Goraya v Minister for Immigration
[2018] FCCA 2017
•26 July 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GORAYA v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2017 |
| Catchwords: MIGRATION – Application for judicial review – Partner (Residence) (Class BS) Visa – whether witnesses had capacity to give evidence – whether the Tribunal failed to make an obvious enquiry about a critical fact – whether the Tribunal err in concluding a marriage lacking romantic love or affection was not a genuine relationship under regs. 1.09A and 1.15A of the Migration Regulations 1994 – whether the Tribunal made an illogical or irrational conclusion – witnesses had sufficient capacity – the Tribunal did not err in failing to make enquiries – the Tribunal did not err in construing regs. 1.09A and 1.15A of the Migration Regulations 1994 – the Tribunal did not make irrational or illogical conclusions – application dismissed. |
| Legislation: Migration Act 1958 (Cth), s 476 |
| Cases cited: He v Minister for Immigration and Border Protection [2017] FCAFC 206 Minister for Immigration and Citizenship v Le [2007] FCA 1318 Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 NAMJ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 983 |
| Applicant: | DALBIR SINGH GORAYA |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 490 of 2017 |
| Judgment of: | Judge McNab |
| Hearing date: | 13 February 2018 |
| Date of Last Submission: | 28 February 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 26 July 2018 |
REPRESENTATION
| The Applicant in person |
| Solicitors for the Applicant: | Spectre Group Law |
| Solicitors for the Respondents: | Mills Oakley |
ORDERS
The application filed 10 March 2017 be dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $5,400.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 490 of 2017
| DALBIR SINGH GORAYA |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
As Corrected
Introduction
By way of an application filed 10 March 2017 the Applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’), dated 10 February 2017. The decision of the Tribunal affirmed the decision of a delegate of the First Respondent dated
7 July 2015 in respect of a refusal to grant the Applicant a Partner (Residence) (Class BS) Visa (‘Visa’). The Tribunal found that the Applicant and his Sponsor were not in a spousal relationship and refused a grant of a Visa for this reason.
The Applicant relies on four grounds of review, which are extracted from his originating application and replicated exactly below:
The Tribunal denied the Applicant procedural fairness and/or made an error of law because it relied on the evidence of key witnesses in the case who did not possess the requisite capacity to participate in the hearing before the Tribunal.
Particulars
a. The Tribunal’s decision relied heavily on findings of credibility relating to the evidence given by the Sponsor and the Sponsor's mother.
b. There was evidence before the Tribunal as to the mental state of the Sponsor and the Sponsor's mother, which would have suggested that they were not in a state to meaningfully participate in the hearing.
c. The Tribunal engaged in a perfunctory examination of the mental state of the Sponsor and the Sponsor's mother, stating (at [8]) that it “closely observed the Sponsor throughout the hearing” but omitting to refer to what formed the basis of its conclusion that “the sponsor both understood the proceeding before the Tribunal and presented in a fit state to give evidence".
d. The Applicant was not afforded procedural fairness, because the ill health of key witnesses (including the Sponsor) meant that he did not obtain a real and meaningful hearing - Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126; (2003) 128 FCR 533 and MZAQB & Ors v Minister for Immigration & Anor [2017] FCCA 161.
2. The Tribunal failed to make an obvious inquiry about a material fact, the existence of which was easily ascertained.
Particulars
a. The Tribunal took issue with the Applicant's lack of photographic evidence of their relationship, and found (at [45]) it “incredulous that the applicant and sponsor would not be able to produce more photographs of themselves together as a couple”. The Tribunal failed to seek further information from the Applicant to allow them to address its concern.
b. The Tribunal (at [57]) found that the Applicant did not present any meaningful future plans or aspirations relation to the long term care and support of the Sponsor's child. The Tribunal failed to seek further information from the Applicant to allow them to address its concern.
c. The Tribunal would easily have been able to elicit this information from the Applicant by asking for further information from him. The Tribunal's failure to make this inquiry constitutes jurisdictional error - Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 at [65].
3. The Tribunal misapplied and misconstrued the law by erroneously considering it to be a requirement for a married relationship that it be characterised by romantic love. This misapplication of the law rendered its decision manifestly unreasonable.
Particulars
a. The Tribunal found that the Applicant did not meet the requirements of regulation 1.15A(3) of the Migration Regulations 1994 (Cth), due in part to its assessment (at [63]) that the relationship lacks love and affection.
b. The Tribunal 's reasons indicate that it erroneously concluded that a married relationship which did not include love and affection was not and could not be a married relationship within r.1.15A(3) and s.5F of the Migration Act 1958 (Cth) – Minister for Immigration and Border Protection v Angkawijaya [2016] FCAFC 5.
4. The Tribunal decision was illogical, irrational or otherwise unreasonable.
Particulars
a. The Tribunal's finding (at [41]) that the evidence did not provide any insight into the nature of the relationship was illogical, irrational or otherwise unreasonable in circumstances the Tribunal accepted that the Applicant assisted the Sponsor with the care and support of her son.
b. The Tribunal 's finding (at [33]) that it attached limited weight the financial aspects of the relationship was illogical, irrational or otherwise unreasonable in circumstances where the Tribunal accepted that the Applicant and Sponsor shared day to day expenses.
Background
The applicant is a male citizen of India who made a combined application for a Partner (Temporary) (Subclass 820) visa and a Partner (Residence) (Subclass 801) visa on 27 August 2012, on the basis of his marriage to an Australian citizen.[1]
[1] Court Book 1 - 33
On 6 January 2014, the Applicant was granted a Partner (Temporary) (Subclass 820) visa.[2]
[2] Ibid 90 – 94.
On 11 September 2014, the Applicant provided material to the Department in support of the permanent Partner visa application.[3]
[3] Ibid 99 – 178.
On 18 February 2015, the Department conducted a site visit with the Applicant's family at the Applicant's home village in India. The Department met with a number of individuals including the village head, neighbours and the Applicant’s family. These individuals revealed that they were not aware of the Applicant’s relationship with the Sponsor and gave evidence that the Applicant was single. The Departmental officer made a finding that the Applicant was not in a genuine relationship with the Sponsor.[4]
[4] Ibid 181 – 186.
On 17 April 2015, the Department invited the Applicant to comment on the adverse evidence obtained from the site visit.[5]
[5] Ibid 187 – 203.
On 23 April 2015, the Applicant responded that his parents would not approve of his relationship and that his family were in denial about his marriage.[6] The Applicant provided further photographs of the Applicant and the Sponsor with his response.[7]
[6] Ibid 204 – 205.
[7] Ibid 206 – 211.
On 4 May 2015, the Department issued a further invitation to the Applicant to comment on adverse evidence obtained during telephone interviews the delegate conducted with the applicant's aunt and uncle.[8]
[8] Ibid 217 – 221.
On 8 May 2015, the Applicant responded that his aunt and uncle often forgot the Sponsor's name and they saw each other only once or twice a year.[9] The Applicant also provided more photographs of the applicant and sponsor along with other supporting documentation.[10]
[9] Ibid 223 – 224.
[10] Ibid 224 – 241.
On 7 July 2015, the delegate decided to refuse the application for the Visa as the delegate was not satisfied the Applicant was the genuine spouse or de facto partner of the sponsor.[11]
[11] Ibid 242 – 249.
On 24 July 2015, the Applicant applied for review of the delegate's decision. The applicant provided the Tribunal with copies of the notification letter, delegate's decision, identity documents and medical records demonstrating that the Applicant and sponsor had undergone fertility testing.[12]
[12] Ibid 250 – 266.
On 6 October 2016, the Tribunal invited the Applicant to attend a hearing before it on 14 December 2016.[13] The hearing was rescheduled to 10 January 2017.[14]
[13] Ibid 299 – 302.
[14] Ibid 307 – 310.
On 21 December 2016, the Tribunal invited the Applicant to provide further supporting materials for the claim that he and his sponsor were in a spouse or de facto relationship.[15] On 4 January 2017 further material was provided by the Applicant’s representative.[16]
[15] Ibid 315 – 319.
[16] Ibid 322 – 357.
On 10 January 2017, the Applicant and his representative, with the Sponsor, attended the hearing before the Tribunal. The Tribunal received evidence via telephone from the Applicant's uncle and the Sponsor's mother during the hearing.
On 14 February 2017, the Tribunal affirmed the decision of the delegate not to grant the Applicant a Visa.[17] The Tribunal cited the financial aspects of the relationship, the social aspects of the relationship, the nature of the commitment to each other and the credibility of the Applicant as the determinative factors in the decision.[18]
[17] Ibid 378 – 390.
[18] Ibid 383 – 389.
Capacity of witnesses
The Applicant has submitted as the first ground of review that the Tribunal denied him procedural fairness or made an error of law in relying on the evidence of the Sponsor and the Sponsor’s mother,
Ms Hennessy. The Applicant submits that they were witnesses who did not possess the requisite capacity to participate in the hearing before the Tribunal.
There was evidence before the Tribunal that the Sponsor suffered from depression, anxiety and obesity[19] and Ms Hennessy also suffered from medical issues.[20] In the record of decision, the Tribunal identified that they made enquiries of the Sponsor in relation to her medical issues and whether her capacity to provide evidence would be compromised by these issues.[21] The Tribunal also considered medical documentation provided and stated that it ‘closely observed the sponsor throughout the hearing but did not consider that she was hindered in her ability to give evidence’.[22] The Applicant submits that this does not sufficiently address how the Tribunal came to the conclusion that the Sponsor and Ms Hennessey had sufficient capacity to give evidence.
[19] Ibid 381 [8]
[20] Ibid 385 [49].
[21] Ibid 381 [8]
[22] Ibid.
It is not incumbent upon the Tribunal to go beyond making inquiries into the health condition of the witnesses and considering their capacity based on the responses to those enquiries, as well as its own observations. As observed by Gleeson CJ in Minister for Immigration and Multicultural and Indigenous Affairs v SGLB :
[m]any people who appear before administrative tribunals, and many litigants in courts…suffer from psychological disorders or psychiatric illness. That may affect their capacity to do justice to their case. Fairness does not ordinarily require the court or tribunal to undertake a psychiatric or psychological assessment to investigate the extent to which the person in question may be at a disadvantage; and ordinarily it would be impossible to tell.[23]
[23] [2004] HCA 32 [19]
The Tribunal expressly considered all the evidence put forward for the Sponsor and Ms Hennessy’s medical conditions. It considered both witnesses at all times in a fit state to provide evidence after making enquiries and the Tribunal is entitled to make this determination: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB.[24]
[24] Ibid.
I accept the First Respondent’s submissions that there is nothing within the reasons of the Tribunal or the evidence presented by the witnesses to indicate that they did not have sufficient capacity to participate in the hearing. The Applicant bears the onus of establishing that the Sponsor and Ms Hennessy did not have sufficient capacity.[25] The Applicant has not discharged this burden; there is nothing before the Court or seemingly before the Tribunal to establish that the Sponsor and/or Ms Hennessy was unfit to give evidence. Accordingly, this ground must fail.
[25] NAMJ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 983 [69].
Failure to make an obvious enquiry about a critical fact
The Applicant’s second ground of review is that the Tribunal has fallen into jurisdictional error by failing to make an obvious enquiry about a critical fact that was easily ascertainable. This claim relates to the Tribunal failing to ask the Applicant to provide further photos of the couple together and give further information about their future plans.
The circumstances in which a Tribunal will be obliged to make an inquiry will be ‘rare or exceptional’.[26] This is because the Tribunal has no general duty to make inquiries; only when certain circumstances are present will a duty be seen to arise.[27]
[26] Minister for Immigration and Citizenship v Le [2007] FCA 1318 [60].
[27] Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 [25]
The threshold considerations for whether a duty arises are firstly that the fact is critical to the decision, and secondly that it is easily ascertainable upon enquiry. While additional photographs may have been easily procured, photographs of the couple together were not a fact critical to the decision. The Tribunal examined the photographs of the couple presented to it in the context of determining the social aspects of the relationship.[28] While it considered the lack of photographs of the Applicant and Sponsor socialising as a couple as adverse to the claims of the Applicant, this was in the broader context of other negative findings on social aspects of the relationship. The Tribunal was also concerned about the discussion with the Applicant’s uncle about the relationship,[29] the lack of representation of family and friends at the wedding,[30] and a lack of future plans.[31] The Tribunal found that there were a limited number of photographs of the couple with friends and family. This led to the Tribunal to make comment that this was ‘concerning’, but the lack of social photographs were one of a number of adverse findings. This finding, taken on its own, could not be said to be critical to the determination of the claim.
[28] Court Book 385 [42] – [45].
[29] Ibid 385- 386 [47]
[30] Ibid 386 [48], [52] – [54].
[31] Ibid [57].
The Applicant also submitted that the Tribunal had made an adverse finding that he did not present meaningful plans for the future and his comments for future plans regarding the Sponsor’s child were vague. The Applicant submitted that the Tribunal did not seek further information to address this concern and this also constitutes a failure to make an obvious enquiry about a critical fact.
For similar reasons to those given regarding the number of photographs of the Applicant and Sponsor together, the failure to make enquiries about future plans could not be said to be relate to a critical fact in issue as this was not the only basis on which the Tribunal made their decision.
This ground is not made out.
Romantic marriage
The Applicant submitted that the Tribunal erred in finding that the relationship between the Applicant and the Sponsor did not meet the requirements of s 1.15A(3) of the Migration Regulations 1994 (Cth) (‘the Regulations’) ‘due in part to its assessment…that the relationship lacks love and affection’.[32] The Applicant asserted that the Tribunal had made an error in characterising romantic love as a requirement of a valid ‘married relationship’ under reg 1.15A(3) of the Regulations.
[32] Applicant’s originating application.
At [63] of its decision, the Tribunal refers to a mandatory consideration under reg 1.15A(3) of the Regulations, 1.15A(3)(d)(iii). This requires an examination of ‘the degree of companionship and emotional support that the persons draw from each other’.[33]
[33] Migration Regulations 1994 (Cth) reg. 1.15A(3)(d)(iii).
The Applicant sought to assert this paragraph shows that the Tribunal is erroneously fixated on affection and love as a consideration under
reg 1.15A(3), relying on Minister for Immigration and Border Protection v Angkawijaya[34](‘Angkawijaya’).That case made a number of critical observations regarding the spousal criteria under s. 5F of the Migration Act 1958 (Cth) as well as the parallel regulations in
regs 1.09A and 1.15A of the Regulations.
[34] [2016] FCAFC 5.
The list of considerations under reg 1.15A(3) is not exhaustive. This means that the Tribunal is entitled to have regard to all the surrounding circumstances in making an assessment, including factors such as the love and affection demonstrated between a couple, though this alone cannot determine a claim: Angkawijaya[35]
[35] Ibid [50] - [52].
The decision of the Tribunal in Angkawijaya can be distinguished from the decision of the Tribunal in this case. The issue that concerned the Court in Angkawijaya was that the Tribunal’s reasons revealed a significant concern with the romantic attachment between the parties. This was evident by repeated references to the subject throughout the Tribunal’s reasons and it was clear, as a matter of construction, that this formed the basis of the decision.[36] However, in this case the reference to an apparent absence of romantic love does not form the basis of the decision, on consideration of the reasons as a whole. The topic of the nature of the relationship between the Applicant and the Sponsor is briefly examined at [63]. It cannot be characterised as determinative, given the lack of weight placed on it as a factor as compared with a range of other considerations such as financial arrangements,[37] social recognition of the relationship[38] and the nature of the commitment to each other.[39] Another element that was significantly adverse to the Applicant was the evidence obtained by the Department during the site visit to the Applicant’s home village. The Tribunal accepted the evidence given by the Department that the Applicant’s mother and sister stated he was single and they were unaware of his relationship with Sponsor. In this case there are a number of factors that are given more weight than romantic attachment and the finding that the Applicant and Sponsor are not in a genuine marriage relationship under reg 1.15A of the Regulations was open to the Tribunal.
[36] Ibid [65] – [66].
[37] Court Book 383 – 384 [25] – [33].
[38] Ibid 385 – 386 [42] – [58].
[39] Ibid 386 – 389 [59] – [72].
Whilst not raised as a ground of review, the Tribunal gave proper consideration to the matters that it was required to have regard to in determining whether the Applicant and Sponsor were in a de facto relationship. The Tribunal is required to make findings to each Roman numeral criteria listed under reg 1.15A(3) of the Regulations: He v Minister for Immigration and Border Protection [2017] FCAFC 206 [76]. A reading of the decision as a whole demonstrates that the Tribunal has made findings in relation to all required considerations listed under reg 1.15A of the Regulations.
For the reasons given above, I find that this ground has not been made out.
Irrationality or illogicality
The Applicant submits the finding of the Tribunal that the Applicant had assisted the Sponsor in the care of her son and that there was some sharing of day to day expenses rendered the conclusion that the Applicant and Sponsor were not in a genuine relationship illogical.
In my view it was open for the Tribunal to make the finding that the evidence established that the Applicant and Sponsor shared an address, but that this did not establish a spousal relationship.[40] The sharing of expenses and the assistance with the care of the Sponsor’s son by the Applicant are characteristics indicative of a close co-habitant relationship, but not necessarily that of a spousal relationship. The Tribunal was entitled to make this finding on the evidence before it; it does not give rise to jurisdictional error because of illogicality or irrationality. The decision is not one that no reasonable decision maker could have come to in the circumstances: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 [130] per Crennan and Bell JJ.
[40] Ibid 385 [40] – [41].
Conclusion
For the aforementioned reasons, the application is dismissed.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge McNab
Date: 30 July 2018
Corrections (30 July 2018)
Order 2 was amended from “The Applicant pay the costs of the First Respondent fixed in the sum of $5,000” to “The Applicant pay the costs of the First Respondent fixed in the sum of $5,400”.
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