He v Minister for Immigration
[2016] FCCA 2908
•11 November 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HE & ORS v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 2908 |
| Catchwords: MIGRATION – Application for review of decision of Migration Review Tribunal (Tribunal) affirming decision of delegate not to grant Partner (Residence) (Class BS) visa (Partner visa) – whether Tribunal did more than pay “lip service” to whether the relationship between the applicant and the sponsor satisfied the elements of the definition of “spouse” given in s.5F of the Migration Act 1958 (Cth) – whether the Tribunal failed to decide whether as at the date of decision the applicant and sponsor cohabitated or did not cohabitate – whether the Tribunal acted irrationally in concluding the applicant and sponsor were not in a spousal relationship by relying on a number of factors each of which when considered alone was insufficient to establish the applicant and the sponsor were not in a spousal relationship – no jurisdictional error. |
| Legislation: Convention Relating to the Status of Refugees 1951 as amended by the Protocol Relating to the Status of Refugees 1967, Art.1F(b) |
| Cases cited: Australian Competition and Consumer Commission v Air New Zealand Limited [2014] FCA 1157 FTZK v Minister for Immigration and Border Protection [2014] HCA 26; (2014) 88 ALJR 754 Islam v Cash [2015] FCA 815 R v Exall (1866) 4 F & F 922; 176 ER 850 |
| First Applicant: | BAOYUN HE |
| Second Applicant: | CHENGHUI ZHANG |
| Third Applicant: | CHENGWEI ZHANG |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2664 of 2014 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 30 September 2015 |
| Delivered at: | Sydney |
| Delivered on: | 11 November 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr N Poynder |
| Solicitors for the Applicant: | Kah Lawyers |
| Counsel for the Respondents: | Mr P Knowles |
| Solicitors for the Respondents: | DLA Piper Australia |
ORDERS
The application is dismissed.
The Administrative Appeals Tribunal is substituted for the Migration Review Tribunal as the second respondent.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2664 of 2014
| BAOYUN HE |
First Applicant
| CHENGHUI ZHANG |
Second Applicant
| CHENGWEI ZHANG |
Third Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
Before the Court is an application for judicial review of a decision of the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicants Partner (Residence) (Class BS) visas (Partner visa).
Background
The first applicant (applicant) is a citizen of the People’s Republic of China (China). The second and third applicants are her two adult sons.
On 30 August 2010 the applicant applied for a Partner visa. To have been entitled to a Partner visa, the applicant had to satisfy cl.801.221(c) of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations), which provided that an applicant for a Partner visa had to demonstrate, at the time of decision, that he or she is “the spouse or de facto partner of the sponsoring partner”. In her application, the applicant stated she married the sponsor on 21 August 2010. The applicant, therefore, had to satisfy the delegate and, on review, the Tribunal, that, at the time of decision, the applicant was “the spouse” of the sponsor.
Subsection 5F(1) of the Migration Act 1958 (Cth) (Act) provides that a person is the “spouse” of another person if, under s.5F(2) of the Act, the two persons are in a married relationship. Under s.5F(2) of the Act, persons are in a “married relationship” if:
a)they are married to each other under a marriage that is valid for the purposes of this Act; and
b)they 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
d)they live together, or do not live separately and apart on a permanent basis.
Subsection 5F(3) of the Act provides that the Regulations “may make provision in relation to the determination of whether one or more of the conditions in paragraphs (2)(a), (b), (c) and (d) exist”. The Regulations have made provision, and this is to be found in reg.1.15A of the Regulations. Subregulation 1.15A(2) provides that, when considering an application for, among other things, a Partner visa, the Minister must consider all the circumstances of the relationship, including the matters set out in reg.1.15A(3) of the Regulations. Those matters are:
a)the financial aspects of the relationship, including any joint ownership of real estate or other major assets; any joint liabilities; the extent of any pooling of financial resources, especially in relation to major financial commitments; whether one person in the relationship owes any legal obligation in respect of the other; the basis of any sharing of day-to-day household expenses; and
b)the nature of the household, including any joint responsibility for the care and support of children; the living arrangements of the persons; and any sharing of the responsibility for housework; and
c)the social aspects of the relationship, including whether the persons represent themselves to other people as being married to each other; the opinion of the persons’ friends and acquaintances about the nature of the relationship; and any basis on which the persons plan and undertake joint social activities; and
d)the nature of the persons’ commitment to each other, including the duration of the relationship; the length of time during which the persons have lived together; the degree of companionship and emotional support that the persons draw from each other; and whether the persons see the relationship as a long-term one.
On 14 September 2011 a delegate granted to the applicant a Partner (Temporary) (Class UK) (subclass 820) visa (Provisional partner visa).
On 20 July 2012 the applicant provided to the delegate a number of items of evidence in support of her application for a Partner visa. These included a statement of the applicant’s Commonwealth Bank of Australia account that showed her residential address to be at Auburn (Auburn Property), and statutory declarations by the applicant and the sponsor in relation to their joint financial commitments, their cohabitation since 20 August 2010, and their genuine commitment to each other.
On 6 February 2013 two officers from the Department of Immigration and Border Protection (Department) conducted a site visit of the Auburn property. After the site visit, the officers prepared a report (Site Visit Report) in which they reported the following: [1]
a)The applicant resided in a small three room granny flat at the rear of the Auburn property.
b)The officers approached the main house on the Auburn property, and were greeted by an elderly male and an elderly female. Neither knew a person by the name of the sponsor or the name of the applicant (Baoyun He). They did know, however, a person by the name of Ping Miao, being the name the applicant used when she previously applied unsuccessfully for a protection visa.
c)The elderly male requested the officers to remain at the door while he called for Ms Ping. After about five minutes, the applicant appeared. She excused herself for taking her time, explaining she had just woken up. The applicant said the elderly people were her landlords.
d)The officers then went to, and entered the granny flat where the applicant resided. On being taken to the bedroom, the officers observed a double bed. There were two photographs on the wall featuring the applicant and the sponsor on their wedding day. There was a double wardrobe. Three pairs of male pants and a jacket were hanging on the corner of the wardrobe. A male’s electronic shaving device was sighted on the table.
e)When asked where the sponsor was, the applicant said her good friend had cancer, and the sponsor together with many good friends visited the applicant’s friend in Liverpool hospital the day before, and the sponsor had then slept at the sponsor’s son’s house. She said that because of her poor English she could not remember where the sponsor’s son lived, but she gave an address and said she knew how to get there by car.
f)The applicant gave details of where she worked, the nature of her work, and hours she worked. She also provided details of the sponsor’s work.
g)One of the officers asked whether she and the sponsor shared a joint bank account. The applicant presented a bank statement for a joint account held by the applicant and sponsor, and she was asked a question about a particular deposit. The applicant also said she and her husband had separate bank accounts. The applicant also presented a receipt for a term deposit of $50,000. She said this was her safety net, that she “is looking out for her sons’ future”, and that she wished to use the money to purchase a house.
h)The applicant was requested to show the sponsor’s clothing. The applicant opened the wardrobe. On the right were the applicant’s clothes, and on the left were the sponsor’s clothes. There were two suits, and pyjamas on a coat hanger. The applicant also opened plastic bins that contained the applicant’s and the sponsor’s socks and underwear. The applicant also showed the officers her camera that held photographs of her and the sponsor with the applicant’s sons in the background.
[1] CB131-135
The Site Visit Report contains a section under the heading “conclusion” in which reservations are expressed about the veracity of the applicant’s and sponsor’s claimed cohabitation, noting, “however, there is no substantive evidence to support a non-genuine finding”. The report then noted the matters that gave rise to the reservations:
a)In response to the officer’s request that the applicant show where the sponsor kept his socks, the applicant tried to open a plastic stackable container that was actually facing the wall and, therefore, was impossible to open. The applicant then searched a few other drawers after which she found some socks, and said her husband must have changed the drawers.
b)The applicant showed many T-shirts, but it was not possible to determine whether they belonged to the sponsor, because they could have belonged to the sons.
c)There was minimal clothing in the wardrobe.
The Site Visit Report concluded as follows:
In summary, the evidence supporting cohabitation comes down to the 4 toothbrushes that were in the toilet, two suit jackets that were in the wardrobe and a pair of pyjamas that were ironed and on a coat hanger. The t-shirts and socks sighted could belong to the sponsor or the applicant’s male sons. There was also mail in the sponsor’s name, which had been opened and stored in a separate filing drawer to that of Ms He’s mail. They do not have joint assets and Ms HE [sic] claims that her husband cares for the financial wellbeing of his biological children from his first marriage. She is the second marriage and therefore it is up to her to secure her children’s financial future. Ms He claims her sister is rich and has given her $48000 to invest in a short term deposit which she then plans to buy a house. On the basis of my overall findings and evidence gathered, I am finalising this case as serious concerns.
Before the Tribunal
The applicant and the sponsor gave evidence before the Tribunal over two days of hearing. The Tribunal also received evidence from other persons.
During the first of the two days of hearing, the applicant:
a)said she lived with the sponsor at a different address from the Auburn property, and gave evidence of the work she and the sponsor performed;[2]
b)gave evidence of how she met the sponsor;[3]
c)offered an explanation for the landlord’s not recognising the sponsor’s name during the site visit to the Auburn Property;[4]
d)said she had a number of bank accounts in her name and in her assumed name (Ping Miao); she held various amounts in term deposits totalling over $100,000; she borrowed $50,000 from her younger sister in China; she earned over $1,200 a week, while the sponsor earned around $900 a week; the sponsor, although originally paid in cash, was now paid by cheque, and that the sponsor pays his wages to the applicant;[5] and
e)said there was no specific system in relation to the payment of household expenses, although rent and utilities were paid from the joint account.[6]
[2] CB691, [12]
[3] CB692, [13]
[4] CB692, [15]
[5] CB692, [16]
[6] CB692, [17]
The applicant was asked about Departmental records that showed the applicant and the sponsor having taken separate trips to China, two by the sponsor, and one by the applicant. The applicant said the sponsor visited because his father had passed away, and the applicant visited because she had visa problems.[7]
[7] CB692, [19]
The sponsor gave evidence about how he met the applicant, and about their living and financial arrangements that was consistent with the applicant’s evidence.[8] The sponsor said that in 2010 he travelled alone to China because his father was ailing and died, but he returned with his ex-wife, who had a good relationship with his family and had returned to pay her respects. The sponsor said that in 2013 he travelled with his ex-wife to China because their son was engaged to be married, and they visited the son’s parents-in-law.[9] The sponsor said he separated from his wife in 2004, but they maintain regular telephone contact because they have two children.[10]
[8] CB693, [21]
[9] CB693, [22]
[10] CB693, [23]
One of the sponsor’s sons gave evidence. He said he had sponsored his father to come to Australia on a contributory parent visa, that his father had met the applicant at a party the son’s mother organised, and that the applicant was a lovely lady who looked after his father.[11]
[11] CB693, [26]
After the hearing, by letter dated 23 June 2014, the Tribunal provided to the applicant particulars of information the Tribunal considered would be the reason, or part of the reason, for affirming the delegate’s decision. The letter provided the following particulars of information:[12]
[12] CB472
a)Travel records that indicated the following:
i)the sponsor travelled outside of Australia on three occasions;
ii)the sponsor’s ex-wife also travelled outside of Australia on three occasions;
iii)on two of the three occasions the sponsor and the sponsor’s ex-wife travelled outside of Australia, they left and returned to Australia on the same dates;
iv)on one of the three occasions the sponsor and the sponsor’s ex-wife travelled outside of Australia, they left Australia on different dates, but returned to Australia on the same date;
v)the applicant was outside Australia for a period different from the three periods for which the sponsor was outside Australia;
vi)a passenger movement card signed by the sponsor in 2010, being the first of the three trips, declared that his intended address was an address in Auburn (different from the Auburn property), and gave the name of his son as the emergency contact;
vii)a passenger movement card signed by the applicant in 2012, being the second of his trips, declared that his intended address was an address in Chester Hill.
b)The landlord’s not knowing the name of the sponsor, and the limited evidence of cohabitation noted in the Site Visit Report.
c)Aspects of the applicant’s previous migration history, and in particular, the applicant’s in effect permitting false claims to be presented on her behalf.
In addition, the Tribunal invited the applicants to provide financial records, and explanations as to why large or unusual transactions in bank accounts occurred, including a cash deposit of $20,687 that was made to the applicant’s ANZ account on 30 January 2009.
The applicants responded by their agent’s letter dated 7 July 2014 with which was enclosed a number of statutory declarations and various documents.[13] The responses in the statutory declarations were as follows:
[13] CB484
a)As to the applicant’s travel to China, the applicant said she did not travel with the sponsor during the sponsor’s first and third trips to China because the applicant was on a bridging E visa which did not permit travelling.[14] The applicant gave three reasons for not travelling with the sponsor during his second trip to China: the sponsor went to China to attend the sponsor’s father’s memorial blessing ceremony, and, because the sponsor’s ex-wife’s relationship with the sponsor’s late father was very good, the applicant felt it was more suitable if the applicant did not attend; the applicant had previously taken leave to travel to China; and the applicant and sponsor wanted to save money. The sponsor did not travel with the applicant when she visited China because the sponsor was unable to obtain leave from his employer.
b)As to the sponsor’s travel to China, the sponsor said:
i)The applicant did not travel with him to China on the first occasion because the applicant “did not have a return visa to Australia”. The sponsor’s son and daughter helped the sponsor organise the air ticket for departure, and the sponsor’s daughter wrote the sponsor a piece of paper telling the applicant to ask the air hostess to fill out a card when he returned to Australia. After the sponsor arrived in Shanghai, his father died, and the sponsor’s mother asked that the sponsor’s ex-wife attend the funeral. The sponsor’s ex-wife then travelled to China and helped arrange the funeral.[15]
ii)The sponsor travelled to China on the second occasion to attend a memorial service for his late farther. The sponsor did so at the request of his mother, who also insisted that the sponsor’s former wife also attend. The sponsor said he asked the applicant also to attend, but she said she was worried she might not be able to obtain leave from her employer.[16] The sponsor said that his ex-wife probably filled in the passenger card.[17]
iii)The sponsor travelled to China for a third time because his son was getting married. The applicant was invited, but she did not have “a return visa for coming back to Australia”.[18]
iv)The sponsor did not travel with the applicant when she went to China because the sponsor was unable to obtain leave.[19]
c)As to the issue raised about the home visit, the applicant referred to a statutory declaration by the applicant’s landlords at the Auburn property. The male landlord said that perhaps because he was too nervous, or due to his poor English, he did not hear the officer utter the name of the sponsor, and he responded “I do not know this person by this name”.[20]
d)As to the applicant’s migration history, the applicant apologised, and said that, after having stayed in Australia, she has learned “the utmost importance of life, that is, the integrity of honesty and law abiding”.[21]
[14] CB486
[15] CB490-491
[16] CB491
[17] CB492
[18] CB492
[19] CB493
[20] CB496
[21] CB488
The applicants’ response was also supported by statutory declarations from the sponsor’s children which corroborated the matters the applicant and sponsor asserted in their statutory declarations.[22]
[22] CB449-504
A further hearing took place before the Tribunal, where the Tribunal heard further evidence from the applicant, the sponsor, and the sponsor’s son.[23] The applicant gave evidence about a number of financial transactions.
[23] CB696, [41]
Tribunal’s decision
The Tribunal noted that the evidence of the applicant and the sponsor, if accepted, supports a finding that they are in a spousal relationship.[24] The Tribunal, however, noted it had “serious concerns about the credibility” of the applicant and the sponsor “when it comes to evidence about their commitment to the relationship”.[25] First, the applicant “has demonstrated that she is prepared to provide false and misleading information to a tribunal in order to achieve a migration outcome”.[26] That the applicant had lied to a previous Tribunal, however, did not necessarily mean that she was lying to the Tribunal.[27] Nevertheless, the Tribunal said it was cautious in accepting the applicant’s evidence when it comes to migration matters.[28]
[24] CB698, [56]
[25] CB698, [57]
[26] CB698, [59]
[27] CB698, [59]
[28] CB698, [60]
Second, there were two matters raised in the Site Visit Report; and these were that the landlord of the Auburn property appeared not to know the sponsor, and there appeared to be little evidence that the sponsor resided at the Auburn property.[29] The Tribunal noted the landlord now claimed the sponsor lived at the Auburn property, and that he claimed he misunderstood who the Departmental officers were looking for. That, however, left the problem of there being limited evidence that the sponsor resided at the Auburn property.[30]
[29] CB698, [61]
[30] CB698, [62]
Third, the Tribunal referred to the sponsor travelling to China on three occasions with his ex-wife, and to the applicant travelling to China without the sponsor. The Tribunal said that “repeated travel with an ex-wife is merely circumstantial”, and did not necessarily prove that the sponsor’s relationship with his ex-wife is continuing.[31] The Tribunal considered, however, that “it stretches credulity when looked at in conjunction with the fact that” the applicant also travelled to China without the sponsor.[32]
[31] CB699, [66]
[32] CB699, [66]
Fourth, the Tribunal found some of the passenger cards to be “problematic”.[33] The Tribunal noted that, during the first hearing, the sponsor said his children completed the cards. The sponsor subsequently conceded, however, that the sponsor’s ex-wife completed the passenger movement cards. The Tribunal found it implausible that the sponsor’s ex-wife “would not have simply asked [the sponsor] where he lived when filling in the cards”.[34]
[33] CB699, [67]
[34] CB699, [67]
Fifth, the Tribunal found “curious” a number of financial transactions.[35] The Tribunal referred to the sponsor withdrawing $21,000 in cash shortly after the applicant was granted a Provisional partner visa. That appears to be a reference to the withdrawal of $21,000 on 17 October 2011 from an account the sponsor held at the Commonwealth Bank of Australia (sponsor’s CBA account).[36] The bank statement records that on 27 July 2011, $20,000 was transferred into the sponsor’s CBA account. The Tribunal said the “financial arrangements appear to be consistent with a scenario where [the sponsor] will be paid money for his part in the visa application”. The Tribunal noted, however, the applicant was “adamant” there was no financial inducement to sponsor the applicant’s visa application.[37] The Tribunal had earlier recorded the applicant stated that the sponsor withdrew the $21,000 to give to his son as a deposit to purchase a property.[38]
[35] CB699, [68]
[36] CB505
[37] CB699, [68]
[38] CB697, [46]
The Tribunal found that a number of matters taken in isolation – the financial transactions, the applicant’s adverse migration history, the sponsor’s travels to China with his ex-wife, and the applicant’s travel without the sponsor – did not prove the current relationship was contrived.[39] The Tribunal also accepted that the landlord’s evidence of misunderstanding was plausible.[40] The Tribunal, however, considered it significant there were two items of what it called “contemporaneous evidence” that the applicant and the sponsor were not cohabiting.[41] The evidence was the matters disclosed in the Site Visit Report, and the return passenger cards. The Tribunal considered these items to be “compelling evidence that at that particular time the parties were not cohabitating, notwithstanding the recent statutory declarations”.[42]
[39] CB699, [69]
[40] CB699, [69]
[41] CB699, [70]
[42] CB699, [70]
The Tribunal then expressed its overall conclusion as follows:[43]
It is the combination of the above that is problematic. There are a number of circumstantial concerns. One or two of these concerns may be plausible but it is the number of concerns that stretch credulity, particularly in light of the evidence that the parties were not cohabitating. In summary the tribunal is not prepared to find that [the applicant and the sponsor] are credible witnesses when it comes to evidence about their relationship.
In this case it is not one thing in particular that is determinative. The Tribunal acknowledges that it has been presented with a variety of evidence in support of an ongoing spousal relationship. However the tribunal thinks that the combination of the above concerns is overwhelming.
[43] CB700, [71]-[72]
Grounds of application
The amended application on which the applicants rely contains three grounds.
a)The Tribunal failed to have regard to, or make findings on, the circumstances of the applicant’s relationship with her sponsor as required by reg.1.15A(3)(a), (b), and (c) of the Regulations. In other words, the applicant claims the Tribunal did not have regard to, and made no findings about the financial aspects of the relationship, the nature of the household, and the social aspects of the relationship.[44]
b)The Tribunal failed to make a finding of cohabitation as at the day of decision.[45]
c)In concluding the applicant was not the spouse of the sponsor, the Tribunal took into account evidence that was not logically probative of its finding that the applicant was not the spouse of her sponsor, that evidence being the observations of the Departmental officers recorded in the report they prepared of their visit to the Auburn property, and the addresses recorded in passenger cards that had been completed in connection with the sponsor’s trips to China.[46]
[44] Paragraph (a) of particulars to ground 1
[45] Paragraph (b) of particulars to ground 1
[46] Ground 2; Applicants’ Outline of Submissions, [45]
Failure to have regard to reg.1.15A(3)(a), (b), and (c)
The applicants do not submit the Tribunal did not refer to the matters identified in reg.1.15A(3)(a), (b), and (c) of the Regulations. The applicants accept the Tribunal adverted to these matters. The applicants submit, however, the Tribunal did not give them a proper, genuine, and realistic consideration. They submit the Tribunal did no more than pay “lip service” to those matters.[47]
[47] Applicants’ Outline of Submissions, [37] referring to Islam v Cash [2015] FCA 815 at [14] (Flick J)
I do not accept that submission. First, the Tribunal was aware of the statutory definition of “spouse” provided for in s.5F of the Act, of the elements of that definition specified in s.5F(2)(a)-(d) of the Act, and of the requirement that, in forming an opinion as to the matters specified in s.5F(2)(a)-(d) of the Act, the Tribunal must have regard to all of the circumstances of the relationship, including evidence of the financial and social aspects, the nature of the household, and their commitment to each other, as set out in r.1.15A(3) of the Regulations, the terms of which the Tribunal annexed to its reasons for decision.[48]
[48] CB698, [56]; CB701
Second, the Tribunal found that the evidence that was before it, “if accepted at face value”, established the applicant and the sponsor “are in a spousal relationship”.[49] That is:[50]
They claim to have an intertwining of financial affairs, they have a joint bank account, they claim to cohabitate, they have provided evidence from family and others attesting to the relationship and that both claim that they provide each other with companionship and emotional support and both indicate that the relationship is a long term.
[49] CB698, [56]
[50] CB698, [56]
This passage by itself indicates the Tribunal was aware of the evidence the applicants had provided in support of their claim that they were in a genuine spousal relationship, and that the Tribunal considered that material in sufficient detail to enable it to conclude that, “on its face”, the material showed such a relationship. And it is clear from the Tribunal’s reasons the Tribunal did have regard to that evidence.[51] The Tribunal, however, was obliged to consider “all of the circumstances of the relationship”. Those circumstances went beyond the matters on which the applicants relied. They included the circumstances on which the Tribunal relied for concluding it was not satisfied there was a genuine and continuing spousal relationship between the applicant and the sponsor, notwithstanding that, “on its face”, the material on which the applicants relied did show such a relationship.
[51] The relevant passages have been identified by the Minister – see First Respondent’s Outline of Submissions at [17]-[19], [21], and [22]
In my opinion, the reasoning by which the Tribunal arrived at its overall conclusion cannot fairly be characterised as paying “lip service” to the factors identified in reg.1.15A(3)(a), (b), and (c) of the Regulations. The Tribunal arrived at its conclusion after weighing all of the relevant circumstances that were before it.
This part of the applicants’ claims, therefore, fails.
Failure to make cohabitation finding as at date of decision
The applicants submit the Tribunal failed to consider whether the applicant and the sponsor cohabitated as at the date of its decision. The basis of that submission is that the Tribunal particularly relied on what it described as the contemporaneous evidence of the Site Visit Report, and the return passenger cards that had been completed in 2010 and 2012. The applicants submit that the contemporaneous evidence related to events that occurred years before the date of the Tribunal’s decision.
This ground appears to assume the Tribunal was required to make a finding about whether the applicant and the sponsor were cohabitating as at the date the Tribunal made its decision. That assumption is incorrect. The ultimate question the Tribunal was required to consider and answer was whether, as at the time of decision, the applicant was the “spouse” of the sponsor within the meaning of s.5F of the Act, having regard to the matters specified in reg.1.15A of the Regulations, one of those matters being whether the relationship between the applicant and the sponsor was genuine and continuing. In concluding it was not satisfied the applicant was the spouse of the sponsor, the Tribunal considered and answered whether the relationship between the applicant and the sponsor was genuine and continuing; and the Tribunal answered that question in the present tense, that is, as at the time of decision.
Perhaps the applicants’ intended submission is that it was not reasonably open to the Tribunal to rely on events and states of affairs that occurred or existed eighteen months and more before the Tribunal decided the applicants’ case. If that is the intended submission, I do not accept it. The ultimate question for the Tribunal was whether the applicant and the sponsor were in a spousal relationship. A relationship is something that exists over time. If it was reasonably open for the Tribunal to find that, at a given point in time there was evidence that pointed to the relationship between the applicant and the spouse not being genuine, then it was reasonably open to the Tribunal to infer, at least in the absence of evidence that contradicted or undermined the evidence on which the Tribunal relied, that the state of affairs continued after that point in time.
This part of the applicants’ claims, therefore, fails.
Irrationality
The applicants claim the Tribunal acted irrationally by taking into account the Site Visit Report and the incoming passenger cards. The applicants rely on FTZK v Minister for Immigration and Border Protection.[52] Before I set out the applicants’ submissions, it will be necessary to consider the judgments in that case.
[52] [2014] HCA 26; (2014) 88 ALJR 754
FTZK
In FTZK the question was whether the Administrative Appeals Tribunal (AAT) made a jurisdictional error in concluding that Art.1F(b) of the Refugees Convention[53] applied to the appellant in that case. That article provides that the Refugees Convention does not apply “to any person with respect to whom there are serious reasons for considering . . . he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee”. The issue was whether, in concluding it was satisfied there were serious reasons for considering that the appellant committed a serious crime in China, the AAT made a jurisdictional error.
[53] Being the Convention Relating to the Status of Refugees 1951 as amended by the 1967 Protocol Relating to the Status of Refugees.
In its reasons for decision, the AAT identified a number of items of evidence it considered to be relevant to whether there were serious reasons for considering whether the appellant in that case had committed a serious non-political crime outside Australia. The AAT said it was satisfied there were serious reasons for concluding the appellant in that case had committed a serious non-political crime based on the “totality of the evidence” it had identified. The Tribunal noted, however, that “[a]ny one of the various factors would not have been sufficient to establish serious reasons”, but that it was “the combination of factors which gives rise to reasons of sufficient seriousness to satisfy Article 1F of the Convention”.[54]
[54] [2014] HCA 26; (2014) 88 ALJR 754 at [6]
In three separate reasons for judgment, the High Court held the AAT did make a jurisdictional error. First, there is the judgment French CJ and Gageler J.[55] Their Honours noted that because the AAT found that no one of the evidentiary items it identified was sufficient to engage Art.1F(b) of the Refugees Convention, the AAT’s ultimate conclusion that Art.1F(b) was engaged was “critically dependent upon the existence of a rational connection between its findings of fact taken in combination and the commission by the appellant of the alleged crimes”.[56] Their Honours found, however, that the AAT demonstrated no logical connections between its findings of fact and its conclusion that Art.1F(b) had been engaged. Their Honours further held, therefore, that the AAT made a jurisdictional error because the AAT’s “process of reasoning did not comply with the logical framework imposed on its decision-making by Art 1F(b)”; and the AAT “did not respond to the question it was required to ask in order to determine whether Art 1F(b) applied”.[57]
[55] [2014] HCA 26; (2014) 88 ALJR 754 at [1]-[21]
[56] [2014] HCA 26; (2014) 88 ALJR 754 at [18]
[57] [2014] HCA 26; (2014) 88 ALJR 754 at [19]
Hayne J identified four factors on which the AAT relied for concluding there were serious reasons for considering the appellant had committed a crime.[58] His Honour found that none of the second, third, or fourth factors “could support” that conclusion, and the AAT’s relying on those factors shows it must have misconstrued the expression “serious reasons for considering”.[59] In a passage on which the applicants before me rely, Hayne J said:[60]
As already indicated, none of the three other factors relied on by the Tribunal could, in the circumstances of this case, logically support the conclusion which the Tribunal reached. Each of those factors was as consistent with the appellant's innocence of the crimes alleged as it was with his guilt. Each could support the conclusion which the Tribunal reached only if, considered separately or in conjunction with other matters, the appellant, by that conduct, impliedly admitted guilt of the crimes alleged. But once it is recognised that the appellant was found to have a well-founded fear of persecution for a Convention reason, his departure from China, his telling lies to obtain the first visa he obtained and his telling lies or giving evasive testimony in connection with his application for a protection visa are as readily explained by his desire to escape from China for innocent reasons as they would be by a desire to run away from the scene of a crime. Likewise, his attempt to escape from immigration detention might be thought to bespeak a disregard for authority and a willingness to break Australian immigration law. But neither of those conclusions bears upon whether there are serious reasons for considering that he has committed kidnapping and murder.
[58] [2014] HCA 26; (2014) 88 ALJR 754 at [27]-[30]
[59] [2014] HCA 26; (2014) 88 ALJR 754 at [31]
[60] [2014] HCA 26; (2014) 88 ALJR 754 at [39]
Hayne J appeared to accept that one of the four factors on which the AAT relied, namely, that the authorities of the relevant foreign state alleged the appellant in that case had committed crimes, could have supported a conclusion that there were serious reasons for considering that the appellant had committed a crime; but only as a starting point.[61] His Honour, however, appears to have given this factor no further significance because the AAT concluded that, standing alone, that the making of the allegation by public officials, even when coupled with incriminating statements by alleged co-offenders, did not provide serious reasons for considering that the appellant in that case had committed the alleged crimes.[62] In any event, Hayne J concluded that the matters on which the AAT relied for concluding there were “serious reasons for considering” the appellant had committed a crime were not logically probative of the appellant’s having committed the crimes, and “because they were not logically probative of the appellant’s having committed the crimes alleged, and because they therefore could not be a reason for considering that he had done so, the Tribunal’s reliance upon them must show that the Tribunal misconstrued the test it had to apply”.[63]
[61] [2014] HCA 26; (2014) 88 ALJR 754 at [37]
[62] [2014] HCA 26; (2014) 88 ALJR 754 at [38]
[63] [2014] HCA 26; (2014) 88 ALJR 754 at [42] (emphasis in original)
Bell and Crennan JJ, on the other hand, held the AAT made a jurisdictional error because the “path by which the Tribunal reached its conclusion that the appellant fell within Art 1F(b) did not include any consideration of whether, and if so how, the lies and conduct relied upon were concerned with circumstances or events connected with one or more of the alleged crimes”.[64] The relevant jurisdictional error their Honours held the AAT made was its misconstruing its functions and powers under Art.1F(b) of the Refugees Convention to determine whether the appellant was excluded from Australia’s protection obligations;[65] and their Honours so held because, under Art.1F(b), the AAT was required “to ask of the evidence before it whether that evidence was probative of “serious reasons for considering” that the appellant had committed one or more of the alleged crimes”.[66]
[64] [2014] HCA 26; (2014) 88 ALJR 754 at [93]
[65] [2014] HCA 26; (2014) 88 ALJR 754 at [97]
[66] [2014] HCA 26; (2014) 88 ALJR 754 at [91]
The applicants’ submissions
The applicants submit the reasoning of the Tribunal in the case before me was analogous to that of the AAT in FTZK, and that the Tribunal, therefore, made a similar jurisdictional error to that which the High Court in FTZK held the AAT made. The applicants submit that, like the factors on which the AAT relied, the Tribunal found that the “first four elements”[67] it identified – the financial transactions, the applicant’s adverse migration history, the sponsor’s travels to China with his ex-wife, and the applicant’s travel without the sponsor – “were not, of themselves, capable of proving that the applicant was not in a genuine spousal relationship with” the sponsor.[68] And each of the two other matters on which the Tribunal relied – the Site Visit Report and the incoming passenger cards – were of minor relevance and, in any event by themselves were not determinative,[69] as the Tribunal itself recognised.[70]
[67] Applicants’ Outline of Submissions, [45]
[68] Applicants’ Outline of Submissions, [45]
[69] Applicants’ Outline of Submissions, [45]
[70] Applicants’ Outline of Submissions, [45]
The Minister, on the other hand, submits the Tribunal was entitled to consider the totality of the evidence.[71] In his oral submissions, counsel for the Minister also submitted FTZK was not authority for the principle that a tribunal, acting rationally, could not rely on the combined effect of a series of factors to make a finding in circumstances where none of the factors, considered on its own, would be sufficient to support such finding.[72]
[71] First Respondent’s Outline of Submissions, [28]
[72] T26.45
Whether or not the Tribunal made the same error as the AAT was found to have made in FTZK depends on the proper characterisation of the Tribunal’s reasoning in the case before me, and whether anything said in any of the judgments in FTZK casts doubt on the legitimacy of the reasoning which the Tribunal applied.
Characterisation of Tribunal’s reasoning
The Tribunal considered there were two potential and incompatible hypotheses available on the evidence before it. One was the hypothesis the applicants urged, namely, that the applicant and the sponsor were in a spousal relationship. As I have already noted, the Tribunal accepted that, on its face, the evidence on which the applicants relied supported that hypothesis. The competing hypothesis was that the documentary and testimonial evidence on which the applicants relied was contrived. The Tribunal identified four items of evidence, which it characterised as circumstantial, and two items of evidence, which it characterised as contemporaneous (although in fact also circumstantial), as giving rise to the possibility of the competing hypothesis. The Tribunal considered that each of these items of evidence by itself was insufficient to support the hypothesis that the applicants’ claims were contrived. The Tribunal was satisfied, however, that, when considered as a whole, the combined effect of each item of evidence on which it relied did give rise to the hypothesis that the applicants’ evidence and claims were contrived, or, at the very least, satisfied the Tribunal that the probabilities of such hypothesis being true were of such degree as to prevent the Tribunal from being satisfied the applicant was in a spousal relationship with the sponsor. In my opinion, the Tribunal’s approach represents an orthodox application of principles that courts apply, and in criminal cases, direct juries to apply, to the assessment and weighing of circumstantial evidence.
The notion of “circumstantial evidence” has been defined in the context of criminal trials as “evidence of a basic fact or facts from which the jury is asked to infer a further fact or facts”, and is “traditionally contrasted with direct or testimonial evidence, which is the evidence of a person who witnessed the event sought to be proved.”[73] The nature and probative effect of circumstantial evidence was described by Pollock CB in R v Exall in the following charge to the jury:[74]
It has been said that circumstantial evidence is to be considered as a chain, and each piece of evidence as a link in the chain, but that is not so, for then, if any one link broke, the chain would fall. It is more like the case of a rope composed of several cords. One strand of the cord might be insufficient to sustain the weight, but three stranded together may be quite of sufficient strength.
[73] Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573 at [4] (Dawson J)
[74] R v Exall (1866) 4 F & F 922 at 929; 176 ER 850 at 853
As this passage indicates, the probative force of individual items of circumstantial evidence may be slight, yet, when considered in combination with other items of circumstantial evidence, their combined weight may be great. That point was also made by Lord Cairns LC in Belhaven and Stenton Peerage:[75]
[I]n dealing with circumstantial evidence, we have to consider the weight which is to be given to the united force of all the circumstances put together. You may have a ray of light so feeble that by itself it will do little to elucidate a dark corner. But on the other hand, you may have a number of rays, each of them insufficient, but all converging and brought to bear upon the same point, and, when united, producing a body of illumination which will clear away the darkness which you are endeavouring to dispel.
[75] (1875) 1 App Cas 278 at page 279
Consequently, it has been said that “it is not correct to consider each item of circumstantial evidence in isolation from others; the proper approach is to consider the weight of the combination of proven facts and determine whether the combined weight of those facts supports the relevant inference, as a matter of probability”.[76] Stated another way:[77]
[T]he question is not whether each of the circumstances individually proves the existence of the alleged arrangement or understanding. Rather, the issue is whether all of the circumstances taken together do so. To approach the matter on any other basis destroys the integrity of the circumstantial case.
[76] Bennett v Repatriation Commission [1997] FCA 485; (1997) 45 ALD 491 at page 497 (Heerey J referring to Transport Industries Insurance Co Ltd v Longmuir [1997] 1 VR 125)
[77] Australian Competition and Consumer Commission v Air New Zealand Limited [2014] FCA 1157 at [481] (Perram J)
On the basis of these principles, the Tribunal was not, as the applicants appear to submit, obliged to be satisfied that each of the items of circumstantial evidence on which it relied was capable of establishing the applicant and the sponsor were not in a spousal relationship before it could rely on those items of evidence not to accept the applicant and sponsor were in such a relationship. It was reasonably open to the Tribunal to consider, as it did, the combined effect of that evidence.
Does FTZK apply to Tribunal’s reasoning?
The next question is whether there is anything any of the justices held or said in FTZK that can be said to cast doubt on the lawfulness of what I have noted to be the orthodox manner in which the Tribunal assessed and weighed the circumstantial evidence on which it relied in concluding it was not satisfied the applicant and the sponsor were in a spousal relationship. In my opinion, that question is to be answered in the negative.
Turning first to the judgment of French CJ and Gageler J, the error their Honours found the AAT made was not that it relied on a number of factors, none of which the AAT accepted was capable of establishing the ultimate question it was required to decide; the error was the AAT’s reasoning did not demonstrate any logical connection between the findings on which it relied and the ultimate finding it made. Crennan and Bell JJ gave similar reasons for concluding the AAT made a jurisdictional error; their Honours held the AAT did not identify the “path by which the Tribunal reached its conclusion that the appellant fell within Art 1F(b) did not include any consideration of whether, and if so how, the lies and conduct relied upon were concerned with circumstances or events connected with one or more of the alleged crimes”.[78]
[78] [2014] HCA 26; (2014) 88 ALJR 754 at [93]
The judgment of Hayne J raises different considerations. To some extent, his Honour’s judgment can be read as holding that the AAT fell into error because none of the factors on which it relied, considered alone, was capable of sustaining the AAT’s ultimate conclusion. There are, however, two matters to note. First, his Honour’s analysis was made in a specific statutory context – one in which the AAT had to be satisfied there were serious reasons for considering that the applicant committed a serious crime in China. That is a different question to the question the Tribunal in the case before me was required to answer. Second, it is not reasonably open to interpret Hayne J’s judgment as holding that, in the absence of a statutory provision to the contrary, it is not reasonably open to an administrative body, such as the Tribunal, when makings findings of fact, to apply long established principles as to the assessment and weighing of circumstantial evidence. His Honour does not refer to those principles or to any cases that deal with those principles.
In my opinion, there is nothing in any of the judgments in FTZK which supports the conclusion that it was not reasonably open to the Tribunal in the case before me to rely on the combined effect of a number of factors in concluding it was not satisfied the applicant and the sponsor were in a spousal relationship where none of those factors, considered alone, was sufficient to enable the Tribunal to so conclude. The Tribunal expressly or impliedly identified the potential relevance of each of the items of circumstantial evidence on which it relied; and it was reasonably open to the Tribunal to consider each item to be relevant.
In particular, it was reasonably open to the Tribunal to:
a)treat with caution the evidence of the applicant, given that the applicant had previously lied in connection with her attempts to obtain a protection visa;
b)consider the landlord’s not recognising the name of the sponsor to be relevant because, had the sponsor in fact lived at the Auburn Property, it is reasonable to expect that the landlord would have known the name of his tenants;
c)interpret the Site Visit Report as recording limited evidence of cohabitation;
d)consider relevant the sponsor’s having travelled on three occasions to China, not only alone, but also (with the exception of one trip from Australia to Shanghai) with his ex-wife, and the applicant herself having travelled alone to China, because it was open to the Tribunal to consider it unlikely that a person, such as the sponsor, who claims to be in a genuine relationship with a person, travels overseas on three occasions, not with the person he claims to be his wife, but with the person’s ex-wife;
e)consider relevant the sponsor’s having on two out of three occasions signed a passenger card which showed as his address an address that was different from the one at which he claimed he cohabited with the applicant, because it was reasonably open to the Tribunal that a person does not sign passenger cards which record an address different from the one at which the person resides; and
f)consider relevant the sponsor withdrawing $21,000 from his bank account shortly after the applicant was granted a Provisional partner visa, because it was reasonably open to be viewed as consistent with the sponsor having been given a financial incentive to marry the applicant.
Conclusion of ground based on irrationality
There is one final matter to note. I have assumed that the question whether it was reasonable for the Tribunal to rely on the combined effect of the factors on which it did rely for not being satisfied the applicant and sponsor were in a spousal relationship, in circumstances where no one of those factors was sufficient to give rise to such non-satisfaction, is to be answered by whether what the Tribunal did conformed with the well-established principles concerning the assessment and weighing of circumstantial evidence courts apply and direct juries to apply when assessing and weighing circumstantial evidence. In my opinion, that assumption is warranted.
The principles concerning the assessment and weighing of circumstantial evidence articulate what courts have understood to be the logic of circumstantial evidence as a means of proving facts, and the permissible means by which fact finders may rationally find facts on the basis of such evidence. Given that the Tribunal, as the repository of a power to review decisions, is under a duty to exercise that power reasonably and rationally, it follows that, by applying the principles of circumstantial evidence I have discussed in these reasons for judgment, the Tribunal acted reasonably and rationally.
This part of the applicants’ claims, therefore, also fails.
Conclusion and disposition
I propose to order that the application be dismissed. I also propose to order that the Administrative Appeals Tribunal be substituted for the Tribunal as the second respondent.
I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Date: 11 November 2016
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