found there was little evidence that he had made a concerted effort to contact her or reconcile his relationship.[17] The Tribunal also recorded that Mr Gandhi stated that he separated from the sponsor after she gave birth to her daughter, whose biological father was another man.[18]

   [16] CB 273, [7]

   [17] CB 273, [9]

   [18] CB 274, [10]

2. The Tribunal identified that certain information on the Department file was the subject of a non-disclosure certificate issued pursuant to s.375A of the Migration Act (certificate). It recorded that the material the subject of the certificate related to Departmental investigations, found that the material was relevant and placed weight on it. It also found that that the certificate was valid and that the disclosure of the material would be contrary to the public interest as it related to an internal investigation and information relating to third parties.[19] The Tribunal informed Mr Gandhi that it would put information to him the subject of the certificate that it would consider to be a reason or part of the reason for affirming the decision and invited him to make a submission about the validity of the certificate.[20]  Mr Gandhi stated that he already responded to the request on 11 July 2016 and wished to make no other comment.[21]

   [19] CB 274, [12]

   [20] CB 274, [13]-[14]

   [21] CB 274, [14]

3. The material subject of the certificate revealed that the sponsor was in a relationship with a person other than Mr Gandhi, that she had a baby in April 2014 and the sponsor was in a relationship with a third party in July 2013. Mr Gandhi gave evidence that he had separated from the sponsor in July 2014, two to three months after the child was born.[22]

   [22] CB 274, [15]

4. The Tribunal then turned to consider whether Mr Gandhi was the spouse of the sponsor, as required by clause 820.211 and clause 820.221 of Schedule 2 to the Migration Regulations, having regard to the definition of “spouse” in s.5F the Migration Act.[23] It accepted that the parties were validly married, as required by s.5F(2)(a) of the Migration Act.[24]

   [23] CB 275, [16]-[17]

   [24] CB 275, [19]

5. The Tribunal considered Mr Gandhi’s evidence against the matters in regulation.1.15A (3), and had regard to Mr Gandhi’s oral evidence, which it found to be “very vague, inconsistent and lacking in detail”. The Tribunal found that the evidence given by Mr Gandhi was less than truthful and was lacking in credibility.[25] In considering the matters in regulation 1.15A(3):

   a)the Tribunal found that the parties had no joint liabilities or major assets together and there was little evidence of pooling or sharing financial resources or daily expenses;[26]

   b)it noted that Mr Gandhi shared household duties with his brother-in-law and sister, and the sponsor would not cook Indian food. It found that there was very little evidence to satisfy it that the parties had established a joint household;[27]

   c)the Tribunal noted that the parties had no common friends, and found that the statutory declarations provided by Mr Gandhi gave little insight into the history of the parties’ relationship. It considered that the photographs of the parties appeared to have been staged;[28] and

   d)it observed that the parties’ relationship developed quickly, having met in June 2012 and married in August 2012.[29] It noted that the sponsor was in a relationship with a third party from July 2013, of which Mr Gandhi claimed he had not been aware, and found that there was little evidence provided to show he was in a mutually exclusive relationship with the sponsor, or that he believed they were in a long-term relationship.

   [25] CB 275, [20]

   [26] CB 275-276, [21]

   [27] CB 276, [22]

   [28] CB 276, [23]

   [29] CB 276, [24]

6. On the evidence provided, the Tribunal was not satisfied that a spousal relationship ever existed between the parties.[30] Having so found, it did not go on to consider Mr Gandhi’s claim of family violence.[31]

   [30] CB 276-277, [25]; [27]

   [31] CB 277, [26]

7. In light of the above, the Tribunal was not satisfied that the parties were in a genuine spousal relationship at the time of the application, nor at the time of its decision.[32] Accordingly, it found that Mr Gandhi did not satisfy clause 820.211(2) and affirmed the decision under review.[33]

   [32] CB 277, [29]

   [33] CB 277, [29]-[32]

8. These proceedings began with a show cause application filed on 7 September 2017.  Mr Gandhi continues to rely upon that application.  The sole ground in it is reproduced at [19] of the Minister’s submissions, and I incorporate the ground in this judgment.

9. The sole ground of the application filed on 7 September 2017 is as follows:

   1. The Tribunal failed to exercise its jurisdiction by failing to consider all aspects of my claims.

10. I have before me as evidence the court book, filed on 26 October 2017.  I also received an affidavit by Ms Mia Donald, made on 15 May 2020, to which is annexed a bundle of documents, including a departmental email, which has been partly redacted and a bundle of what appears to be screenshots of social media posts by the sponsor.

11. Only the Minister filed pre-hearing written submissions in this matter.  I invited oral submissions this afternoon from Mr Gandhi.  He told me that he knew things went wrong in his relationship and has spent 7 to 8 years dealing with it.  He regards himself as a victim and maintains that he tried his best to maintain the relationship.  Those submissions, in my view, go only to the merits of the Tribunal decision, which are beyond the scope of this proceeding.

12. The ground of review advanced by Mr Gandhi is devoid of particulars and is meaningless in the absence of particulars.  As is noted by the Minister in his written submissions, the Tribunal is required to assess all claims actually made by an applicant as well as those which, although not expressly made, squarely arise on or are apparent on the face of material before the Tribunal.

13. Mr Gandhi, having provided no particulars to identify the claims he contends were not considered by the Tribunal, cannot succeed on that ground.  Nor is any omission apparent from the material before the Court.  In my view, based on the available material, the Tribunal did consider everything put before it, and no error is indicated.

14. Neither, in my view, is any other error of process going to jurisdiction established in this case.  The only apparent issue concerns a non-disclosure certificate.  The Minister’s submissions deal with that. 

15. Whilst not a ground in the application, the Departmental file for this matter contains a non-disclosure certificate issued purportedly pursuant to s.375A of the Migration Act on 17 August 2016.[34]  The affidavit of Ms Donald made on 15 May 2020 annexes the documents referred to in the certificate. Some redactions are made to the documents the subject of the certificate that have been served on Mr Gandhi on the basis that disclosure of those portions would prejudice the prevention, investigation or prosecution of an offence.[35] The Minister claims public interest immunity in respect of those redacted portions.

    [34] CB 211

    [35] Evidence Act 1995 (Cth), s.130(4)(c) (Evidence Act)

16. As set out above, the Tribunal treated the certificate as valid.[36] However, the Minister considers the certificate to be invalid in circumstances where (a) it does not clearly identify the file over which it was issued and (b) more significantly, the basis upon which it was issued does not provide a reason capable of grounding a claim for public interest immunity from disclosure at common law or under s.130 of the Evidence Act.

    [36] CB 274, [12]

17. The question then becomes how the Tribunal acted on the certificate and, if it relied on the certificate, whether that reliance was material to the outcome. As noted above, the Tribunal indicated at [12] of its reasons that it considered the material the subject of the certificate to be relevant and placed weight on it. It also indicated that it discussed the certificate with Mr Gandhi during the hearing and that it gave him an opportunity to comment on its validity.[37] The Tribunal further recorded that it discussed with Mr Gandhi the information it covered, to the extent it would be a reason or part of the reason for affirming the delegate’s decision.[38] That is, the Tribunal (despite proceeding on the basis that the certificate was valid) decided to disclose a matter contained in the material, or the information, to Mr Gandhi. It is not apparent that the Tribunal took the information into account otherwise than is recorded in its decision at [15].

    [37] CB 274, [14]

    [38] CB 274, [13]-[15]

18. In light of the above, the Minister submits that no jurisdictional error arises by virtue of the Tribunal’s treatment of the certificate.  Whilst the issue of an invalid certificate constitutes, without more, an unauthorised act in breach of a limitation within the statutory procedures conditioning the Tribunal’s duty to conduct a review, the determination of whether a certificate has caused the Tribunal to commit jurisdictional error depends upon “how the Tribunal in fact acted in relation to the notified document or information”. 

19. When the Tribunal asked Mr Gandhi if he wished to comment on or respond to the certificate, he indicated that he already responded to a request made by the Department on 11 July 2016 about the information covered by the certificate and wished to make no other comment.[39] That is, Mr Gandhi was already aware of the substance of the information contained in the material the subject of the certificate, namely that the sponsor had a child born in April 2014 and the sponsor was in a relationship with a third party in July 2013. This information was again put to Mr Gandhi by the Tribunal at the hearing, he gave evidence consistent with this information,[40] and he did not avail himself of the opportunity to give further evidence about these matters. Therefore, it could not be said that, had the Tribunal ignored the certificate, it would realistically have resulted in a different decision.

    [39] CB 274, [14]

    [40] CB 273, [10]

20. I agree with those submissions, subject to the following observations.

21. As the Minister notes, the Tribunal treated the certificate as valid, while the Minister submits that the certificate is invalid.  Nevertheless, as appears at [7] of Ms Donald’s affidavit, the Minister makes a claim of public interest immunity over part of the first document purportedly covered by the certificate, which indicates that the certificate might have been valid in part.  I have not considered it necessary or possible to deal with the Minister’s claim of public interest immunity, as an unredacted copy of the document has not been made available, notwithstanding what is put at [8] and [9] of Ms Donald’s affidavit. 

22. The Minister’s solicitor confirms that the affidavit, together with Annexure MD1, has been provided both to the Court and to the sponsor.  Those documents are a substantial bundle of social media posts by the sponsor.  The Tribunal had regard to that information which certainly counted in favour of the Tribunal’s conclusion that the relationship between Mr Gandhi and the sponsor was not a genuine one.

23. Mr Gandhi was put on notice of that information before the delegate and was given a further opportunity before the Tribunal to comment on the information.  There was, in my view, no procedural unfairness in the manner in which the Tribunal dealt with that information.

24. To the extent that the Tribunal erred in treating the certificate as valid, the error does not, in my view, go to jurisdiction. 

Conclusion

1. I conclude that Mr Gandhi is unable to establish that the Tribunal decision is affected by any jurisdictional error.  The decision is therefore a privative clause decision, and the application must be dismissed. 

2. I will so order. 

3. In consequence of the dismissal of the application, the Minister seeks an order for costs in the fixed sum of $5,000.  Mr Gandhi enquired about time to pay but did not oppose the making of a costs order. 

4. I will so order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,000.

I certify that the preceding thirty eight (38) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date: 28 May 2020