Garnessty v Minister for Immigration

[2019] FCCA 415

FEDERAL CIRCUIT COURT OF AUSTRALIA

GARNESSTY v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 415

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of partner visas – Tribunal finding that the relationship was not genuine – whether the Tribunal misunderstood or misrepresented a finding by the delegate so as to give rise to an obligation of disclosure considered – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.5F, 359A, 359AA, 360

Migration Regulations 1994 (Cth)

Applicant: SHARNBARD GARNESSTY

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2067 of 2017

Judgment of: Judge Driver

Hearing date: 22 February 2019

Delivered at: Sydney

Delivered on: 14 March 2019

REPRESENTATION

Counsel for the Applicant: Mr L Karp

Solicitors for the Applicant: Vinh Duong & Associates

Solicitors for the Respondents: Ms S Burnett of Clayton Utz

ORDERS

1. The application as amended on 21 February 2019 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2067 of 2017

SHARNBARD GARNESSTY

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

1. The applicant, Mr Garnessty, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 29 May 2017.  The Tribunal affirmed decisions of a delegate of the Minister (delegate) not to grant to the applicants partner visas.  There were three applicants before the Tribunal in addition to Mr Garnessty but only Mr Garnessty is an applicant before the Court.

2. The following statement of background facts is derived from the submissions of the parties.

3. On 3 June 2015, the visa applicant, Ms Thi Tuong Vy Hoang, a citizen of Vietnam, applied for the partner visa on the basis of her relationship with Mr Garnessty, her sponsor.[1]

   [1] Court Book (CB) 1-71

4. On 23 June 2016, the delegate refused to grant the partner visas.[2]  Ms Hoang, her two children and Mr Garnessty (collectively, the applicants) applied to the Tribunal for review of the delegate's decision.  On 29 May 2017, the Tribunal affirmed the delegate's decision.[3]

   [2] CB 140-150

   [3] CB 282-289

5. On 30 June 2017, Mr Garnessty commenced the current proceedings.

Relevant law

1. At the relevant time, the criteria for the partner visa were set out in clause 309 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations). Clause 309.211(2) required the visa applicant to be the spouse or de facto partner of the sponsoring partner.

2. The term "spouse" is defined in s.5F of the Migration Act 1958 (Cth) (Migration Act). At the time of decision, relevantly, s.5F(2) provided that a person is the spouse of another person if:[4]

   [4] section 5F has since been amended to provide for same-sex marriage

   (a)     they are married to each other under a marriage that is valid for the purposes of this Act; and

   (b)     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 they:

   (i) live together; or

   (ii)     do not live separately and apart on a permanent basis.

3. In determining whether a person is the spouse of another person, Regulation 1.15A(3) provides that the Minister must consider all of the circumstances of the relationship, including the financial aspects of the relationship, nature of the household, social aspects of the relationship and nature of the persons’ commitment to each other.

Tribunal decision

1. The Tribunal identified that the issue in the present case was whether Ms Hoang was the spouse of Mr Garnessty within the meaning of the Migration Act and above regulatory criteria.[5]

   [5] Tribunal's Decision Record (DR) [17]

2. The Tribunal was satisfied, on the evidence before it, that the parties were married to each other as required by s.5F(2)(a).[6] However, the Tribunal was not satisfied that applicants' circumstances supported a finding that they had a genuine commitment to a shared life as husband and wife to the exclusion of all others, that their relationship was genuine and continuing, or that they did not live separately or apart on a permanent basis.[7]

   [6] DR [20]

   [7] DR [38]

3. In coming to this conclusion, the Tribunal considered the matters set out in regulation 1.15A(3) of the Regulations and found:

   a)the financial aspects of the applicants' relationship did not indicate the applicants had a mutual commitment to a shared life together because their evidence appeared "overly rehearsed", they lacked any genuine insight or understanding of their respective financial situations and had no joint assets or a joint bank account;[8]

   b)the nature of the applicants' household did not demonstrate that they were in a genuine spousal relationship, given that they shared no meaningful insights into their lives together. The Tribunal was not persuaded that Mr Garnessty spent all of his time in Vietnam with Ms Hoang or that he had any particular plan to assist Ms Hoang to raise her two teenage children in Australia;[9]

   c)the applicants may have attended some social gatherings together, based on the photographs provided by the applicants;[10] and

   d)Ms Hoang’s account of her relationship with her first husband (being her sister's de facto partner)  lacked "credibility, plausibility and relevant detail".  This led the Tribunal to conclude that Ms Hoang contrived her previous marriage in order to migrate to Australia, and when that failed, she similarly contrived her current marriage to obtain a migration outcome and nothing more.[11]

   [8] DR [22] - [26]

   [9] DR [27] - [31]

   [10] DR [31] - [33]

   [11] DR [34]-[37]

4. Accordingly, the Tribunal was not satisfied that the applicants were in a spousal relationship for the purposes of the Migration Act,[12] and therefore affirmed the delegate's decision.

   [12] DR [39]

The present proceedings

1. These proceedings began with a show cause application filed on 30 June 2017.  Mr Garnessty now relies upon an amended application filed on 21 February 2019.  There is one ground in that application:

   1. The Tribunal acted in breach of s.359A of the Migration Act.

   Particulars

   (a)     The Tribunal failed to inform the applicant that it had formed the view, “like the delegate, that the visa applicant had contrived a marriage” with her sister’s de facto, in a manner required by that section.

2. I granted leave to Mr Garnessty to rely upon that amended application.

3. In addition to the court book filed on 17 August 2017, I have before me as evidence the affidavit of Renee Quinn made on 21 September 2017, to which is annexed the transcript of the Tribunal hearing conducted on 28 April 2017. 

Consideration

1. The issue raised by the application as amended is a confined one.  The Tribunal stated at [37] of its reasons:[13]

   When questioned about this matter, the visa applicant claimed that she believed that her first husband was really in love with her.  The visa applicant’s account of this matter, including the circumstances surrounding her marriage to a man who she knew was her sister’s de facto husband, lacks credibility, plausibility and relevant detail.  Equally, her explanations about why she did not declare this marriage and sponsorship in her application for the visa subject to this review, lack credibility.  The Tribunal is not satisfied that the visa applicant has been truthful about this matter to either the Tribunal or the review applicant.  The Tribunal has formed a view, like the delegate, that the visa applicant contrived a marriage with her sister’s de-facto in order to facilitate her migration to Australia.  The Tribunal has formed a view that her current marriage is similarly contrived to obtain a migration outcome and nothing more.

   (emphasis added)

   [13] CB 287

2. Mr Garnessty submits that the highlighted words in the above paragraph disclose a misunderstanding and misrepresentation of the delegate’s decision.

3. Relevantly, in his decision reproduced at CB 147, the delegate stated:

   The applicant provided evidence that she has three siblings permanently living in Australia.  The applicant has attempted to apply for a partner visa to Australia in the past and that application was refused as the applicant married her sister’s de facto partner to facilitate her migration to Australia.  I find that the applicant [has] a strong incentive to attempt to migrate to Australia to be reunited with her siblings.  I am not satisfied that the applicant has applied for this partner visa based on a genuine relationship with the sponsor and find that the circumstances indicate it is being used as a pathway to be granted a visa in order to be reunited with her family.

4. Mr Garnessty submits as follows:

   a)there was no “finding” by the delegate that Ms Hoang’s marriage had been contrived.  There was, at CB 147, a statement that a previous partner visa was refused because “… the [visa] applicant married her sister’s de facto partner to facilitate her migration to Australia”;

   b)Ms Hoang had a strong incentive to attempt to migrate to Australia to be united with her siblings;

   c)the delegate was not satisfied that Ms Hoang had applied for the partner visa based on a genuine relationship with the sponsor; and

   d)the delegate found that the circumstances indicated that the marriage was being used as a pathway to migration so to be reunited with her family.

5. Thus, contrary to the Tribunal’s statement at [37], there is said to have been no finding of contrivance by the delegate. There were rather findings by which the delegate was not satisfied that the marriage was genuine.

6. Mr Garnessty submits that in those circumstances the delegate’s alleged finding of contrivance should have been disclosed to him and Ms Hoang pursuant to s.359A, read with s.359AA of the Migration Act. The alleged finding of contrivance by the delegate is said to have been “information” about Ms Hoang which undermined her case, by being corroborative of the Tribunal’s opinion.

7. The Minister makes several responses to these propositions.  First, the Minister notes that the delegate’s reasons were provided by Mr Garnessty and Ms Hoang to the Tribunal so that, prima facie, s.359A(4)(b) applies. Secondly, the Minister submits that, to the extent that there is a difference between what the delegate stated and what was attributed to the delegate by the Tribunal, this was not “information” for the purposes of s.359A. Neither was the relevant paragraph of the delegate’s statement of reasons evidence or information but rather a matter or opinion or conclusion.

8. I accept that there may be “information” in a delegate’s statement of reasons for the purposes of s.359A. It is, however, hard to see how the delegate’s reasoning process could be “information”, especially as the Tribunal’s obligation is to conduct a review of the delegate’s decision, not to adopt the delegate’s reasoning process.

9. Secondly, the difference between the delegate’s reasons, and what is attributed to the delegate by the Tribunal, is a subtle one, if there is a difference at all.  The delegate found that Ms Hoang had, in effect, contrived a personal relationship previously as she had married her sister’s de facto partner to facilitate her migration to Australia.  The delegate found that the presently relevant relationship was not a genuine one.  It is but a very small step from there to find that the current marriage, like the earlier marriage, was not genuine and was contrived. 

10. Thirdly, the Tribunal at [37] stated that it had formed a view “like the delegate”, meaning that the Tribunal was of the same or similar mind as the delegate on the point in issue. The word “like” is given 21 different definitions by the Macquarie online dictionary. Definition 8 is “having the same or similar qualities or characteristics”. Definition 9 is “corresponding or agreeing in general or in some noticeable respect; similar; analogous”. The Tribunal was simply saying that it agreed with the delegate. That the Tribunal may have gone a step further than the delegate is debatable. The Tribunal’s opinion about what the delegate had found is not “information” for the purposes of s.359A. Even if the Tribunal were wrong, in the manner of fine degree as postulated by Mr Garnessty, the relevant opinion is in my view that of the Tribunal, not of the delegate.

11. In particular circumstances, it may be an error to misconstrue or misrepresent findings made by a delegate. That would, however, in my view, be a constructive failure of the review function, rather than a breach of s.359A. Further, it may be a breach of s.360 in a particular case to depart from the reasoning of a delegate in circumstances that give rise to a new issue of which a review applicant is not on notice. This may be so even where the Tribunal is not aware of the departure because of a misunderstanding of the delegate’s decision. Again, however, that does not involve a breach of s.359A. In these hypothetical circumstances, the error is in the reasoning of the Tribunal. The decision of the delegate says what it says. A misunderstanding by the Tribunal of what the delegate has said or found is not “information” for the purposes of s.359A.

Conclusion

1. Mr Garnessty has failed to establish that the decision of the Tribunal is affected by jurisdictional error.  The decision is therefore a privative clause decision and the application must be dismissed.  I will so order.

2. I will hear the parties as to costs.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date: 14 March 2019