Gukhool v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2022] FedCFamC2G 27

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Gukhool v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 27

File number:	MLG 1463 of 2017
Judgment of:	JUDGE LADHAMS
Date of judgment:	27 January 2022
Catchwords:	MIGRATION – Application for judicial review of Administrative Appeals Tribunal decision – refusal to grant Partner (Temporary) (Class UK) visa – whether Tribunal properly applied r 1.15A of the Migration Regulations 1994 (Cth) – whether Tribunal properly assessed spousal relationship in accordance with s 5F of the Migration Act 1958 (Cth) – whether it was open to Tribunal to prefer the sponsor’s adverse evidence to applicant’s evidence – Tribunal’s consideration of the sponsor’s mental health issues on his ability to give evidence – no jurisdictional error – application dismissed.
Legislation:	Migration Act 1958 (Cth), ss.5F, 359AA, 359A, 476, 477(1) Migration Regulations1994 (Cth), reg.1.15A, Schedule 2 cll 820.211, 820.221
Cases cited:	He v Minister for Immigration and Border Protection (2017) 255 FCR 41; [2017] FCAFC 206 Lazarus Estates Ltd v Beasley [1956] 1 QB 702 Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 Minister for Immigration and Citizenship v Applicant A125 of 2003 (2007) 163 FCR 285; [2007] FCAFC 162 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189; [2007] HCA 35
Division:	Division 2 General Federal Law
Number of paragraphs:	73
Date of hearing:	9 December 2021
Place:	Perth
Applicant:	In person
Counsel for the First Respondent:	Mr J Barrington
Second Respondent:	Submitting appearance, save as to costs
Solicitor for the Respondents:	Mills Oakley Lawyers

ORDERS

MLG 1463 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

DANWANTEE GUKHOOL

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE LADHAMS
DATE OF ORDER:	27 JANUARY 2022

THE COURT ORDERS THAT:

1.The application filed on 7 July 2017 is dismissed.

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 LADHAMS:

INTRODUCTION

1. Before the Court is an application filed on 7 July 2017 under s 476 of the Migration Act 1958 (Cth) (Migration Act). The applicant seeks judicial review of a decision made by the Administrative Appeals Tribunal (Tribunal) on 8 June 2017. The Tribunal affirmed an earlier decision made by a delegate of the Minister not to grant the applicant a Partner (Temporary) (Class UK) visa (partner visa).

2. For the reasons set out below, I find that there is no jurisdictional error in the Tribunal decision. It follows that the application must be dismissed.

   BACKGROUND

3. The applicant is a citizen of Mauritius. She applied for the partner visa on 13 June 2014, sponsored by Mr Evangelos Polydorou (sponsor), whom she married on 16 May 2014.

4. The delegate refused to grant the applicant the partner visa on 24 June 2015 on the basis that she did not meet the requirements of cl 820.211 and 820.221 in Schedule 2 of the Migration Regulations 1994 (Cth) (Regulations). The delegate was not satisfied, on the information and evidence available, that the applicant satisfied the definition of spouse under s 5F of the Migration Act, taking into account the factors set out in reg 1.15A of the Regulations.

5. On 14 July 2015 the applicant applied to the Tribunal for review of the delegate’s decision.

6. On 28 September 2016 the Tribunal invited the applicant to a hearing to give evidence and present arguments, to be held on 17 November 2016. The applicant, with the assistance of a migration agent, filed supporting documents and a written submission in response to this invitation on 15 November and 17 November 2016. The applicant and the sponsor gave evidence at the hearing before the Tribunal on 17 November 2016.

7. At the hearing on 17 November 2016 the Tribunal, pursuant to the process in s 359AA of the Migration Act, invited the applicant to comment on information that the Tribunal considered would be the reason, or part of the reason, for affirming the decision under review. The information put to the applicant was the sponsor’s evidence given at the hearing to the effect that he and the applicant never lived together, other than when they stayed together in a hotel in Cyprus. The applicant responded stating that the sponsor was on medication and forgot things. The Tribunal asked the sponsor whether he was on medication in which he replied that he was under some medication because of serious injuries sustained in a car accident in 2007 and that he sometimes forgets things. However, he told the Tribunal that what was said about his living arrangements was true.

8. By letter dated 1 December 2016, pursuant to s 359A of the Migration Act, the Tribunal invited the applicant to comment on or respond to further information which the Tribunal considered would be the reason or part of the reason for affirming the decision under review. The information put to the applicant was two letters sent to the Minister’s Department by the sponsor in which he advised that the applicant and the sponsor were not living together and that the applicant had kept the marriage a secret from other people. In response to the information, the applicant submitted several documents to the Tribunal on 3 January 2017 which related to the psychological state of the sponsor. The documents included police and medical documents which disclosed that the sponsor was in a car accident in 2007 and sustained serious physical injuries, which led to him suffering depression.

9. The Tribunal then convened a second hearing on 2 February 2017 at which the applicant and the sponsor again both gave evidence.

10. On 3 February 2017 the Tribunal sent a letter to the applicant requesting information in relation to the current nature of the sponsor’s mental health and his ability to give evidence.

11. On 13 February 2017 the applicant provided a copy of a signed letter from the sponsor’s general practitioner dated 8 February 2017. The letter stated that the sponsor has no problem with hearing, comprehending and responding to basic questions, and that his past depression has been treated and does not impact on his quality of life.

12. On 8 June 2017 the Tribunal affirmed the decision under review.

    TRIBUNAL DECISION

13. The Tribunal identified that the issue for its consideration was whether the applicant was the spouse of the sponsor at the time of the partner visa application and at the time of the Tribunal decision. The Tribunal found that the applicant was not in a spousal relationship as defined in s 5F of the Migration Act.

14. The Tribunal accepted, based on a copy of a registered marriage certificate, that the applicant and the sponsor were married to each other on 16 May 2014 under a marriage that is valid for the purposes of the Migration Act, as required by s 5F(2)(a).

15. The Tribunal took into consideration reg 1.15A(3) of the Regulations to determine whether a spousal relationship existed between the applicant and the sponsor. In assessing the nature of the relationship against the relevant factors in reg 1.15A(3), the Tribunal had regard to all documents on the Department’s and Tribunal’s files as well as the oral evidence given at the hearings on 17 November 2016 and 2 February 2017.

    Financial aspects of the relationship

16. The Tribunal found that the applicant and the sponsor did not own any major assets together. The Tribunal noted that both the applicant and the sponsor had larger sums of money in their own separate personal accounts than the amount that they each contributed to a joint account, but was mindful that it was not unusual for couples who marry later in life to pool only some of their financial resources. The Tribunal found that the financial aspects of the relationship did not weigh against a finding that the applicant and the sponsor were in a married relationship, but placed limited weight on the financial aspects of the relationship.

    Nature of the household

17. The Tribunal noted that the applicant and the sponsor gave conflicting oral evidence in key respects about issues relevant to the nature of the household. The Tribunal preferred the evidence of the sponsor over that of the applicant. In circumstances where the applicant had raised some concerns about the sponsor’s memory, the Tribunal sought and had regard to medical evidence of the sponsor’s general practitioner indicating that the sponsor had no problem hearing, comprehending and responding to basic questions. The Tribunal considered that at the hearings the sponsor gave direct and unwavering answers, whereas the applicant gave a number of answers which, upon clarification, were changed in a material way from her first response. The Tribunal found that, at the time of the partner visa application, the applicant and the sponsor were living separately and apart on a permanent basis. 

18. The Tribunal found that the longest period of time that the applicant and the sponsor have lived together was for five weeks when they holidayed in Cyprus in 2015, and that they have never established a home together. Further, the Tribunal noted that there was no information to confirm that the applicant moved into the sponsor’s house in a suburb in Melbourne on the weekend after the second hearing, as the sponsor indicated the applicant intended to do. The Tribunal further noted the sponsor’s evidence that he had bought a house in Adelaide and intended to move there, and that, after spending two days in Adelaide, the applicant said that she did not like the house. The Tribunal found that, at the time of its decision, the applicant and the sponsor were not living together, and were living separately and apart on what appeared to be a permanent basis.

19. The Tribunal placed great weight on its view of the nature of the applicant’s and the sponsor’s living arrangements at both the time of application and at the time of the decision. 

    The social aspects of the relationship

20. The Tribunal accepted that the applicant and the sponsor travelled to Cyprus and socialised together while they were in Cyprus. However, the Tribunal said it was unclear whether they presented themselves as a married couple to family and friends there. The Tribunal accepted the oral evidence of the applicant and the sponsor that they had planned and undertaken a number of joint social activities and that they attended the same dentist on 18 February 2016. However, the Tribunal also considered that evidence in relation to time spent together in public spaces does not necessarily point towards the finding of an existence of a spousal relationship. The Tribunal could not be satisfied as to how widely the applicant and the sponsor had represented themselves to others as being married to each other. The Tribunal considered that the social aspects of the relationship pointed away from the finding that the applicant and the sponsor were spouses. The Tribunal placed limited weight on the social aspects of the relationship.

    The nature of the applicant’s and the sponsor’s commitment to each other

21. The Tribunal gave some weight to the fact that the applicant and the sponsor had been married for three years at the time of the decision and that they both told the Tribunal that they saw the relationship as long-term. The Tribunal accepted that the applicant and the sponsor share a degree of companionship and emotional support.

22. However, the Tribunal expressed great concern over the very small amount of time that the applicant and the sponsor have lived together, namely the 45 days at a hotel in Cyprus and a couple of nights in Adelaide in the course of a three year marriage. The Tribunal was not satisfied that the applicant had been entirely truthful in her evidence to the Tribunal and formed the view that the applicant sought to present the relationship as one that clearly came within the Regulations rather than describing the nature of her and the sponsor’s actual relationship.

23. The Tribunal gave the nature of the applicant’s and the sponsor’s commitment to each other very limited weight in establishing that they were in a married relationship for the purposes of s 5F of the Migration Act.

    Tribunal’s conclusion

24. Although the Tribunal accepted that the applicant and the sponsor were validly married, having regard to the circumstances of their relationship as required by reg 1.15A(3) of the Regulations and after considering all of the evidence, the Tribunal found that the applicant did not satisfy the requirements for a spousal relationship in s 5F of the Migration Act. The Tribunal was not satisfied that, at the time of the application and at the time of the decision, the sponsor and the applicant lived together, or did not live separately and apart on a permanent basis, and therefore found that s 5F(2)(d) was not met. The Tribunal was not satisfied that the parties had a mutual commitment to a shared life as husband and wife to the exclusion of all others, or that the relationship was genuine and continuing, and therefore ss 5F(2)(b) and (c) were not met.

25. Consequently, the Tribunal found that the applicant did not satisfy the criteria for the grant of a partner visa. Specifically, the applicant did not meet cl 820.211(1) and cl 820.221 of the Regulations.

    PROCEEDINGS BEFORE THIS COURT

26. The application for judicial review was filed on 7 July 2017. This is within 35 days of the date of the Tribunal decision, as required by s 477(1) of the Migration Act.

27. The applicant advances three grounds of review in her written application, reproduced below without alteration:

    1.Tribunal have accepted that I am validly married with Mr Evangelos Polydorou but have errored in assessing my spousal relationship as contained in s.5F of the Act.

    2.Myself and Mr Polydorou have lived separately on a temporary basis but the tribunal despite the provided documents have failed to assess our genuine relationship and made decision on incorrect definition of spousal relationship.

    3.Tribunal has given little weightage to our commitment to each other and our married relationship when establishing the relationship for s.5F of the Act.

28. On 21 March 2018 a Registrar of this Court made orders to progress the matter to hearing. Those orders required the applicant to file and serve 28 days before the hearing any amended application, supplementary court book and written submissions. The applicant did not file any documents in accordance with these orders.

29. The matter came before me for hearing on 9 December 2021. The applicant was

    
    

    self-represented and the Minister was represented by Mr Barrington of counsel.

    CONSIDERATION

    Preliminary issue – request for adjournment to file further evidence

30. A preliminary issue arose on the day of the hearing. On the morning of the hearing the applicant sent emails to the Court purporting to file some 80 odd pages of documents. The Court Registry advised the applicant that it could not accept the documents for filing in that form and that they would need to be annexed to an affidavit. The applicant then sent an email to my associate requesting that the hearing be vacated because her paperwork was not ready. My associate responded by email advising that I did not agree to vacate the hearing and the matter remained listed for hearing that day.

31. At the hearing I expressed my preliminary view that most of the documents the applicant wanted to file appeared to be inadmissible, or otherwise already in evidence, and that I was not inclined to grant an adjournment to allow the applicant to file those documents, particularly in circumstances where the application had, at the time of the hearing, been on foot for over four years and the applicant had not complied with any of the orders made on 21 March 2018. I then invited the applicant to make any submissions on her adjournment application. The applicant said that she did not have much experience in the hearing and Court system and that she had tried to find all the papers she needed to get the visa. She then said that that she and her husband already lived together and asked what would happen if those papers did not work.

32. After hearing from the applicant I decided that it was appropriate to proceed with the hearing on that day and not to admit the bundle of documents into evidence before the Court.

33. The bundle of documents provided to the Court on the day of the hearing comprised a handwritten letter from the sponsor, a certificate of citizenship of the sponsor, a number of statutory declarations, various utility bills, rates notices and bank statements, a notice of assessment from the Australian Taxation Office for the year ending 30 June 2021 and a copy of the applicant’s marriage certificate. The citizenship certificate and the marriage certificate both predate the Tribunal’s decision and are included in the court book. Accordingly they are already in the evidence before the Court. The balance of the documents post-date the Tribunal decision and are not relevant to the issue for the Court’s determination, namely, whether the Tribunal decision is affected by jurisdictional error.

34. The desire to file these documents was the only reason advanced by the applicant for seeking that the hearing be vacated. This matter had been on foot for over four years at the time it came before the Court for hearing. As indicated above, orders had been made in 2018 setting timeframes for the filing of documents and the applicant did not comply with these orders. An adjournment of the hearing is not warranted when the sole purpose of the adjournment would be to give the applicant additional time to file documents that have been provided to the Court exceptionally late, in circumstances where those documents are not relevant to the review in any event. Accordingly, the hearing proceeded as listed on 9 December 2021.

    Jurisdictional error

35. In order to be entitled to relief, the applicant must establish that the Tribunal decision is affected by jurisdictional error.

36. Jurisdictional error was explained by Nettle and Gordon JJ in the High Court’s decision in Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3, where their Honours said at [81] (footnotes omitted):

    The categories of jurisdictional error are not closed. Jurisdictional error by a statutory decision-maker includes identifying a wrong issue; asking the wrong question; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; and failing to observe some applicable requirement of procedural fairness. As McHugh, Gummow and Hayne JJ said in Minister for Immigration and Multicultural Affairs v Yusuf [(2001) 206 CLR 323 at 351 [82]]:

    “What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the
    decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it.”

    
    

    Ground 1

1. Ground 1 states that the Tribunal ‘erred in assessing’ the spousal relationship of the applicant in accordance with s 5F of the Migration Act. This ground does not particularise any error.

2. The ground is very general in its terms and it is difficult to identify the precise error that the applicant is asserting. The applicant did not make any submissions in support of this ground either in writing or orally.

3. In his written submissions, the Minister submitted that the ground should be dismissed because of the lack of particulars, and because it does little more than cavil with the merits of the Tribunal’s decision. In his oral submissions, Mr Barrington for the Minister submitted that the Tribunal had engaged in a lengthy and detailed consideration of whether the applicant and the sponsor were in a spousal relationship. In so doing, the Tribunal considered all of the factors set out in reg 1.15A of the Regulations and its consideration is consistent with what the Federal Court said was required in He v Minister for Immigration and Border Protection (2017) 255 FCR 41; [2017] FCAFC 206 (He) at [76].

4. I agree with the Minister’s submissions. The applicant by this ground does appear to be simply expressing disagreement with the outcome of the Tribunal decision and seeking merits review. The Court does not have jurisdiction to engage in merits review.

5. The Tribunal correctly recognised at [14] of its reasons that it was a criteria for the grant of the partner visa that the applicant was the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen both at the time of application and at the time of decision. At [15] the Tribunal said:

   ‘Spouse’ is defined in s.5F of the Act and provides that a person is a spouse of another where the two persons are in a married relationship. Persons in a married relationship must be married to each other under a marriage that is valid for the purposes of the Act, there must be a mutual commitment to a shared life as husband and wife to the exclusion of all others, the relationship must be genuine and continuing, and the couple must live together, or not live separately and apart on a permanent basis: s.5F(2)(a)-(d). In forming an opinion as to these matters, regard must be had to all of the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the parties’ household and their commitment to each other as set out in r.1.15A(3)…

6. The Tribunal recognised and accepted that the applicant and the sponsor were validly married. However, the Tribunal correctly identified that this, in itself, is not enough to meet the definition of spouse in s 5F of the Migration Act. The Tribunal then proceeded to consider in detail each of the factors set out in reg 1.15A(3) of the Regulations for the purposes of assessing whether the applicant and the sponsor are in a relationship that is genuine and continuing. Regulation 1.15A(3) provides:

   (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.

7. In He the Full Federal Court confirmed that the Tribunal is required to consider and make findings on each of the matters in the paragraphs and subparagraphs within reg 1.15A(3). The Tribunal has done that here in a manner that is consistent with the requirements of He. This includes identifying where there is no evidence, as well as setting out the evidence that was before the Tribunal and making findings based on that evidence.

8. The process that the Tribunal followed in reaching its decision showed that it correctly understood the relevant law and the considerations that it was required to take into account in deciding whether the applicant was the spouse of the sponsor. The findings that the Tribunal made were open to it on the evidence before it.

9. Ground 1 is not established.

   Ground 2

10. By ground 2, the applicant asserts that she and the sponsor lived separately on a temporary basis and that the Tribunal erred by failing to assess the relationship as genuine and made its decision based on an incorrect definition of spousal relationship. Again, the applicant did not make submissions which provide any clarity as to the jurisdictional error that she asserts by this ground.

11. The Minister submitted that it is a necessary but not sufficient requirement for meeting the definition of ‘spouse’ that the applicant and the sponsor must ‘live together’ and ‘not live separately and apart on a permanent basis’. The Minister further submitted that the Tribunal’s preference of the sponsor’s evidence over the applicant’s evidence, and its findings that the parties were living apart on a permanent basis and that the longest they had lived together was for five weeks in 2015 while on holiday in Cyprus, were open to it.

12. As discussed in relation to ground 1, the Tribunal at [14] and [15] of its reasons accurately summarised the definition of spouse in s 5F of the Migration Act.

13. The Tribunal correctly identified that one aspect of the definition of spouse required that the applicant and the sponsor live together, or at least not live separately and apart on a permanent basis. To the extent that the applicant asserts before this Court that she and the sponsor were living separately on a temporary basis only, the applicant is seeking merits review which is beyond this Court’s jurisdiction. 

14. As set out above, the Tribunal also correctly understood that it needed to have regard to the factors in reg 1.15A(3) in assessing whether the applicant met the requirements of the definition of spouse, including in relation to whether she and the sponsor lived together or did not live separately and apart on a permanent basis. The Tribunal also recognised that the parties must meet the definition of spouse, and therefore must live together or not live separately and apart on a permanent basis, both at the time of application and at the time of the decision.

15. The Tribunal considered at length the evidence before it in relation to the living arrangements of the applicant and the sponsor. This includes the information provided to the Tribunal in writing, as well as the oral evidence given by both the applicant and the sponsor at the two hearings before the Tribunal.

16. Ultimately, the Tribunal made a finding of fact that the applicant and the sponsor had lived together for five weeks in Cyprus in 2015 and a couple of days in Adelaide in 2016, but otherwise had not established a home together. Based on this, the Tribunal found that the applicant and the sponsor were not living together, and were living separately and apart on a permanent basis, at both the time of decision and at the time of the application. In reaching these findings, the Tribunal preferred the evidence of the sponsor to that of the applicant in relation to whether the applicant and the sponsor were living together. This course was open to the Tribunal.

17. There is nothing before the Court that would indicate that the Tribunal has not understood the definition of spouse in s 5F. Ground 2 is not established.

    Ground 3

18. By ground 3, the applicant asserts that the Tribunal erred by giving insufficient weight to her and the sponsor’s commitment to each other and their married relationship.

19. The weight to be given to evidence before the Tribunal is, generally speaking, a matter for the Tribunal: Minister for Immigration and Citizenship v Applicant A125 of 2003 (2007) 163 FCR 285; [2007] FCAFC 162 at [95]. The Tribunal in the present matter gave some weight to the applicant’s marriage and her and the sponsor’s commitment to each other. This can be seen most clearly at [106] where the Tribunal said:

    The parties’ claim to have first met in either November 2012 or 2013 and they were married in May 2014. The Tribunal gives some weight to the fact that the parties have been married for three years. The Tribunal also gives some weight to the fact that both parties told the Tribunal that they saw their relationship as long-term. The Tribunal notes that Mr Polydorou said, ‘from my side – yes’. Mr Polydorou told the Tribunal, ‘I still love Meena’. The Tribunal is also of the view that the parties share a degree of companionship and emotional support and the Tribunal gives some weight to this.

20. Ultimately, however, these matters were outweighed by other considerations in the Tribunal’s assessment. The Tribunal also had credibility concerns in relation to the applicant’s evidence. The Tribunal’s ultimate conclusion, and the findings it made to support that conclusion, were all open to it on the evidence. As the Minister submitted, the Tribunal’s decision has a rational basis and is within the area of decisional freedom: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [28].

21. Ground 3 does not establish any jurisdictional error in the Tribunal decision.

    Other matters raised in the applicant’s oral submissions

22. At the hearing of this matter, I gave the applicant the opportunity to tell me what she thought the Tribunal did wrong in this matter. The applicant raised issues in oral submissions that go beyond the issues raised in her grounds of application. In circumstances where the applicant is self-represented, I consider it appropriate to have regard to the matters raised in the applicant’s oral submissions.

23. The first issue raised in the applicant’s oral submissions was that she was living with the sponsor at the time of the Tribunal decision, but he had mental health issues and was not well. The implication in the applicant’s submission is that the sponsor’s evidence was unreliable and the Tribunal’s reliance on it may have led to some sort of error in the Tribunal decision. The applicant also said that the sponsor provided a letter to the Department that was false.

24. In my view, these issues do not give rise to jurisdictional error in the Tribunal decision. The Tribunal carefully considered the reliability of the sponsor’s evidence and addressed at length the issues arising from the sponsor’s evidence to the Department and Tribunal. The Tribunal employed the processes set out in ss 359A and 359AA of the Migration Act to invite the applicant to comment on adverse evidence and information given by the sponsor.

25. At the first Tribunal hearing on 17 November 2016, the sponsor gave evidence that he lived alone and that the applicant did not live with him. In response to this, the Tribunal informed those in the hearing room that to meet the definition of spouse, the applicant and the sponsor must live together or otherwise not live separately and apart on a permanent basis, and noted that there was contradictory oral evidence on this point. The Tribunal used the process in s 359AA of the Migration Act to give particulars of this information which would be the reason or part of the reason for affirming the decision under review. The Tribunal adjourned the hearing to give the applicant 15 minutes to consider her response and the Tribunal records that it advised the applicant that she could seek additional time to comment on the information. The applicant then told the Tribunal that the sponsor is under medication and forgets things, and said that it is up to him what he will decide to say.

26. On 1 December 2016, pursuant to s 359A of the Migration Act, the Tribunal wrote to the applicant to give clear particulars of information that the Tribunal considered would be the reason or part of the reason for affirming the delegate’s decision. The information that the applicant was invited to comment on was the information in two letters that the sponsor had provided to the Department which, amongst other things, suggested that the applicant was not living with the sponsor and instead was living with a friend. In response to this invitation to comment, the applicant provided a number of documents from various health professionals commenting on the sponsor’s psychological state. In assessing this evidence, the Tribunal noted that there was no current documentary evidence relating to the sponsor’s psychological state and that the most recent letter set out the sponsor’s psychological and physical conditions but did not state that he suffered from memory loss.

27. The Tribunal decision records that at the hearing on 2 February 2017, the Tribunal requested that the parties provide a letter outlining any condition that the sponsor may have that affects his ability to give evidence. The applicant provided a letter from the sponsor’s general practitioner which indicated that the sponsor ‘has no problem with hearing, comprehend[ing] and respond[ing] to basic questions. In addition, he has Depression in the past and has been treated with medications however his current condition has no impact to his quality of life’.

28. It is clear from the very detailed reasons given by the Tribunal that the Tribunal carefully considered the reliability of the sponsor’s evidence given the concerns raised about his mental health and his memory. Ultimately, the Tribunal was satisfied that the sponsor was able to give evidence and preferred the sponsor’s evidence to that of the applicant. The Tribunal’s approach to assessing the evidence of the sponsor is thorough and comprehensive and does not give rise to any jurisdictional error.

29. In her reply submissions before the Court, the applicant raised a further issue about the sponsor’s evidence. The applicant submitted that everything was going well in the Tribunal before the sponsor’s evidence. She was of the view that the sponsor did not do this on his own and must have been pushed to do these things by someone. She further said that someone must have put in his mind what to say on the day of the Tribunal hearing.

30. Given that this issue was raised in reply submissions for the first time, I gave Mr Barrington an opportunity to make submissions on this on behalf of the Minister. Mr Barrington submitted that there is no evidentiary foundation for the assertions made by the applicant, and that, in any event these issues were not raised before the Tribunal and could not impact upon the lawfulness of the Tribunal decision.

31. I find that this additional issue raised by the applicant does not give rise to jurisdictional error. I accept Mr Barrington’s submission that there is no evidentiary basis in the material before the Court to support the applicant’s vague assertions.

32. In any event, the applicant had the opportunity when the matter was before the Tribunal to comment on evidence given by the sponsor that was adverse to the applicant’s case. At no stage in that process did the applicant suggest that another person was trying to influence the sponsor to give adverse evidence to the Department or the Tribunal. Rather, as indicated above, her explanation was that the sponsor forgets things because of his mental health issues.

33. The Tribunal noted in its reasons that on a number of different occasions the sponsor gave evidence that, aside from a five week holiday to Cyprus, the applicant had not lived with him and they had only spent a few nights in the same house. The Tribunal considered the medical evidence in relation to the sponsor including the evidence from his general practitioner that he has no problems with hearing, comprehending and responding to basic questions. The Tribunal assessed at both hearings that the sponsor was direct and unwavering in giving his answers whereas the applicant changed her answers in material ways when the Tribunal sought clarification.

34. In circumstances where it was never put to the Tribunal that the sponsor had been influenced by another person, who has not been identified, in giving his evidence, the Tribunal has not erred in not addressing or considering this.

35. I did not understand the applicant in raising this issue to be asserting that some unnamed person had committed fraud on the Tribunal. The applicant’s submission seemed speculative, whereas an allegation of fraud would need to be distinctly pleaded and proved: Lazarus Estates Ltd v Beasley [1956] 1 QB 702 at 712-713, cited in SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189; [2007] HCA 35 at [15]. A vague speculation, or even vague evidence, that someone must have put ideas into the sponsor’s head to influence his evidence to the Tribunal cannot establish fraud on the Tribunal, particularly in the context of the Tribunal’s careful and extensive consideration of the reliability of the sponsor’s evidence. In this context, I note that, when the sponsor’s memory and medical issues were raised, the Tribunal questioned him about his evidence and he reaffirmed that his evidence about he and the applicant not living together was the truth.

36. The applicant has not, in her oral submissions, identified any jurisdictional error in the Tribunal decision.

    CONCLUSION

37. I have found that there is no jurisdictional error in the Tribunal’s decision.  It follows that the application for judicial review must be dismissed.

I certify that the preceding seventy-three (73) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams.

Dated:       27 January 2022