Happi v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 1334
•5 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Happi v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 1334
File number(s): BRG 69 of 2024 Judgment of: JUDGE EGAN Date of judgment: 5 December 2024 Catchwords: MIGRATION – Whether the Tribunal carried out a proper review – whether the Tribunal misdirected itself as to its consideration of the relevant criteria under PIC 4020 – no jurisdictional error established – application dismissed. Legislation: Migration Act 1958 (Cth), s. 5F, s. 65
Migration Regulations 1994 (Cth), Schedule 4 PIC 4020, r. 1.15A
Cases cited: He v Minister for Immigration and Border Protection (2017) 255 FCR 41
Singh v Minister for Immigration and Border Protection (2018) 261 FCR 556
Trivedi v Minister for Immigration and Border Protection (2014) 220 FCR 169
Division: Division 2 General Federal Law Number of paragraphs: 26 Date of hearing: 15 November 2024 Place: Brisbane Counsel for the Applicant: Mr P. Nolan of Counsel Solicitor for the Applicant: Stephens & Tozer Solicitors Counsel for the First Respondent: Mr D. Freeburn of Counsel Solicitor for the First Respondent: Sparke Helmore The Second Respondent: Submitting appearance, save as to costs ORDERS
BRG 69 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: GEORGE BELMOND MOUAPI HAPPI
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE EGAN
DATE OF ORDER:
5 DECEMBER 2024
IT IS ORDERED THAT:
1.The name of the first respondent be changed to “Minister for Immigration and Multicultural Affairs”.
2.The name of the second respondent be changed to “Administrative Review Tribunal”.
3.The Amended Application for Review filed on 25 October 2024 be 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 EGAN
INTRODUCTION
The applicant is a male citizen of Cameroon who first arrived in Australia on 25 October 2014 as the holder of a Vocational Education and Training Sector (Sub-class 572) Visa.
The applicant met one Jenelanda Carroll on 14 November 2014. The applicant and Ms Carroll commenced a relationship on or about 9 May 2015; became engaged in October 2016; and thereafter started living together at the sponsor’s residence in January 2017 prior to marrying on 19 February 2017.
The applicant applied for a Partner (Temporary) (Class UK) Visa on 12 April 2017 pursuant to the provisions of s. 65 of the Migration Act 1958 (Cth) (“the Act”), Ms Carroll being the applicant’s visa sponsor.
On 13 June 2019, the applicant notified the Department that his relationship with the sponsor had broken down because of alleged domestic violence perpetrated upon him by the sponsor.
On 19 June 2019, the sponsor provided the Department with a letter withdrawing her sponsorship.
On 26 June 2019, the applicant was provided with a natural justice letter advising him of adverse information which the Department held relating to evidence that the applicant had provided a bogus document, or false or misleading information, in relation to his visa application, with the result that he may fail to satisfy the criteria in PIC 4020(1). It was also claimed by the Department that though married to his sponsor, the applicant was already married to another woman.
On 5 September 2019, a delegate of the Minister refused the visa application. The delegate was not satisfied that the applicant satisfied the “spouse” criteria as defined in s. 5F of the Act. The delegate further found that the applicant did not meet the criteria in PIC cl. 4020 to Schedule 4 of the Migration Regulations 1994 (Cth) (“the Regulations”).
On 16 September 2019, the applicant applied to the Administrative Appeals Tribunal (“the Tribunal”) for review of the decision of the delegate.
On 23 December 2023, the applicant appeared before the Tribunal to present arguments and make submissions. On 17 January 2024, the Tribunal affirmed the decision of the delegate.
Grounds of Review
On 16 February 2024, the applicant filed an Originating Application for Review. On 25 October 2024, the applicant filed an Amended Application for Review, the grounds of which were as follows:
1. The decision maker failed to discharge its statutory obligation to make findings on the prescribed matters in regulation 1.15A(3)(b)(i), (3)(b)(iii), (3)(c)(ii), 3(c)(iii), (3)(d)(iii) and (3)(d)(iv) of the Migration Regulations 1994 (Cth).
2. The decision maker failed to respond to substantial and clearly articulated arguments relying upon established facts regarding the matters in regulation 1.15A(3)(b)(i), (3)(b)(iii), (3)(c)(ii), (3)(d)(iii) and (3)(d)(iv).
3. The decision maker failed to apply the correct statutory test, or ask the correct questions, when purporting to apply to public interest criteria 4040 in schedule 4 of the Regulations.
Grounds 1 and 2 were submitted by Counsel for the applicant as being required to be read together. It was claimed that the Tribunal failed to respond to a substantial and clearly articulated argument relying upon “established facts”, and that in doing so, the Tribunal had failed to properly exercise jurisdiction. It was further submitted that the Tribunal had failed to make findings on each of the prescribed matters under r. 1.15A of the Regulations, which relevantly provided as follows:
Regulation 1.15A of the Regulations provide, relevantly:
1.15A Spouse
(1) For subsection 5F(3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5F(2)(a), (b), (c) and (d) of the Act exist.
(2) If the Minister is considering an application for:
(a)a Partner (Migrant) (Class BC) visa; or
(b)a Partner (Provisional) (Class UF) visa; or
(c)a Partner (Residence) (Class BS) visa; or
(d)a Partner (Temporary) (Class UK) visa;
the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).
(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)and 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 person’s 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 person’s 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.
It was submitted that the Tribunal failed in its statutory duty to properly consider the applicant’s claims before it. Reliance was placed upon the Full Court decision in He v Minister for Immigration and Border Protection (2017) 255 FCR 41 at [51] per Siopis, Kerr and Rangiah JJ where it was held:
[51]“Section 5F of the Act gives the word “spouse” a narrower definition than its ordinary meaning by imposing the four conditions that are required to be satisfied. The definition seems designed principally to avoid sham or contrived marriages being used to obtain the grant of visas. The conditions that the persons must have a mutual commitment to a shared life as husband and wife to the exclusion of all others and that the relationship be genuine and continuing are impressionistic and evaluative: Ally v Minister for Immigration & Citizenship [2008] FCAFC 49 at [40]. The requirement of reg 1.15A(2) that the Minister must consider all the circumstances of the relationship recognises that the nature of marital relationships is infinitely varied and incapable of being fully described. The presence or absence of any particular circumstance in a marriage does not necessarily mean that the marriage is or is not genuine. However, reg 1.15A(3) sets out particular circumstances that the Minister is required to consider, presumably on the basis that these circumstances are considered to be of particular relevance or significance to determining whether a marriage satisfies the conditions set out in s 5F(2) of the Act.”
Even if the Court accepted the applicant’s argument that the Tribunal had failed to properly consider all of the applicant’s claims, that is not an end of the matter. If the applicant failed to make out Ground 3, no jurisdictional error on the part of the Tribunal could be established, as the visa refusal would have been valid on the basis that the PIC criteria had not been met in any event.
Ground 3 was a claim that the Tribunal had failed to apply the correct statutory test, or ask the correct questions, when purporting to consider PIC 4020, which relevantly provided as follows:
PIC 4020
(1) There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal during the review of Part 5 – reviewable decision, a relevant assessing authority or a Medical Officer of the Commonwealth, bogus document or information that is false or misleading in a material particular in relation to:
(a) the application for the visa; or
(b) a visa that the applicant
…
(3) To avoid doubt, subclauses (1) and (2) apply whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant.
…
(5) In this clause:
"information that is false or misleading in a material particular" means information that is:
(a) false or misleading at the time it is given; and
(b) relevant to any of the criteria the Minister may consider when making a decision on an application, whether or not the decision is made because of that information.
At [59] – [74] of its reasons, the Tribunal considered the circumstances surrounding the applicant’s failure to identify two significant relationships which he had had with women other than those he had in fact identified as women with whom he had been in a prior relationship. At [59] – [60] of its reasons, the Tribunal found as follows:
[59] In the 820 application the review applicant declared:
(a) the existence of his three children in Cameroon, namely, Ngako Fon Jason Mouapi, Eleonore Alycia Mouapi Ngone and Vigny Melkior Mouapi Chey;
(b) that he had been in one previous relationship with Ms Janelle Christine Gray, an Australian citizen, for a brief period between 21 March 2015 and 29 April 2015
(c) that a child of that relationship namely Ms Olivia Jeanette Gray, was born on 16 May 2016.
[60] The 820 application made no reference to the previous relationship with Ms Tshangane in South Africa or his child with her and nor did he make any reference to the previous relationship with Ms Aichatoupeka Chey (“Ms Chey”), the mother of his three children in Cameroon
Reliance was placed by the applicant on the judgment of Buchanan J (Allsop CJ and Rangiah J agreeing) in Trivedi v Minister for Immigration and Border Protection (2014) 220 FCR 169 at [32] – [33] where it was held as follows:
32. “It is apparent from the terms of PIC 4020 that it addressed the problem of attempts to work a fraud or deception on the assessment of claims for a visa. That is also evident from the fact that PIC 4020 states a “public interest” criterion, from the narrow and exceptional circumstances necessary to waive its requirements and, more generally, from the serious consequences that follow from its application. I would not infer any apparent intention to disqualify a visa applicant who could explain an innocent mistake in a document or information provided by them. PIC 4020 is not directed, in my view, to innocent, unintended or accidental matters. However, different questions arise when information or documents provided in support of an application are revealed as false, in the purposely untrue sense of that term.
33. In my view, it should be accepted that an element of fraud or deception is necessary in order to attract the operation of PIC 4020. To take the example of bogus documents, a counterfeit document is not produced accidentally. Similarly, to charge that a statement is false is not to say only that it is wrong. The accusation potentially imports some element of knowledge or intention on somebody’s part, and in my view does so in the present context.”
It was first submitted on behalf of the applicant that the question on the relevant form was ambiguous in that it did not require the applicant to provide details of “all” previous relationships and that, therefore, there was no intention to mislead or otherwise deceive the Department, and that his provision of information fell into the innocent, unintended or accidental category of answers and were excusable. It was secondly submitted that the Tribunal had failed to make any finding that the provision, or lack of provision, of information, was purposely untrue. The third submission was that the failure to include reference to the previous relationships did not relate to any of the matters as set out in r. 1.15A, and that information about previous relationships was irrelevant.
The Court accepts the submissions made on behalf of the first respondent concerning Ground 1. The Court finds that there was no ambiguity in the question to be answered by the applicant. It was a simple question requiring details of prior relationships. The applicant could hardly have forgotten the fact of his having fathered a child in South Africa, as well as his having fathered three other children in Cameroon not previously referred to by him. For it to be submitted that such was open to oversight, or otherwise considered of no consequence by the applicant, was implausible and otherwise without merit. Where other incomplete information capable of conveying an entirely different past relationship scenario had been provided to the Department by the applicant, and where the applicant allowed that incomplete information to stand alone, the provision of such information clearly constituted the provision of false or misleading information.
In Singh v Minister for Immigration and Border Protection (2018) 261 FCR 556 at [144.4] and at [153], Griffiths and Moshinsky JJ held as follows:
144. “The following general principles may be derived from the analysis of the above case law.
…
(4)Where an issue of the proper construction or application of PIC 4020 is raised, Trivedi and Patel authoritatively state that where a visa applicant has given or caused to be given to a relevant decision-maker a document which is a “bogus document” as defined, or information that is false or misleading in a material particular as defined, to determine whether PIC 4020 is satisfied or not, it is not necessary to show knowing complicity by the visa applicant as long as the material is purposely untrue.
…
153. We do not consider that the legislative scheme, which vests responsibility on the visa applicant for what is provided to the Department in support of a visa application, differentiates between the facts and circumstances in Trivedi and Patel and those here (and in Zhang). It was open to the AAT to find that the appellant had given or caused to be given to the Department a bogus document or information that was false or misleading in a material particular.” …
Otherwise, the applicant seeks an impermissible merits review of a finding which was open to the Tribunal based upon the evidence before it.
The purposely untrue argument advanced on behalf of the applicant was without merit. The Tribunal at [54] – [55] of its reasons clearly appreciated the relevant criteria which had to be satisfied under PIC 4020. It correctly cited Trivedi and Singh. It did not err in that regard.
As to the irrelevancy argument, the Court rejects the submission made on behalf of the applicant, albeit that the Court considers it unnecessary to do so. PIC 4020 considerations are quite separate and apart from a consideration of the criteria as set out in r. 1.15A. The Tribunal correctly considered in a logical and rational way the evidence before it which disclosed that the applicant had failed to provide information to the Department which was relevant to an appreciation of all the applicant’s relevant circumstances. The failure to provide such relevant information was a serious deficiency on the part of the applicant in his visa application process, and was false or misleading.
It was rightly found by the Tribunal that such deficiency precluded the applicant from the grant of a visa. At [77] – [79] of its reasons, the Tribunal found as follows:
77. Having considered all the evidence, the Tribunal finds that the review applicant provided false or misleading information in his 820 application for a partner visa in 2017 in the following manner:
(i)failing to declare that he had been in a previous relationship, namely being engaged to Ms Tshangane in South Africa and that there was a child of this relationship; and
(ii) failing to declare that he had been in a previous relationship, namely a long-term de facto relationship, with Ms Chey in Cameroon (the mother of his three children there) from 1997-1999 for more than 12 years.
78. Therefore, the Tribunal finds that the review applicant provided information as referred to in paragraph 77 above which was false or misleading in a material particular: namely, that it was false and misleading at the time it was given (PIC 4020(5)(a)); and that it was relevant to the criteria that the Minister may consider when making a decision on an application (PIC 4020(5)(b)) namely, as to whether the review applicant was in a mutually exclusive, ongoing and genuine relationship with the sponsor.
79. Therefore, the visa applicant does not meet PIC 4020(1).
The applicant has failed to establish jurisdictional error on the part of the Tribunal when it found that the applicant had not satisfied the PIC 4020 criteria. It was unnecessary for the Court to deal with Grounds 1 and 2 of the Application for Review.
Ground 3 of the Application for Review is without merit and is dismissed. The visa refusal was justified.
The Court will hear the parties as to costs.
I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan.
Associate:
Dated: 5 December 2024
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