Kaur v Minister for Immigration

[2016] FCCA 3256

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAUR v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 3256

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugee Division) – Partner (Temporary) (Class UK) visa – whether the Tribunal complied with its obligations under s.359AA – whether the Tribunal invited the applicant to give evidence relating to the issues in relation to the decision under review – the Tribunal complied with the mandatory obligations under s.359AA – the issue of the genuine relationship was a live issue at the hearing – genuineness of the relationship was squarely raised in the course of the hearing with the applicant – no failure of the Tribunal to comply with s.360 – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5F, 348, 359A, 359AA, 360, 363, 476

Migration Regulations 1994, reg.1.15A, 802.211, 820.221 of Schedule 3

Cases cited:

Browne v Dunn (1893) 6 R 67

Minister for Immigration and Citizenship v Saba Bros Tiling Pty Ltd [2011] FCA 233

Applicant: NARINDER KAUR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1899 of 2016

Judgment of: Judge Street

Hearing date: 14 December 2016

Date of Last Submission: 14 December 2016

Delivered at: Sydney

Delivered on: 14 December 2016

REPRESENTATION

Solicitors for the Applicant: Mr N Dobbie
Dobbie and Devine Immigration Lawyers Pty Ltd

Solicitors for the Respondents: Ms N Blake
Clayton Utz

ORDERS

1. The amended application is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the amount of $7,206.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1899 of 2016

NARINDER KAUR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 28 June 2016, affirming a decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

2. The applicant is a citizen of India and arrived in Australia on 5 July 2008 on a Student visa (Subclass 572) visa which was cancelled on 16 June 2010. On 25 June 2010, the applicant lodged a review application with a differently constituted Tribunal and on 8 July 2010 a differently constituted found it had no jurisdiction.

3. On 4 June 2010, the applicant lodged a protection visa application and on 30 September 2010, that application was refused. On 11 October 2010, the applicant lodged an application for review with a differently constituted Tribunal and that decision refusing to give the applicant a protection visa was affirmed on 21 December 2010. The applicant remained unlawfully in Australia from 16 August 2010 until 6 August 2015. 

The Delegate

1. The applicant was found by the delegate to have made a valid application for a Partner (Temporary) (Class UK) (Subclass 820) visa and a Partner (Residence) (Class BS) (Subclass 801) visa on 3 August 2015 on the grounds of being the spouse of a person who is an Australian citizen. The delegate identified that the applicant did not meet the criteria under Schedule 3 criterion 3001 of the Migration Regulations 1994 (“the Regulations”) because the applicant had not validly held a visa within 28 days of the relevant day and accordingly, the delegate proceeded to consider whether there were compelling reasons within subclause 820.211(2)(d)(ii) of the Regulations. In that regard, the delegate made reference to the limited evidence that the applicant and her sponsor had provided in relation to having combined their lives in a significant way and noted that the delegate questioned the level of support provided to each other.

2. The delegate did not accept that there was evidence to support the assertion of the sponsor’s fear of being separated from the applicant or to demonstrate the severity of the anticipated hardship and how it would differ from the experience of other couples being required to separate whilst they were waiting offshore application. The delegate relevantly said that the evidence did not necessarily lead the delegate to conclude that they were in a genuine spousal relationship. The delegate however, did not have to make a formal assessment in that regard because that was not of itself a compelling reason to waive the Schedule 3 criteria given that the genuineness should be for the basis of all partner visa applications.

3. The delegate found that the applicant did not meet the requirements of cl.820.211(2)(d) of the Regulations or any of the alternative provisions within cl.801.22 of the Regulations. The delegate found that the applicant did not meet the criteria for a Partner (Residence) (Class BS) (Subclass 801) visa and refused the application for a Partner (Residence) (Class BS) (Subclass 801) visa.

The Tribunal

1. On 11 March 2016, the applicant applied for a review. By letter dated 26 April 2016, the applicant was invited to attend a hearing on 31 May 2016. That letter identified for the applicant that having considered the material, the Tribunal was unable to make a favourable decision on the information alone. The applicant appeared at the hearing on 31 May 2016 to give evidence and presented arguments. The transcript of that hearing has been tendered in the proceedings before the Court. It is apparent from the transcript that the genuineness of the relationship was squarely raised in the course of the hearing before the Tribunal with the applicant. 

2. Submissions were provided by the applicant’s migration representative at the same time as the hearing. At the conclusion of the hearing on 31 May 2016, the Tribunal member raised with the applicant information in relation to her husband’s incoming passenger card on which he wrote his emergency number was that of his previous wife and that his intended address in Australia was an address which was in fact, that of his previous wife.

3. The Tribunal explained consistent with s.359AA of the Act, why the information was relevant to the review. Firstly, the information was relevant to the review in relation to the credibility of the applicant and her husband and secondly, in relation to whether or not they were in a genuine and continuing spousal relationship. The Tribunal also explained the consequences in that regard of not being in a genuine and continuing spousal relationship and that both matters may be the reason or part of the reason, for affirming the decision under review.

4. Relevantly, the Tribunal said as follows:-

   MEMBER: So those things may lead the tribunal to doubt that you and your husband are in a genuine and continuing spousal relationship, and to doubt that you have a mutual commitment to a shared life as husband and wife. This, in turn, would be the reason or part of the reason for affirming the decision in the review. Ms Kaur, if you would like additional time to respond to those matters that I have raised, you can request additional time to put something in writing, or you can respond to those matters now, if you like.

   MS KAUR: I would request some time, Member.

   MEMBER: Is there anything you’d like to say at this stage? 

   MS KAUR: No. 

   MEMBER: Do you think you would be able to provide - I probably should ask your representative, but would it be possible to provide a response within a week? 

   REPRESENTATIVE: Yes, by Friday - or next week?

   MEMBER: No, Tuesday – Friday is good.

   REPRESENTATIVE: Sorry?

   MEMBER: If you could it by Friday that would be good.

   REPRESENTATIVE: Yes, naturally, we can do it.

   MEMBER: Thank you. Now, I haven’t made a decision yet, because I need to receive your response to those matters, but I’m concerned at this stage about the genuineness of your relationship with your husband.  If there’s any other evidence that you would like to provide by Friday about the genuineness of your relationship, then you can do that with your response to the other things that I have raised. 

   MS KAUR: Okay. 

   MEMBER: Okay.  Is that clear?  

   REPRESENTATIVE: Thank you. 

   MEMBER: So you have got any other submissions or any other information you want to provide to support the genuineness because, as I have said to your client, I am concerned.   Response, or at least underneath that:  

   MS KAUR:   No. 

   MEMBER: I will tell you what will happen from here.  I will wait until Friday to receive your representative’s submission and any further information that you would like to provide. After I receive that, if I need anything further or for you to comment on anything else, I will write to you. If that isn’t necessary, I will make my decision and I will send that to your representative and to the department at the same time, and you can normally expect to receive that within about two to three week, after Friday. Okay.  And your representative can advise you of the next steps to take after you receive the decision. 

   MS KAUR: Thank you. 

   MEMBER: Do you have any questions before we finish? 

   MS KAUR: No. 

   MEMBER: Thank you for attending the hearing today.  I will now close the hearing and you are free to go. I will turn off the recording equipment once everyone has left the room.  Thank you. 

5. On the face of the transcript, it is apparent that the Tribunal adjourned the review consistent with the powers under s.363(1)(b) of the Act. The Tribunal identified the background of the applicant and the attendance of the applicant at the hearing to give evidence and present arguments. The Tribunal identified that it had received evidence at the hearing from the sponsor, that the hearing was conducted with the assistance of an interpreter and that the applicant was represented in relation to the review by a registered migration agent who appeared at the hearing.

6. The Tribunal summarised the applicant’s claims and evidence and materially found a number of inconsistencies in the evidence between the applicant and her sponsor. The Tribunal did not accept that these discrepancies in the evidence were due to the husband having a poor memory. The Tribunal also referred to photographs of a wedding, as well as three photographs that were claimed to relate to a recent anniversary celebration. The Tribunal accepted that the photographs of the wedding were taken at a particular restaurant as claimed. The Tribunal was not however, prepared to accept that the photographs of the parties’ anniversary celebration were taken in May of 2016 as claimed. 

7. The Tribunal turned to the requirements of whether the applicant was in a spousal relationship as required under section cl. 820.211(2)(a) and cl. 820.221 of the Regulations. The Tribunal correctly identified the requirements of s.5F of the Act and the requirements of reg 1.15A of the Regulations relation to determining whether the applicant was the spouse of the sponsor. The Tribunal accepted that the parties had validly married on 18 May 2015.

Consideration

The financial aspects of the relationship

1. The Tribunal turned to the consideration of the financial aspects of the relationship. The Tribunal did not accept that the parties had ever pooled their financial resources or shared their day-to-day household expenses.

The nature of the household

1. The Tribunal turned to the nature of the household and found there was little evidence to support that the parties have lived together. The Tribunal accepted that the applicant lives at a particular address but was not prepared to accept that the sponsor lives there with her or, that they have lived together at any other address since their marriage. 

The social aspects of the relationship

1. The Tribunal referred to the social aspects of the relationship and relevantly noted the inconsistency of the evidence between the applicant and the sponsor in respect of an alleged celebration held on the anniversary of their wedding.  It was in this regard that the Tribunal observed that the three photographs that were subsequently provided, did not show the date or location. The Tribunal placed weight on the discrepancy in the evidence between the applicant and the sponsor and did not accept that the sponsor had forgotten the event, given it had occurred only two weeks before the hearing. 

2. The Tribunal found there was limited evidence of social recognition of the parties’ relationship. The Tribunal was not prepared to accept on the available evidence, that the applicant and the sponsor represent themselves to family members or to others in the wider community as being married to each other or that they plan to undertake joint social activities. 

The nature of the persons’ commitment to each other

1. The Tribunal turned to the issue of the nature of the person’s commitment to each other. The Tribunal made reference to information provided from other witnesses by statutory declaration asserting the genuineness of the relationship. The Tribunal observed in that regard that it had taken into account that evidence but it did not overcome the other evidence before the Tribunal that indicates that the parties’ relationship is contrived. The Tribunal found that there was little independent evidence of commitment to the relationship by either party. The Tribunal was not prepared to accept that the applicant and the sponsor provide one another with emotional support or that they see the relationship as long term. 

The relationship between the applicant and sponsor

1. The Tribunal concluded that it was not satisfied that at the time the visa application was lodged and that at the time of decision the parties had a mutual commitment to a shared life as husband and wife to the exclusion of all others, and that the relationship is genuine and continuing. The Tribunal was not satisfied that the parties lived together or do not live separately and apart on a permanent basis. 

2. The Tribunal found that the applicant did not meet the definition of spouse under s.5F(2)(b)-(d) of the Act. The Tribunal found that the applicant did not meet cl. 820.211(2)(a) of the Regulations and that there was no evidence that the applicant met any other alternative subclauses of cl. 820.211 of the Regulations. The Tribunal found that the applicant did not meet cl. 820.221 of the Regulations.

Schedule 3 Criteria

1. The Tribunal turned to the issue of the Schedule 3 criteria and noted that it was not in dispute that there was not a substantive visa held at the time of the application and that the application was not made within 28 days of the date of the applicant’s last substantive visa. The Tribunal found that the applicant did not meet the criterion 3001 and would have to satisfy the Tribunal that there are compelling reasons not to apply the Schedule 3 criteria. The Tribunal noted that the compelling reasons can arise at any time. The Tribunal found it was not necessary to consider whether the reasons submitted were compelling reasons for not applying the Schedule 3 Criteria. The Tribunal found that the applicant has not met the essential criterion for the visa under cl. 820.211(2)(a) of the Regulations. Accordingly, the Tribunal affirmed the decision under review.

Proceedings before this Court

1. The grounds of the amended application are as follows:-

   1. The Second Respondent failed to comply with s359A of the Migration Act 1958.

   Particulars:

   (i) The Tribunal relied on the following adverse information, as a reason or or as part of the reason. for affirming the decision under review:

   (a) An 'Incoming passenger card', completed by Mr Baljit Singh on 12 May 2015, which stated his intended address in Australia was 11 Trawalla Street, Hebersham. NSW: and that the 'Emergency Contact Details Family Or Friend' was Sheree (illegible), but whom the Tribunal said was the ex-wife of Mr Baljit Singh.

   (ii) The Tribunal, in the absence of compliance with s359AA of the Act, was required to put that adverse information to the Applicant in accordance with s359A of the Act. The Tribunal failed to do so, thereby committing jurisdictional error.

   2. The Second Respondent failed to accord the Applicant the hearing prescribed by 360 of the Migration Act 1958

   Particulars:

   (i) The Tribunal found that the relationship between the Applicant and her sponsor was 'contrived'. That was not an issue arising in relation to the delegate's decision that was under review. The Tribunal had an obligation to raise that issue with the Applicant in order to accord the Applicant the hearing prescribed by s360 of the Act. By proceeding to affirm the delegate's decision, in the absence of compliance with s360, the Tribunal committed jurisdictional error.

   3. The Second Respondent failed to conduct the review required by s348 of the Migration Act 1958

   Particulars:

   (i) The Tribunal found that the relationship between the Applicant and her sponsor was 'contrived'. The Tribunal failed to put to the Applicant and or her sponsor (who appeared as a witness at a hearing before the Tribunal) that it considered that their spousal relationship was contrived. That failure, amounting to a breach of procedural fairness, constitutes jurisdictional error. as the Tribunal has failed to conduct the review required by law.

   (ii) The Tribunal did not accept that photographic evidence that the Applicant provided post-hearing to the Tribunal. on or about 6 June 2016, because the photographs 'did not show the date or location, so could have been taken any time'. The Tribunal failed to put to the Applicant that it required the photographic evidence to show the date or location. That failure, amounting to a breach of procedural fairness, constitutes jurisdictional error, as the Tribunal has failed to conduct the review required by law.

Consideration

1. In relation to Ground 1, Mr Dobbie, the solicitor for the applicant, submitted that the Tribunal had not used in the purported compliance of s.359AA, the language “comment on.” Mr Dobbie took the Court to the decision in the Minister for Immigration and Citizenship v Saba Bros Tiling Pty Ltd, [2011] FCA 233 and in particular at paragraphs [30]–[52]. Mr Dobbie submitted that there had been a failure to comply with the mandatory obligation under s.359AA(1)(b)(ii) and (iii) of the Act by reason of the failure in essence, to use the word “comment” or “comment on”. Mr Dobbie submitted that the parliament had used two different terms and that the two terms had different meaning and that it was necessary for the Tribunal if it was not going to comply with the requirements of s.359A of the Act by providing an invitation in writing to comply with the whole of the mandatory terms specified in s.359AA of the Act.

2. The Court raised with Mr Dobbie, the solicitor for the applicant that in the context of what was said in the transcript, the reference to “You can respond to those matters now, if you like” was in substance an invitation to “comment on”. Mr Dobbie maintained that the word “respond” had a different meaning and that accordingly, an expressed reference needed to be made to the concept of “comment” in addition to the reference to “respond”. 

3. I find that the Tribunal complied with the obligations under s.359AA(1)(b)(ii) and (iii) of the Act. I find that the reference by the Tribunal to having additional time to respond to those matters and the reference to “You can respond to those matters now” was compliance with the mandatory requirement under s.359AA(1)(b)(ii) and (iii) of the Act.

4. I find from the transcript that the Tribunal member provided the applicant with the opportunity to comment on or respond to the information and provided the applicant with the opportunity to seek additional time to “comment on” or “respond” to the information. I do not accept that the Tribunal has to parrot specific language to comply with the mandatory requirements. To the extent relevant, I note that the transcript expressly refers as quoted above to the Tribunal after the receipt of submissions, that if the Tribunal need anything further, or for the applicant to “comment on anything else” that the Tribunal would write to the applicant. The “comment on anything else” is entirely consistent with what was said earlier in the transcript by the Tribunal to the applicant as being compliance with s.359AA of the Act and being understood as such by the applicant and the applicant’s migration representative.

1. Mr Dobbie, the solicitor for the applicant also submitted that there was a failure to comply with s.359AA(1)(b)(iv) of the Act to the effect that the applicant should have been heard on the question of an adjournment in relation to the additional time. It is apparent that the applicant was given additional time to put on submissions and respond to the information identified by the Tribunal, consistent with the obligations under s.359AA of the Act. It is apparent that the Tribunal adjourned the proceedings and did not make a decision there and then in relation to the review. The Tribunal complied with the mandatory obligations under s.359AA(1)(b)(iv) of the Act. No jurisdictional error is made out by Ground 1 of the amended application.

2. The first respondent submitted that even if an error was made out, this was a case where there was no practical injustice because on the evidence in the Court book, the applicant did have an opportunity to comment on and respond and in fact, took that opportunity and provided a written response dated 6 June 2016. I accept that submission. There was no practical injustice to the applicant in the present case. Even if a jurisdictional error had been made out, for that reason, relief should be refused. 

3. The Court raised with Mr Dobbie whether a further discretionary factor to be taken into account was the unlawful continuance of the applicant in Australia from 16 August 2010 until 6 August 2015. Mr Dobbie correctly pointed out that unlawfulness is not a criteria for the making of a valid application in relation to a visa. Mr Dobbie submitted that it may be a matter taken into account in relation to compelling circumstances but submitted that it was not a relevant consideration in relation to the refusal of discretionary relief. The discretion to be exercised by the Court must be exercised judicially. In the present case, it is apparent that there has been no practical injustice to the applicant from the alleged jurisdictional error, even if jurisdictional error had been made out.    

4. I do not accept the submission that the discretion cannot take into account as a relevant factor, the almost five years over which the applicant remained unlawfully in Australia. That is not a factor of itself that in the present case would be decisive in relation to the exercise of any discretion. It is however, a further factor that this Court would take into account in the context of the discretion if enlivened, by an error of the kind alleged and taken together with the absence of practical injustice would have given rise to this Court refusing to grant relief on discretionary grounds. 

5. In relation to Ground 2 of the amended application, Mr Dobbie submitted that the ordinary meaning of “contrived” was something that was false from the outset. Mr Dobbie argued that the issue of whether the relationship was contrived in his submission, was not a matter that was raised as a live issue and therefore, that there was not compliance with the obligations under s.360 of the Act. It is apparent from the transcript that from the very outset, the issue of the genuineness of the relationship was raised as a live issue at the hearing. That issue of whether there was a genuine relationship was up in lights from the apparent inconsistencies and inability of the applicant to answer particular questions as well as being expressly raised by the Tribunal at the end of the hearing in detail. There is no failure by the Tribunal to comply with the obligations under s.360 of the Act.

6. The applicant had a real and meaningful opportunity to address the live issue as to whether there was a genuine relationship. I note that the question of whether there was a genuine relationship was something as has earlier been identified that had been flagged as a question of doubt by the delegate. The reasoning of the Tribunal in relation to rejecting the independent witnesses’ evidence and finding that the parties’ relationship was contrived was open to the Tribunal on the evidence before the Tribunal and cannot be said to lack an evident and intelligible justification. No jurisdictional error is made out by Ground 2 of the amended application. 

7. In relation to Ground 3, Mr Dobbie accepted that there was no obligation to comply with the rule in Browne v Dunn (1893) 6 R 67, given the administrative nature of the Tribunal hearing. There was no obligation upon the Tribunal to expressly put to the applicant that the relationship was contrived. The adverse finding in relation to the relationship being contrived was legitimate reasoning and logically open to the Tribunal in the context of the evidence adduced and in determining whether or not there was a genuine relationship in accordance with the statutory criteria. There was no failure to comply with s.348 of the Act by the Tribunal in relation to the finding that the relationship was not genuine and that the applicant did not meet the criteria for the grant of the visa.

8. Mr Dobbie also argued that the finding of the Tribunal in relation to not accepting the photographic evidence was unreasonable and that the Tribunal should have raised its concerns about the photographic evidence with the applicant. The photographic evidence in relation to the anniversary and the wedding was not readily ascertainable information in respect of a critical fact. There is no duty upon the Tribunal to raise with the applicant the concerns that the Tribunal found in relation to the photographic evidence of the anniversary. It was a matter for the Tribunal to determine what weight it gave to the photographic evidence.

9. The observation by the Tribunal that it was not prepared to accept that the photographs provided after the hearing were taken at the celebration is a finding open to the Tribunal, and it cannot be said to be unreasonable or irrational. The observation by the Tribunal that the photographs do not show the date or location was an observation open to the Tribunal and was not irrational or illogical. The decision of the Tribunal to place weight on the discrepancy in the evidence between the applicant and her sponsor in respect of that anniversary celebration was open to the Tribunal and cannot be said to be unreasonable, irrational or illogical. There was no failure by the Tribunal to conduct the review in accordance with s.348 of the Act as alleged in relation to the photographic evidence.

10. No jurisdictional error is made out by Ground 3 of the amended application. 

11. The amendment application is dismissed.  

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  25 January 2017