Kanu v Minister for Immigration
[2018] FCCA 435
•2 March 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KANU v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 435 |
| Catchwords: MIGRATION – Review of administrative appeals decision – whether decision affected by jurisdictional error – jurisdictional error not established – application dismissed. |
| Legislation: Migration Act 1958 (Cth), s.5F Migration Regulations 1994 (Cth), reg 1.15A Federal Circuit Court Rules 2001, r.42.03 |
| Cases cited: Li v Minister for Immigration and Citizenship [2008] FCA 902 He v Minister for Immigration and Border Protection [2017] FCAFC 206 |
| Applicant: | MATILDA KANU |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | BRG 212 of 2017 |
| Judgment of: | Judge Vasta |
| Hearing date: | 19 February 2018 |
| Date of Last Submission: | 19 February 2018 |
| Delivered at: | Brisbane |
| Delivered on: | 2 March 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr Rebetzke |
| Solicitors for the Applicant: | GO TO COURT LAWYERS |
| Counsel for the Respondents: | Mr Byrnes |
| Solicitors for the Respondents: | SPARKE HELMORE |
ORDERS
That pursuant to r.42.03 of the Federal Circuit Court Rules 2001, leave be granted for the application to be filed out of time.
The application filed on 7 March 2017 and then amended on 19 October 2017 be dismissed.
The Applicant pay the First Respondent’s costs of and incidental to this application fixed in the sum of $7,328.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 212 of 2017
| MATILDA KANU |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex tempore)
Introduction
By application filed on 7 March 2017 and then amended on 19 October 2017 and then further amended on 19 February 2018, the Applicant, Matilda Kanu, asks this Court to review a decision of the Administrative Appeals Tribunal (“the AAT”). That decision affirmed a decision of the delegate of the Minister not to grant a spousal Visa to Gibrilla Kanu (“the husband”). The Applicant is the wife and sponsor of Mr Kanu.
History
The facts in this matter are somewhat unusual. The Applicant was born on 10 January 1969 in Freetown, Sierra Leone. The husband was born on the same date three years earlier. The Applicant and the husband were married in Sierra Leone on 24 April 1993.
The Applicant claims that the family home was located directly behind some military barracks in Freetown. While the husband was away at work in early January 1996, rebel forces entered the city of Freetown and fighting ensued.
The Applicant claims that the husband called her advising that he was unable to get home because of the fighting and told her that she needed to escape. The Applicant was able to escape and ended up in Guinea.
The Applicant said that she was registered as a refugee and she gave the embassy staff the details of the husband. She said she was informed that they were trying to locate him through the Red Cross.
The Applicant ended up in Gambia in 1996. The Applicant said she continued to search for or her husband during this time but she was unsuccessful.
In December 1998, the Applicant was resettled to Canada. Eventually she became a permanent resident of Canada.
The Applicant claims that, in 2005, the United Nations in Guinea contacted her to inform her that her husband was alive in Guinea. The Applicant claims that she continued to talk to him but that he was travelling from village to village and could not be registered as a refugee.
The Applicant said that she told her husband that she was going to go to Australia to visit a friend that she met whilst in the refugee camp. The Applicant said that she then lost contact with the husband.
The Applicant arrived in Australia on 1 January 2006 and, whilst here, decided to commence a course of study. The Applicant was able to obtain a student visa and she completed her first lot of studies in February 2007. During this time, the husband arrived in Gambia and was able to obtain a resident permit. The Applicant claims that they recommenced their communication.
The Applicant embarked upon a bachelor of nursing degree at QUT and completed those studies in July 2009. The Applicant applied for the husband to be added as a dependent on her student Visa in order for him to join her in Australia.
The Applicant claims that this application was not proceeded with because she could not afford the legal costs associated with the application.
In 2010, the Applicant applied for permanent residency in Australia as a skilled migrant and this was granted. She had been working as a nurse since August 2009 and is still employed as such.
The Applicant said that, from 2009, she had weekly contact with her husband. She said that she sends between $100 and $200 a fortnight to him to cover living costs as well as paying $100 a month in rent for him.
During this time, the husband was in a relationship with another woman called Eleanor Yemi. The husband has a child with this other woman. It seems the child was born in 2003. The husband claims that he has “full authority and custody of his daughter” following his separation from the mother.
However, it seems that this daughter, named Iye, who is nearly 15 years of age, is living with the sister of the husband in Sierra Leone.
The Applicant travelled to the USA from 22 September 2011 to 18 October 2011. The Applicant went overseas again from 19 January 2012 to 29 March 2012. She again visited the USA during this trip but also claims that she spent six weeks in Gambia where she reunited and lived with her husband.
The husband made an application for spousal visa on 27 June 2013 with the Applicant as the sponsor. The delegate decided not to grant that Visa on 2 April 2015. The Applicant became an Australian citizen on 9 September 2015.
On 30 January 2017, the AAT affirmed the decision of the delegate. On 7 March 2017, the Applicant filed the present application. The Applicant was required to file this application within 35 days of the AAT decision and that date was 6 March 2017. The application is out of time (by one day) and there is no explanation as to why this is so.
Extension of Time
The first factor to consider when looking at an application for extension of time is what is he reason or excuse for the late filing of the application. In this case, no excuse has been proffered. The affidavit sworn by the Applicant does not even touch upon this aspect.
The respondent points out that there has been non-compliance with the rules and, upon that basis alone, the application should be refused.
The second factor to consider in such an application is what prejudice has the filing of the application out of time, caused the respondent. In this case, considering that the delay was only one day, it is difficult to imagine that there would be any prejudice to the respondent.
The third factor to consider is whether there is an arguable case to be presented to the Court such that would militate the Court actually hearing and determining the case on the merits. For the reasons I am about to deliver, the merits of the case were, at the very least, arguable.
When looking at all of the circumstances, notwithstanding that there has been a non-compliance with the rules, I am of the view that I should exercise my discretion to allow this application to be filed one day out of time.
The Decision of the AAT
The AAT looked very thoroughly at the claims of the husband and the supporting evidence of the Applicant. The issue before the AAT was whether the Applicant and the husband were in a genuine spousal relationship at the time of the application and remain so at the time of the review by the AAT.
Whilst there was no doubt that the parties were married, the other requirements for a spousal relationship had to be examined. The AAT discussed the financial aspects of the relationship, the nature of the household, the social aspects of the relationship and the nature of the commitment of both the husband and the Applicant to each other.
The AAT noted the transfer of money from the Applicant to the husband and that friends of the husband and the Applicant, both in Gambia and Australia, support this application.
The AAT concluded that the primary motivation for the communication between the husband and the Applicant has been to obtain a Visa for him. The AAT noted that this did not preclude the possibility of a genuine spousal relationship.
However, the AAT concluded that they did not accept that the money transfers from the Applicant to the husband were sufficient in themselves to constitute evidence, as far as financial aspects were concerned, of a genuine spousal relationship. The AAT was of the view that such transfers have been organised for the purpose of the Visa application.
The AAT noted that the parties had not established a household as a married couple for some time and have lived together for only six weeks since 1996. The AAT did not accept that the Applicant and the husband were viewed, and related to, as a married couple by their families or members of their wider communities.
While the AAT accepted that the parties had communicated with each other about twice a week since June 2012, they were not satisfied that the main purpose of such communication was to provide and draw from each other their main source of companionship and emotional support.
The AAT concluded that the Applicant and the husband did not meet the requirements of s.5F of the Migration Act 1958 (Cth) (“the Act”).
The Grounds of this Application
The grounds of the application as finally amended at the resumed hearing on 19 February 2018 are as follows:-
“1.The decision of the Second Respondent (‘the Tribunal’)(‘the decision’) is affected by jurisdictional error in that the Tribunal failed to consider all of the circumstances of the relationship between Mr and Mrs Kanu as required by regulation 1.15A(2) Migration Regulations 1994.
Particulars
The Tribunal failed to take into account:
(a) the circumstances of and reasons for the initial and ongoing physical separation of Mr and Mrs Kanu.
(b) the future intentions of the parties to the marriage concerning their marriage relationship.
(c) the evidence referred to at paragraph 2(e) below.
1A.The decision is affected by jurisdictional error in that the Tribunal failed to identify the pertinent or relevant circumstances of the relationship, in particular:
(a) by failing to make a finding of fact as to the future intentions of the parties to the marriage to have children or otherwise dismiss the asserted intention to have children as inconsequential;
(c) by failing to make a finding of fact as to whether Mr Kanu has full authority and custody of his daughter Lye Kanu, or otherwise dismiss the claim as inconsequential;
(d) by failing to make a finding of fact whether it accepted the claimed future intention for Lye Kanu to join Mr and Mrs Kanu in Australia, or otherwise dismiss the claimed plan as inconsequential;
(e) by failing to make a finding of fact as to whether Mr and Mrs Kanu see the relationship as a long-term one as required by Regulation 1.15A(3)(d)(iv).
2. The decision is affected by jurisdictional error in that it is to be inferred that the Tribunal misunderstood its statutory task or misconstrued the test it had to apply because it:
(a) failed to ask itself the future intentions of the parties to the marriage concerning their marriage relationship;
(b) confined itself to a consideration of the past relationship of the parties;
(c) acted on factors which were not logically probative of a conclusion that the parties were not in a spousal relationship as at the date of the application or hearing, or took into account irrelevant factors, or gave disproportionate weight to such factors, including :
(i) the leaving of a space on the Applicant’s Canadian landing papers;
(ii) the speculation by the Tribunal as to whether her expressed hope to have children is unrealistic having regard to her age;
(iii) that Mr Kanu had lived a longer period of time with the mother of his child, Ms Yemi, than with Mrs Kanu;
(iv) that there was no evidence of financial sharing or support between the parties before April 2012; and
(v)whether, while living separately, the main purpose of their communication was to provide and draw from each other their ‘main source of companionship and emotional support’;
(d) failed to properly apprehend what was required by the phrase ‘not living separately and apart on a permanent basis’;
(e) failed to take into account evidence relevant to the circumstances of the relationship, including:
(i) Mrs Kanu’s nomination of Mr Kanu as a beneficiary of her superannuation fund;
(ii) The evidence from Mr Kanu that he was ‘self employed, selling little items just to make ends meet so I could lessen the burden on Matilda. But unfortunately things are difficult in Africa. Since then my wife has been taking care of me, sending money for my living’;
(iii) The evidence of Mr Kanu’s identification as ‘married’ on his Gambian Residential Permits in the years 2006 to 2011;
(iv) The evidence from Mr Kanu that he introduced Mrs Kanu to the friends he has made in Banjul, Gambia;
(v) The evidence from Mr Kanu that his family did not approve of his past relationship with Ms Yemi because he was married to the Applicant;
(vi) The evidence of the separation of Mr Kanu and Ms Yemi; and
(vii)The evidence from Mr Kanu that his family and friends have always considered he was married to the Applicant.
(f) erroneously reasoned that money transfers from the Mrs Kanu to Mr Kanu could not constitute evidence, in terms of its financial aspects, of a genuine spousal relationship;
(g) formed a conclusion based on no evidence and supported by no intermediate findings of fact or as to the credit of either Mr Kanu or Mrs Kanu as to show an actual pathway of reasoning that the evidence of money transfers was ‘organised for the purpose of the partner visa application’; and
(h) formed a conclusion based on no evidence and supported by no intermediate findings of fact or as to the credit of either Mr Kanu or Mrs Kanu as to show an actual pathway of reasoning that it was not satisfied that ‘the main purpose of communication between Mr and Mrs Kanu was to provide and draw from each other their main source of companionship and emotional support’.
3. The decision is unreasonable in the legal sense on the basis of the matters identified in paragraph 2, and on the following further bases:
(a) the decision was, on any view, or obviously, a disproportionate outcome having regard to the legislative purpose of the relevant statutory provisions; and
(b) no reasonable decision-maker could have reached the same decision having regard to all of the relevant evidence before the Tribunal upon application of the correct test and a proper construction of the relevant statutory provisions.
As can be seen, these grounds overlap quite considerably.
The arguments for the Applicant rely upon an interpretation of two authorities; Li v Minister for Immigration and Citizenship [2008] FCA 902 and He v Minister for Immigration and Border Protection [2017] FCAFC 206.
There is no need for me to go through an analysis of both of these authorities. The state of the law at this time is neatly encapsulated at paragraph 50 of He (supra) where the Court said
“The Minister is required to consider each of the fifteen specific matters and each of the four principal matters set out in reg 1.15A(3), and any other relevant circumstances of the relationship.”
At paragraph 76 of that judgement, the Court said:-
“In our opinion, the requirement that the Tribunal “consider” the circumstances in reg. 1.15A(3) means that the Tribunal is required to make findings upon each of the prescribed matters numbered with Roman numerals. The nature of these specific matters is such that each of them poses, in effect, a question or questions for the Tribunal.”
At paragraph 79 of that judgement, the Court said:-
“The Tribunal’s findings upon the matters set out in reg 1.15A(3) are made in the course of making a decision as to whether it is satisfied that the visa Applicant and the sponsor are in a “married relationship” within s 5F of the Act. It must be emphasised that there is distinction between the making of a decision by the Tribunal and the written statement it must give under s 368 of the Act. The making of a decision involves a mental process. The written statement functions as a record of the Tribunal’s reason for making its decision. Those reasons provide evidence of the mental process engaged in by the Tribunal. If the written statement does not set out a finding concerning any of the prescribed matters set out in reg. 1.15A(3) in Roman numerals, it may (but will not necessarily) led to an inference that the Tribunal member made no such finding as part of his or her mental process when making the decision. In such a case, the Tribunal will not have complied with its obligation under reg 1.15A(2) to “consider” all of the circumstances of the relationship, including all matters set out in reg. 1.15A(3).”
What are the “Circumstances” in this Matter?
The Applicant has submitted that the circumstances that the AAT had to consider were the following:-
a) the reasons for the initial and ongoing physical separation of the Applicant and the husband
b) the future intention of the parties concerning their marriage relationship
c) the nomination by the Applicant of the husband is a beneficiary of her superannuation fund
d) the evidence from the husband as to his financial circumstances
e) the evidence of the husband’s identification as “married” in his Gambian residential permits from 2006 to 2011
f) the evidence from the husband that he introduced the Applicant to the friends he has made in Gambia
g) the evidence from the husband that his family did not approve of his past relationship with Ms Yemi because he was married to the Applicant
h) the evidence of the separation of the husband and Ms Yemi
i) the evidence from the husband that his family and friends have always considered he was married to the Applicant
j) whether the husband has full authority in custody of his daughter
k) whether the daughter was to join the Applicant and the husband in Australia
l) whether the Applicant and the husband see their relationship is a long-term one as required by reg.1.15 A (3) (d) (iv) of the Migration Regulations 1994 (Cth) (“the Regulations”).
I cannot accept that all of those matters are “circumstances” as that term is understood in He (supra).
At the core of the claim made by the Applicant is an assertion that warfare separated the Applicant and the husband. Despite this separation, the parties always considered themselves to be married to each other. Since contact was re-established in 2006, the contact has remained regular since then and included a six-week visit by the Applicant in 2012. Soon after that visit, the Applicant has made periodic transfers of money to support the husband.
To my mind, those matters are the only “circumstances” that need to be considered by the Minister (and therefore by the AAT) in addition to those circumstances required by reg.1.15 A(3).
Most of the matters that the Applicant has submitted amount to “circumstances” are simply facts to which the AAT may allude if they are of the view that it assists to understand their reasoning. There is no obligation upon the AAT to make a finding about each and every event that an Applicant brings to the attention of the AAT.
Did the AAT consider all of the Circumstances?
With respect to the consideration of the financial aspects of the relationship, the AAT was obliged to make findings upon each of the matters contained in reg.1.15A(3)(a)(i)-(v).
At paragraph 27 of the reasons, the AAT found that there was no evidence of any joint ownership of assets, joint liabilities, legal obligations owed by one party to the other or a pooling of any resources commensurate with the long standing marriage.
The AAT accepted that there was a regime of periodic payments sent by the Applicant to the husband but noted that this had only occurred since April 2012. It was also noted that the Applicant had not listed the husband as the beneficiary of her superannuation but it was something that she intended to do (and did do subsequent to the hearing).
The AAT concluded that the financial arrangements had been organised for the purpose of the spousal Visa application. Therefore, it can be inferred that the Tribunal has considered and made findings on all the aspects that on which it was obliged to make findings. This includes that aspect of the circumstances that I identified in paragraph 41 above.
The AAT accepted that Applicant and the husband had only spent six weeks together in the last 20 years. The Tribunal accepted that during that six week period, the couple spent most of their time together talking and rekindling their relationship as well as sharing the shopping, cooking and housework.
The AAT accepted that the husband had a child from a relationship that occurred during the marriage. The Tribunal noted this product that the Applicant had not met the daughter of the husband during that six-week visit.
The AAT made a finding that the parties have not established a household as a married couple, or as a family, over the last 20 years. It can be inferred that the Tribunal has made findings on the matters listed in reg.1.15A(3)(b)(i) to (iii).
The Tribunal accepted that there were persons who made statements about what they knew of the relationship between the Applicant and the husband but it did not give any significant weight to what those persons have said. This is because none of those people actually know both the Applicant and the husband and can truly speak of the relationship.
The persons that do know both the Applicant and the husband have not seen the two of them together since the 1990s. The AAT noted that one statutory declaration, dated 30 July 2012 speaks of talking to the husband through the Applicant but, most of that time was during a period where the husband was in a relationship with the mother of his daughter.
The AAT noted that the Applicant did not meet with any of the family of the husband during her trip in 2012 but was introduced to his friends. The AAT accepted that there was some social recognition that the husband and the Applicant were married in the early 1990s, that they re-establish contact in 2006, that they met each other again in 2012 and that the husband has applied to come to Australia.
The AAT must consider the social aspects of the relationship when looking at the genuineness of the spousal relationship. It is clear that the AAT concluded that there was limited evidence of this kind that would assist the AAT in concluding that the relationship was genuine. It can be inferred that the AAT made findings on the matters listed in reg.1.15A(3)(c)(i)-(iii).
The AAT accepted that the Applicant and the husband married in 1993 and have never been divorced. The AAT accepted that they were separated because of warfare in Sierra Leone.
The AAT did accept that there was communication between the Applicant and the husband about twice a week since June 2012 but did not accept that the main purpose of this communication was to provide and draw from each other their main support of companionship and emotional support. Rather, it was to establish the appearance of such companionship and emotional support in order to successfully make the present application.
From those findings, it can be inferred that the AAT made findings on the matters listed in reg.1.15 A(3)(d)(i),(ii) and (iii).
The AAT noted that the Applicant said that her future intention was to establish a home in Brisbane with her husband and when they were settled and in a financially strong position, they would sponsor the daughter of the husband to join them. The AAT asked about long-term plans and the sponsor talked of her hopes to have children. The AAT noted that such hopes were possibly unrealistic given the age of the Applicant.
Given that the AAT found that the relationship was not genuine, and there was some contrivance to aid the application for a Visa, it can be inferred that the AAT has made a finding in regards to the matter listed in regulation 1.15 A (3) (d) (iv).
The AAT must consider the circumstances outlined in paragraph 41 above. It is clear that the AAT concluded that the relationship between the husband and the Applicant was not genuine.
The AAT noted that when the Applicant was asked why she and the husband had not done more to be together at least after the UNHRC are put them in contact with each other on 2005, the Applicant was noncommittal. The AAT noted that she spoke in vague terms about being too busy studying or too financially committed to establishing herself in Canada and then Australia to be able to reunite with the husband.
The Applicant was also vague and noncommittal when asked why the husband had not tracked the Applicant down after things had settled down in Sierra Leone, for example by asking her family what had become of her. The Applicant acknowledged that her family knew from 1998 that the Applicant was living in Canada.
The husband said that he believed that the Applicant had been killed and he became lonely. This drove him into another relationship.
The AAT noted that in her Canadian landing papers, the Applicant left the space for “marital status” blank. She did not declare her husband as a dependent when she applied when to Australia on a visitor Visa and remain on a student and temporary skilled Visa.
By making these findings on those circumstances, as well as the circumstances set out in reg.1.15A(3), the AAT has considered all of the circumstances as required by reg. 1.1 5A (2) of the Regulations. The AAT has identified the pertinent and relevant circumstances of the relationship and made findings of fact.
Therefore ground one, and ground one A, both fail.
Ground Two
It can be seen that ground two is very much a corollary of ground one. I have already found that the AAT has not misunderstood its statutory task or misconstrued the tested had to apply.
The matters that were listed in ground two accordingly amount to an attempt at an impermissible merits review. This is especially so with sub grounds (a), (b), (e) and (f).
The matters listed in ground two (c) can only be “irrelevant” if there is a prohibition upon taking such matters into account. There is no such prohibition so the matters cannot be said to be irrelevant. They are simply aspects of the facts to which the Applicant has a different opinion than the AAT.
The Applicant claims that if these matters were not “irrelevant” then disproportionate weight was given to them. That submission is clearly an attempt at an impermissible merits review.
Ground two (d) focuses on a submission that the AAT focused solely on the physical separation of the parties for 20 years. It did far more than that as I have already detailed in these reasons.
Grounds two (g) and two (h) submit that there was no evidence to come to the findings that were made. Upon a reading of the whole of the decision, the conclusions that were made were open. That is not to say that another tribunal of fact may not have come to a different conclusion, but that is not the test.
Therefore ground two fails.
Ground Three
This ground really reiterates all of the above arguments. However, this decision does not involve the exercise of a discretion by the AAT. Therefore it cannot be a decision that could be classed as “unreasonable”. This ground also fails.
Conclusion
I can find no jurisdictional error. Therefore the application must be dismissed with costs fixed in the sum of $7,328.00.
I certify that the preceding seventy-five (75) paragraphs are a true copy of the reasons for judgment of Judge Vasta
Date: 2 March 2018
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