Hosain v Minister for Immigration
[2020] FCCA 306
•20 February 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HOSAIN v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 306 |
| Catchwords: MIGRATION – Application for review of decision of the Administrative Appeals Tribunal (Tribunal) – whether the Tribunal failed to consider a claim or an integer of a claim – whether the Tribunal failed to exercise its jurisdiction – whether the Tribunal considered the relevant criteria set out at regulation 1.15A of the Migration Regulations 1994 (Cth) – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5F, 476 |
| Cases cited: He v Minister for Immigration and Border Protection [2017] FCAFC 206; (2017) 255 FCR 41; (2017) 161 ALD 17 |
| Applicant: | MD. ALTAB HOSAIN |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2416 of 2016 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 11 February 2020 |
| Date of Last Submission: | 11 February 2020 |
| Delivered at: | Sydney |
| Delivered on: | 20 February 2020 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondents: | Mr G. Johnson |
| Solicitors for the Respondents: | HWL Ebsworth Lawyers |
ORDERS
The application made on 8 September 2016 and amended on 27 February 2017 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $7206.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2416 of 2016
| HOSAIN |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTUAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 8 September 2016 and amended on 27 February 2017, seeking review of the decision of the Administrative Appeals Tribunal (“the Tribunal”) which, on 15 August 2016, affirmed the decision of the Minister’s delegate (“the delegate”) to refuse a Partner (Temporary) (Class UK) subclass 820 visa (“the visa”) to Mr MD Altab Hosain.
The evidence before the Court is contained a bundle of relevant documents filed and tendered by the Minister (“the Court Book” – “CB”, “RE1”).
Background
Mr Hosain is a citizen of citizen of Bangladesh (CB 2). He arrived in Australia for the purpose of studying here ([9] at CB 347). He made his application for the Partner (Temporary) (Class UK) subclass 820 and Partner (Residence) (Class BS) subclass 801 visas (“the visas”) which was received by the Minister’s department on 17 June 2014 (CB 1–CB 63). Mr Hosain made his application on the basis of his relationship with his sponsor, Ms Ama Pokuah, an Australian permanent resident. Mr Hosain attached a marriage certificate dated 27 May 2014 to his visa application (CB 53). Mr Hosain provided further documents to the Minister’s department which included Statutory Declarations from himself and Ms Pokuah (see CB 76–CB 111 and particularly CB 95–CB 96).
The delegate refused the application for the visas on 8 July 2015 (CB 112–CB 128). The delegate refused Mr Hosain’s application for the visa on the basis that he did “not meet any of the subclauses 820.211(2), (5), (6), (7), (8) or (9)” as required by cl.820.211(1) of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”) (CB 119.4).
The delegate was not satisfied that the applicant and sponsor:
(i)pooled financial resources or shared “any day-to-day financial responsibilities” (CB 117);
(ii)“have established a joint household” (CB 118);
(iii)provided sufficient information to demonstrate that they are regarded by others as being in a spousal relationship (CB 118) and
(iv)despite being married, are not committed “to a shared life together” (CB 119).
The delegate concluded that the evidence provided did not sufficiently demonstrate that the applicant and sponsor were spouses under s.5F of the Act. The delegate refused the grant of the visa as they were not satisfied that the applicant met the requirements of cl.820.211(1) of Schedule 2 to the Regulations.
The Tribunal
Mr Hosain applied for review to the Tribunal on 23 July 2015 (CB 129–CB 130). That application sought review of the delegate’s decision to refuse him a Partner (Residence) (Class BS) subclass 801 visa. Mr Hosain provided further documents to the Tribunal on 11 July 2016 and 22 July 2016 including statements from family and friends (CB 159–CB 310).
The applicant was invited to, and attended, a hearing before the Tribunal on 28 July 2016 (CB 149–CB 153 and CB 315–CB 317). Ms Pokuah and Ms Esther Osei Bonsu (the sponsor’s mother) also gave evidence at the Tribunal hearing (CB 315).
On 29 July 2016, the Tribunal wrote to the applicant through his representative, providing him with the opportunity to comment or respond in writing to the below issues identified by the Tribunal (CB 319–CB 324):
(i)Inconsistencies in the applicant’s and sponsor’s evidence concerning the first time they met and when they became engaged.
The Tribunal emphasised, that this information was important as it could cause the Tribunal to find that the applicant fabricated evidence (CB 320–CB 321).
(ii)The sponsor’s lack of knowledge about the applicant’s study.
The Tribunal highlighted that this information could indicate that the couple did not view their relationship as being long term (CB 321).
(iii)The applicant’s and sponsor’s lack of knowledge concerning the others’ finances.
The Tribunal indicated that this information could cause the Tribunal to place little weight on the documentary evidence provided, such as those that indicate they have a joint bank account (CB 321–CB 322).
(iv)Lack of knowledge about each other’s families.
The Tribunal emphasised that this could show “very little interest in each other’s families” and thus, that they are not mutually committed to the relationship (CB 322–CB 323).
(v)Sponsor’s lack of knowledge about the applicant’s work and applicant’s lack of knowledge about sponsor’s course and her brother’s whom they live with.
The Tribunal highlighted that this information could demonstrate that although the couple live together, they do not have a “joint household” (CB 323).
On 12 August 2016, the applicant’s migration agent responded to the above information on behalf of the applicant. The response included, Statutory Declarations of both the applicant and sponsor dated 12 August 2016, evidence of the couples’ joint bank account, documents indicating the residential address of the applicant, and a psychologist’s report addressing Mr Hosain’s and the sponsor’s mental health (CB 325–CB 341).
The Tribunal affirmed the delegate’s decision on 15 August 2016 (CB 343–CB 353). The Tribunal noted that Mr Hosain’s application sought review of the decision to refuse him a Partner (Residence) (Class BS) subclass 801 visa.
However, the Tribunal stated that “the primary decision essentially relat[ed] to the application for the [Partner (Temporary) (Class UK)] subclass 820 visa” and Mr Hosain would have also been “unable to obtain the [Partner (Residence) (Class BS)] subclass 801 visa before he [was] granted [a Partner (Temporary) (Class UK)] subclass 820 visa”. The Tribunal found that in the circumstances, Mr Hosain’s “intention” was to seek review of the decision to refuse him a Partner (Temporary) (Class UK) subclass 820 visa ([3] at CB 346).
On the basis of the marriage certificate, the Tribunal found that there was “nothing to indicate [that] the marriage [was] not valid” and was satisfied that Mr Hosain and Ms Pokuah were married for the purposes of s.5F(2)(a) of the Act ([7] at CB 347).
However, the Tribunal did not consider that the “substantial amount of documentary evidence” established a “genuine relationship” between Mr Hosain and Ms Pokuah, because “such documents and evidence [could] be obtained even if the relationship [was] not genuine” ([8] at CB 347).
The Tribunal was “concerned” about Mr Hosain’s immigration history and found that he and Ms Pokuah had “not been truthful in their evidence concerning the circumstances of their initial meeting”
([9]–[10] at CB 347). Mr Hosain’s and Ms Pokuah’s evidence contradicted each other, and their earlier Statutory Declarations attached to the application for the visas. The Tribunal also noted further “discrepancies about the circumstances in which the relationship developed” ([14] at CB 348).
The Tribunal found that Mr Hosain and Ms Pokuah were not “persons of credibility” and had “fabricated the evidence concerning the circumstances of their initial meeting and, having forgotten that story, created a different version in subsequent evidence” ([15] at CB 348). The Tribunal also had other concerns with Mr Hosain’s and Ms Pokuah’s evidence ([18] at CB 349). This included that they knew little about each other’s study, which the Tribunal found to be “significant” because this indicated that Mr Hosain and Ms Pokuah “do not plan their future together and do not view their relationship as a long term one”
([18]–[19] at CB 349).
Despite evidence as to the financial aspects of the relationship provided to the Tribunal, the Tribunal found that Mr Hosain and Ms Pokuah did “not have adequate knowledge about each other’s financial arrangements and [did] not discuss their financial arrangements” ([20] at CB 349). The Tribunal outlined a number of concerns in this regard ([20] at CB 349–CB 350).
Despite documentary evidence, and acknowledging that “those [other people] who presented evidence [had] expressed their belief that the relationship [was] a genuine one”, the Tribunal found that Ms Hosain and Ms Pokuah had “little knowledge about each other’s families and little interest in the matter” ([22]-[23] at CB 350). The Tribunal based its findings on Mr Hosain’s and Ms Pokuah’s oral evidence to the Tribunal ([23] at CB 350–CB 351). This indicated to the Tribunal a lack of mutual commitment to the relationship, and that Mr Hosain and Ms Pokuah did not view it as a long term one ([24] at CB 351).
The Tribunal also found that Mr Hosain and Ms Pokuah lacked knowledge of each other’s “circumstances”, although they claimed to have established a joint residence and cohabitation ([25] at CB 351–CB 352). This included that Ms Pokuah did not know the name of Mr Hosain’s employer, and inconsistent evidence as to the family’s daily routine.
Although the Tribunal was prepared to accept that Mr Hosain and Ms Pokuah lived at the same address, the Tribunal found that “they arranged to live together for the duration of the visa processing and for the benefit of [Mr Hosain’s] visa application” and therefore had not established a “joint household” ([26] at CB 352).
The Tribunal was also not satisfied with Mr Hosain’s and Ms Pokuah’s response to the letter of 29 July 2016 sent to them after the hearing. Mr Hosain and Ms Pokuah provided medical evidence to the Tribunal indicating that they both suffered from “depression and mental health issues which have affected their memories” ([27] at CB 352).
However, the Tribunal had a number of concerns with the medical evidence, including that Mr Hosain and Ms Pokuah only consulted a medical practitioner after the Tribunal hearing and receipt of the 29 July 2016 letter. Further, the Tribunal found that “the self-reported diagnosis of stress and depression and memory loss…to be self-serving and of little probative value” ([27] at CB 352).
The Tribunal found that although there were “aspects of [the] relationship that point[ed] to its genuine nature”, Mr Hosain and Ms Pokuah were not credible witnesses and “[h]aving regard to all the circumstances of [the] relationship”, they did not “have a mutual commitment to a shared life as husband and wife to the exclusion of all others” and therefore did not meet cl.820.211 of Schedule 2 to the Regulations ([30] at CB 353).
Statutory Scheme
The subclass of visa for which the applicant applied was a subclass 820 visa. I note that, relevant for current purposes, the applicant was required to meet the criteria in cl.820.211(2)(a) of Schedule 2 to the Regulations:
“(2) An applicant meets the requirements of this subclause if:
(a) the applicant is the spouse or de facto partner of a person who:
(i) is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and
(ii) is not prohibited by subclause (2B) from being a sponsoring partner”.
Section 5F of the Act relevantly defines a spouse as:
“(1) For the purposes of this Act, a person is the spouse of another person if, under subsection (2), the 2 persons are in a married relationship.
(2) For the purposes of subsection (1), 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:
(i) live together; or
(ii) do not live separately and apart on a permanent basis.
(3) 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 may make different provision in relation to the determination for different purposes whether one or more of those conditions exist.”
Regulation 1.15A(3) of the Regulations sets out what needs to be taken into consideration in determining the existence of a spousal relationship:
“(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.”
Before the Court
Mr Hosain made his application to the Court on 8 September 2016. The parties first appeared before a Registrar of the Court on 1 December 2016 and various orders were made, including that Mr Hosain be given the opportunity to file any amended application and further evidence by way of affidavit, and that Mr Hosain and the Minister file written submissions. Mr Hosain filed his amended application with the Court on 27 February 2017. Mr Hosain filed no written submissions. The Minister filed written submissions on 3 February 2020. The parties also appeared before a Registrar of the Court on 13 April 2017 on that date, the matter was listed for final hearing.
The grounds of the amended application to the Court are in the following terms:
1. The Tribunal failed to exercise its jurisdiction by failing to consider all aspects of my claims.
2. I legally got married and living with my wife.
3. I want to live with my wife in my whole life.
Mr Hosain appeared in person at the hearing. He had the assistance of an interpreter in the Bengali language. He confirmed that he had no evidence to put before the Court and sought to rely on the grounds of the amended application.
Consideration
Ground 1 lacks meaningful particularity. It asserts a failure to exercise its jurisdiction because the Tribunal is said to have failed to consider all aspects of the applicant’s claims.
In his submissions before the Court, Mr Hosain explained ground 1 as follows. Before the Tribunal he was “mentally sick”. As a result he was not able to give a proper explanation to the Tribunal about his circumstances and to make his claims. He gave relevant documentation to the Tribunal, but it nevertheless “dismissed his case”.
As set out above Mr Hosain and his sponsor Ms Pokuah gave evidence at a hearing before the Tribunal on 28 July 2016. Mr Hosain’s migration agent was also present (CB 315).
There is no transcript of the hearing in evidence before the Court. Mr Hosain was given the opportunity to provide such a transcript by orders made by a Registrar of the Court. He did not do so.
The only evidence available to the Court of what occurred at the Tribunal hearing are the references to what was discussed as set out in the Tribunal’s decision record.
It became clear at the Tribunal hearing (see for example [10]–[12] and [16]–[18] of the decision record) that “significant inconsistencies” and contradictions emerged as within both the evidence of Mr Hosain and Ms Pokuah, and as compared to each other. Further, a number of concerns emerged about other aspects of Mr Hosain’s evidence, including his reasons as to why he ceased studying (see [9] at CB 347).
Mr Hosain sought to explain this at the Tribunal hearing. The Tribunal reports ([11]–[12] at CB 347–CB 348):
“11. The applicant repeatedly informed the Tribunal that the sponsor is confused and scared and nervous. The Tribunal has made allowances for nervousness and the novelty of experience of giving evidence but the Tribunal is not convinced that such significant inconsistencies about important events arose due to nervousness or confusion. The Tribunal is also mindful that the parties provided written statements about these events and had the opportunity to refresh their memories prior to the hearing.
12. The applicant suggested in his oral evidence to the Tribunal that they did the initial statements on their own and did not have a lawyer but the Tribunal is not convinced that a lawyer is required for the parties to be able to describe their own experiences. The applicant repeatedly told the Tribunal that he was at the party when he went out to meet the sponsor but that is not an issue. The issue is not whether the applicant himself attended the party but whether he and the sponsor met at the party. In the Tribunal's view, it is significant that the applicant claims the sponsor never attended that party while the sponsor suggested that she did.”
Following the hearing the Tribunal wrote to Mr Hosain by letter dated 29 July 2016 (CB 319–CB 324). The letter invited his comments on, or response to, certain information which the Tribunal considered would be the reason or a part of the reason for affirming the delegate’s decision.
The Tribunal provided clear particulars of the information and made clear that its relevance was that it may lead to a finding that Mr Hosain and Ms Pokuah were not truthful in their evidence and were not persons of credibility. The Tribunal indicated that this could lead to a finding that he had fabricated his evidence, and that this may be relevant to the assessment of the matters set out at reg.1.15A(3) of the Regulations.
In essence, the information related to the documentary and oral evidence given by Mr Hosain and Ms Pokuah to the Tribunal.
It is also important to note given that the Tribunal was statutorily required to have regard to the matters set out at reg.1.15A(3), that the Tribunal’s letter made separate reference to different parts of the information before it as it related to each of the elements at reg.1.15A(3).
Mr Hosain responded by email sent by his migration agent which attached Statutory Declarations from Mr Hosain and Ms Pokuah and further documentation relating to bank accounts and a residential address (CB 325).
There was also a report from a Registered Psychologist reporting on an “initial assessment” of Mr Hosain’s and Ms Pokuah’s mental health and emotional circumstances (CB 341).
The Tribunal found that Mr Hosain provided a different explanation in relation to the difficulties with their evidence as revealed at the Tribunal hearing and as explained in the Tribunal’s letter ([13] at CB 348).
That “different explanation” was as stated in Mr Hosain’s Statutory Declaration (CB 326–CB 329) and Ms Pokuah’s Statutory Declaration (CB 331–CB 332), that the inconsistencies, contradictions and deficiencies in their evidence was due to their mental health issues (CB 326.2 and CB 331.2).
The Tribunal considered this explanation and the evidence Mr Hosain had provided in support of it ([27] at CB 352):
“27. In their post-hearing submission to the Tribunal, and in response to the Tribunal's s. 359A letter, the applicant and the sponsor claim they suffer from depression and mental health issues which have affected their memories. The Tribunal considers it problematic that the only time the applicant and the sponsor identified such issues, and provided medical evidence concerning their claimed depression, was in response to the Tribunal's concerns. The applicant is represented by an experienced migration agent and would have been (or should have been) made aware of the review process and the hearing process and, most significantly, of the desirability to identify any issues that may adversely affect their capacity to give evidence or recollect events. The fact that they had not done so suggests their claimed poor memory is nothing but a recent invention and an attempt to explain the problematic oral evidence. The Tribunal acknowledges that the parties have now provided medical evidence, including a report from a psychologist. It indicates that the couple consulted the psychologist for an initial assessment on 2 August 2016, that is, immediately after the Tribunal hearing and upon receipt of the Tribunal's s. 359A letter. In the Tribunal's view, if they genuinely had any concerns about their health, or their capacity to recollect matters, they would have sought professional help irrespective of their performance at the Tribunal hearing and not as a result of the Tribunal's concerns about their evidence. The timing of their decision to approach a health professional suggests it was done solely to prepare evidence to support the applicant's visa application and to explain the problems in their evidence. In such circumstances, the Tribunal considers the self-reported diagnosis of stress and depression and memory loss, including the completion of the self-reporting DASS questionnaire, to be self-serving and of little probative value. The Tribunal does not accept that the couple suffer from stress, depression or memory loss. The Tribunal is of the view that these assertions are made to the Tribunal and the health professional solely to assist the applicant in his visa application. The Tribunal is not satisfied that the deficiencies in the couple's evidence, identified above, were caused by poor memory, depression, stress or any other condition. In the Tribunal's view, such deficiencies represent the couple's lack of credibility and willingness to be untruthful in relation to matters discussed in their oral evidence.”
In light of this it cannot be said that the Tribunal failed to consider Mr Hosain’s claims, and in particular as he explained before the Court, the claim as to mental health difficulties.
Further, the Tribunal’s findings in this regard, and its conclusion that the deficiencies in the evidence of Mr Hosain and Ms Pokuah could not be satisfactorily explained by the mental health issues, was reasonably open to the Tribunal for the reasons it gave which were probative of the evidence before it.
Ground 1, as explained by Mr Hosain before the Court, is not made out.
As set out above, the Minister drafted and filed his written submissions prior to hearing from Mr Hosain as to the explanation, or particulars, to ground 1.
In what was clearly an attempt to give some meaningful particularity to the ground, the Minister’s written submissions, generously it must be said, addressed two points which he said could arise from the ground as stated.
That is, that the ground may have sought to assert that the Tribunal failed to consider the genuineness of Mr Hosain’s relationship with Ms Pokuah by reference to all of the factors stipulated in reg.1.15A and that the Tribunal failed to address all of Mr Hosian’s evidence.
The Minister’s comprehensive written submissions provide an analysis of the relevant statutory and regulatory requirements (s.5F of the Act, reg.1.15A(2) and (3), relevant authorities He v Minister for Immigration and Border Protection [2017] FCAFC 206; (2017) 255 FCR 41, Minister for Immigration and Border Protection v Angkawijaya (2016) 236 FCR 303, Li v Minister for Immigration and Citizenship (2008) 102 ALD 354; [2008] FCA 902 and Sun v Minister for Immigration and Border Protection [2017] FCA 1270) and the Tribunal’s consideration and analysis as against each of the factors it was bound to consider.
In this regard I note the Minister’s submissions at [19]–[35]:
“19. The Regulations make provision in relation to the determination of the matters set out in s.5F(2) in r.1.15A. Regulation 1.15A(2) provides that the Minister must consider all of the circumstances of the relationship, including the matters set out in sub regulation (3).
20. In He v Minister for Immigration and Border Protection [2017] FCAFC 206; (2017) 255 FCR 41 the Full Court of the Federal Court considered whether the requirement in reg. 1.15A(2) that the Minister ‘consider’ the matters set out in reg. 1.15A(3) meant that the Tribunal (standing in the shoes of the Minister) was required to make findings upon each of those matters: He, [45]. The Full Court at [52] held that that the matters set out in reg. 1.15A(3) are relevant considerations which the decision-maker is bound to consider, citing Minister for Immigration and Border Protection v Angkawijaya (2016) 236 FCR 303. Further, that as a consequence, the decision-maker was required to bring an active intellectual process to each of those matters. Whilst the Full Court was in agreement with earlier judgments of single judges of the Court (Li v Minister for Immigration and Citizenship (2008) 102 ALD 354; [2008] FCA 902 and Sun v Minister for Immigration and Border Protection [2017] FCA 1270) that it was necessary under reg. 1.15A(2), or its equivalent, to identify the pertinent or relevant circumstances of the relationship, the Full Court held at [59] that reg. 1.15A(3):
itself identifies each of the circumstances set out in the provision as being relevant to the decision and requires each of those circumstances to be considered.
21. The Full Court determined that the requirement that the Tribunal ‘consider’ the circumstances in reg. 1.15A(3) meant that the Tribunal was required to make findings upon each of the prescribed matters numbered with Roman numerals: [76]. The Court opined that the regulation posed the prescribed questions ‘in order to ensure that the Tribunal takes into account particular circumstances of the marriage as part of the active mental process involved in giving proper, genuine and realistic consideration to the prescribed matters’. However, the Full Court also said at [71] that:
As Reeves J recognised in Sun, Jessup J [in Li] did not suggest that it is necessary for the Tribunal to make a finding as to the existence or otherwise of every potentially relevant circumstance under reg 1.15A(2), but only to make any necessary findings of fact
22. Further, at [82] that:
The Tribunal’s reasons were not structured in a manner that formulaically addressed each of the relevant matters in turn, but they did not have to be: see Zhang at [20]. Further, as Charlesworth J said in Singh at [20], the impressionistic and evaluative nature of the Tribunal’s task must be taken into account when drawing implications from its reasons, and, further, such reasons are not to be construed minutely and finely with an eye attuned to the perception of error.
23. Notably, the outcome of the matter in He was that the Full Court determined that notwithstanding express findings having not been made with respect to each particular of the regulation, the Court was satisfied that read in context the Tribunal had considered the matters it was required to consider, and had in fact (inferentially) made findings about those matters.
24. The Minister submits that in the present case the Tribunal considered, in the sense that it intellectually engaged with, each of the matters prescribed in r.1.15A(3) of the Regulations. The Tribunal had regard to the financial aspects of the relationship, the nature of the household, the social aspects of the relationship and the nature of the persons’ commitment to each other.
25. The Tribunal considered the financial aspects of the relationship (r.1.15A(3)(a)) at [20]-[21], and referred expressly to the evidence that the couple operated a joint bank account, had arranged superannuation policies, and had paid for various expenses together. These findings, it is submitted, constituted regard having been given to the couple’s joint assets and liabilities and poling of financial resources (r.1.15A(3)(a)(i)-(iii)). Whilst it did not expressly refer to any evidence of legal obligations owed by one to the other, or the sharing of day to day expenses it should be inferred that this was in light of these having been no evidence as to these matters: see [10]-[11]; CB 476 and [29]-[31]; CB 479. It would be neither a failure to comply with the Regulations, nor a material error going to jurisdiction, if the Tribunal were found not to have considered a particular matter as required under r.1.15A(3) in circumstances where there was no evidence available to be considered on the relevant matters: Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431, [38]. Whilst the Full Court in He did not consider notions of materiality in that case, at [84] it did say:
Regulation 1.15A(3)(b)(ii) requires the Tribunal to consider the persons’ living arrangements. This imports a requirement to consider to their living arrangements throughout the marriage, so far as is revealed by the material before the Tribunal. [Emphasis added.]
26. Further, the Tribunal will not have fallen into jurisdictional error in failing to make findings about a topic required to be considered under the Regulations if there was before the Tribunal no (or no significant) evidence that could possibly have affected the outcome of the review: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 93 ALJR 252.
27. In relation to the nature of the household (r.1.15A(3)(b)), the Tribunal addressed these factors at [25]-[26]. In relation to the social aspects of the relationship (r.1.15A(3)(c)) the Tribunal addressed these matters at [22]-[23] including referring to evidence from friends and relatives, referring to the parties representing themselves as in married relationship, and accepting they engaged in social activities together.
28. In relation to the nature of the commitment to one another (r.1.15A(3)(d), the Tribunal addressed these matters at [25] and [29]. It referred to the duration of the relationship and the length of time during which the couple had lived together, noted that the couple did not discuss family affairs with one another, and found that they did not view the relationship as long-term. The Tribunal was not satisfied the couple provided each other with companionship and emotional support.
29. The Minister submits that the Tribunal properly took into account the relevant considerations under the Regulations.
30. In relation to the second aspect of the ground, to the extent that the applicant asserts that the Tribunal failed to consider the evidence presented to it by the applicant, that argument should also be rejected. In Nguyen v Minister for Immigration and Border Protection [2018] FCA 1374 the Federal Court found that in the circumstances of that case that the Tribunal had fallen into jurisdictional error in having failed to refer to (and hence consider) two statements from witnesses that that went directly to the criteria for the grant of the partner visa. A factual question that necessarily arose for the Court in that case was whether it ought to infer that the Tribunal had failed to give consideration to statements that were not expressly referred to. In that case, the Tribunal had made express reference to two other statements it had received, but there was no indication regard had been had to two additional statements.
31. In the present matter, whilst the Tribunal does not address individually each statement provided by the applicant. Rather, it refers to the statements at a broader level: at [10] and [22]. This, of itself, makes it difficult to draw a Nguyen-type inference that any single statement was overlooked. Further, and contrary to Nguyen, there is nothing in the content of any of the statements themselves (from the applicant, the sponsor, or the friends and family of the couple) that indicates the Tribunal failed to have regard to the statements. As addressed above, the Tribunal took into account the r.1.15A factors that it was required to consider, including factors that on the evidence weighed in favour of the couple.
32. The statements provided to the Tribunal from friends and relatives constituted ‘generic’ or conclusory statements of support and observations of the couple’s behaviour: see CB 206, 209, 212, 215, 218, 221, 224. The Tribunal’s reference globally to these statements at [22] is sufficient to indicate a genuine consideration of those documents, and to distinguish this matter from Nguyen. Notably, the Tribunal accepted the expression of belief of the witnesses that the relationship was a genuine one.
33. The Tribunal also referred to the parties’ own statements at [10] which can be taken to include the statements appearing at CB 161 and 164. The parties’ subsequent statements given after the hearing at CB 326 and 331 are referred to by the Tribunal at [28] and were not given any weight as the Tribunal preferred the contemporaneous evidence at the hearing which was ‘less practised’.
34. In all of the circumstances, and without reading the Tribunal’s decision with an eye attuned to error, the Tribunal did not fail to take into account the evidence submitted to it by the applicant in support of the genuineness of his spousal relationship with the sponsor.
35. No error as articulated in the first ground is made out.”
[Underlining Removed.]
[Error in the Original.]
The Tribunal’s analysis and findings speak for themselves. On the evidence before the Court I agree with the Minister’s submissions. No jurisdictional error is revealed even if Mr Hosain’s ground is given the wider particularity proposed by the Minister.
Ground 2 asserts that Mr Hosain legally married and lived with Ms Pokuah. Ground 3 asserts that he wants to live with her “in my whole life”.
Before the Court Mr Hosain repeated these assertions and submitted that he had provided what he regarded to be “enough” documentation and explanation to satisfy the Tribunal, but in spite of this the Tribunal dismissed his case.
Both grounds are mere assertions. Neither ground provides any meaningful articulation of jurisdictional error.
In relation to ground 2 as I sought to explain to Mr Hosain at the hearing having gone through a valid marriage (which the Tribunal accepted – see [7] at CB 347) and even living with Ms Pokuah, were not sufficient of themselves given the relevant statutory and regulatory scheme, to establish that he was the “spouse” of Ms Pokuah as that term is defined in the Act. No legal error is revealed by ground 2.
Ground 3 is an expression of future intent which in the circumstances does not articulate any jurisdictional error on the part of the Tribunal.
On the evidence before the Court, Mr Hosain was given the opportunity to satisfy the Tribunal that he met the relevant statutory and regulatory requirements for the grant of the visa. He was put on specific notice both at the Tribunal hearing and in its subsequent letter, of the Tribunal’s concerns with his and Ms Pokuah’s evidence and was given the opportunity to respond.
The Tribunal considered his response, but for the reasons given, found that the explanations provided by Mr Hosain for the difficulties with his evidence were not sufficient to explain those deficiencies. The Tribunal considered all of the evidence and claims made by Mr Hosain as against the mandatory regulatory requirements it was bound to consider. On the evidence, no jurisdictional error is indicated in the Tribunal’s decision.
Conclusion
None of the grounds of the amended application, nor the submissions in explanation, reveal jurisdictional error in the Tribunal’s decision. It is appropriate to dismiss the application. I will make that order.
I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Associate:
Date: 20 February 2020
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