Kolora v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 3)
[2021] FCCA 1805
•5 August 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Kolora v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 3) [2021] FCCA 1805
File number(s): BRG 431 of 2020 Judgment of: JUDGE EGAN Date of judgment: 5 August 2021 Catchwords: MIGRATION – whether failure by Tribunal to accurately identify numbered clauses of Schedule 2 to the Migration Regulations constituted jurisdictional error – whether the Tribunal unreasonably found that a de facto relationship did not relevantly exist – whether the Tribunal ought to have made an obvious inquiry about an Islamic ceremony said to constitute a critical fact – no jurisdictional error established – application dismissed Legislation: Migration Act 1958 (Cth), s 5CB and 5F
Migration Regulations 1994 (Cth), reg 1.09A(3), 2.03A, Sch 2, cl 801 and 820
Cases cited: S14/2002 v Refugee Review Tribunal [2004] FCAFC 17.
He v Minister for Immigration and Border Protection [2017] FCAFC 2006.
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593.
CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496.
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421.
Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR.
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611.
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.Number of paragraphs: 40 Date of last submission/s: 28 July 2021 Date of hearings: 31 March 2021, 26 May 2021, 28 July 2021 Place: Brisbane Counsel for the Applicant: Mr See Solicitor for the Applicant: Chand Lawyers Solicitor for the First Respondent: Sparke Helmore Counsel for the First Respondent: Mr Byrnes Second Respondent: Submitting appearance save as to costs ORDERS
BRG 431 of 2020 BETWEEN: ALUMECI KOLORA
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE EGAN
DATE OF ORDER:
5 AUGUST 2021
IT IS ORDERED THAT:
1.The Further Amended Application for Review filed on 8 June 2021 be dismissed.
2.On the question of costs, the Applicant shall respond to the First Respondent’s affidavit filed on 5 August 2021 by 4:00pm on 12 August 2021.
3.The First Respondent shall file and serve written submissions in response by 4:00pm on 19 August 2021.
4.Each party have liberty to apply on the giving of two (2) days’ notice, each to the other.
REASONS FOR JUDGMENT
JUDGE EGAN:
The applicant is a citizen of Fiji who arrived in Australia on 21 August 2016 as the holder of a Tourist (Subclass 600) visa. On 31 May 2017, the applicant applied for a Partner – Temporary (Subclass 820) visa and a Partner – Residence (Subclass 801) visa, on the basis of her alleged de facto relationship with the sponsor, Mr Rashid Ali, who at all relevant times was an Australian citizen.
On 6 June 2017, the applicant applied for, and was granted, a Bridging (Subclass 020) visa, valid until 2 November 2017, which was extended upon application until 2 February 2018.
On 29 January 2018, a delegate of the Minister refused the applicant’s visa applications for Partner visas on the basis that the applicant did not meet the definition of spouse or de facto partner under ss. 5F or 5CB of the Migration Act 1958 (Cth) (‘the Act’). [1] On 6 February 2018, the applicant applied to the Administrative Appeals Tribunal (‘the Tribunal’) for review of the decision of the delegate.
[1] Decision of Delegate – Court Book (CB – Exhibit 1) pp. 122 – 148.
On 31 March 2020, the applicant appeared before the Tribunal by telephone for the hearing of the application for review. On 3 July 2020, the Tribunal affirmed the decision of the delegate not to grant the applicant a Partner – Temporary (Subclass 820) visa.
The Reasons of the Tribunal
At [1] of its reasons, the Tribunal correctly noted that it was determining an application for review of a decision made by a delegate of the Minister to refuse to grant to the applicant a Partner (Temporary) (Class UK) visa and a Partner (Residence) (Class BS) visa.
At [2] of its reasons, the Tribunal correctly recorded that the applicant had applied for a Subclass 820 visa, but then incorrectly recorded that the criteria to satisfy the grant of such visa were as set out in Part 801 of Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’). Respectfully, that was an error because the relevant criteria which were required to be satisfied for the grant of a Subclass 820 visa were those as set out in Part 820.211 of Schedule 2 to the Regulations.
At [3] of its reasons, the Tribunal incorrectly noted that the delegate had refused to grant to the applicant a Subclass 820 visa on the basis that the applicant did not satisfy the provisions of cl. 801.211 of the Regulations. The delegate had in fact refused to grant to the applicant the visa because the applicant did not satisfy the provisions of cl. 820.221 of the Regulations. [2] As the applicant’s application for a Subclass 820 visa had failed, the applicant’s application for a Subclass 801 visa also necessarily failed because the applicant could not satisfy the criteria as set out in cl. 801.221 of the Regulations.
[2] Delegate’s decision at CB 129.
Clause 820 of Schedule 2 to the Regulations relevantly provided as follows:
“Subclass 820 -- Partner
820.1--Interpretation
820.111
In this Part:
"court" means a Court of Australia or an external Territory.
"original sponsor" means the Australian citizen, Australian permanent resident or eligible New Zealand citizen who was specified in the application for a Subclass 300 (Prospective Marriage) visa as the person whom the applicant intended to marry after entry into Australia.
"sponsoring partner" means:
(a) in subclauses 820.211(2) and (2B) and clause 820.221:
(i) for an applicant who is, or was, the holder of a Subclass 300 (Prospective Marriage) visa:
(A) the original sponsor for the applicant; or
(B) the subsequent sponsor for the applicant; or
(ii) for any other applicant--the Australian citizen, Australian permanent resident or eligible New Zealand citizen who was specified in the application as the spouse or de facto partner of the applicant; and
(b) in any other provision of this Part:
(i) for an applicant who is, or was, the holder of a Subclass 300 (Prospective Marriage) visa--the original sponsor for the applicant; or
(ii) for any other applicant--the Australian citizen, Australian permanent resident or eligible New Zealand citizen who was specified in the application as the spouse or de facto partner of the applicant.
"subsequent sponsor" means a person who:
(a) is an Australian citizen, Australian permanent resident or eligible New Zealand citizen; and
(b) is not the original sponsor for the applicant; and
(c) is the spouse or de facto partner of the applicant.
Note: eligible New Zealand citizen, SOFA forces civilian component member and SOFA forces member are defined in regulation 1.03. For de facto partner, see section 5CB of the Act (also see regulation 1.09A). For spouse, see section 5F of the Act (also see regulation 1.15A).
820.2--Primary criteria
Note:The primary criteria must be satisfied by at least 1 member of a family unit. The dependent child of an applicant who satisfies the primary criteria is also eligible for the grant of the visa if the child satisfies the secondary criteria.
820.21--Criteria to be satisfied at time of application
820.211
(1) The applicant:
(a) is not the holder of a Subclass 771 (Transit) visa; and
(b) meets the requirements of subclause (2), (5), (6), (7), (8) or (9).
(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; and
820.22--Criteria to be satisfied at time of decision
820.221
(1) In the case of an applicant referred to in subclause 820.211(2), (5), (6), (7), (8) or (9), the applicant either:
(a) continues to meet the requirements of the applicable subclause; or
(b) meets the requirements of subclause (2) or (3).”
…Clause 801 of Schedule 2 to the Regulations relevantly provided as follows:
“Subclass 801—Partner
801.1—Interpretation
801.111
In this Part:
sponsoring partner means:
(a) an Australian citizen, Australian permanent resident or eligible New Zealand citizen who was specified in the application for the Subclass 820 (Spouse) visa or Subclass 820 (Partner) visa as the spouse or de facto partner of the applicant; or
(b) for a person to whom the Minister has decided, under section 345, 351, 417 or 501J of the Act, to grant a Subclass 820 (Spouse) visa or a Subclass 820 (Partner) visa—an Australian citizen, Australian permanent resident or eligible New Zealand citizen who was the spouse or de facto partner of that person at the time the visa was granted.
Note:Australian permanent resident, eligible New Zealand citizen and long‑term partner relationship are defined in regulation 1.03, de facto partner is defined in section 5CB of the Act (also see regulation 1.09A), and spouse is defined in section 5F of the Act (also see regulation 1.15A).
801.2—Primary criteria
Note:The primary criteria must be satisfied by at least 1 member of a family unit. The dependent child of an applicant who satisfies the primary criteria is also eligible for the grant of the visa if the child satisfies the secondary criteria.
801.21—[No criteria to be satisfied at time of application.]
801.22—Criteria to be satisfied at time of decision
801.221
(1) The applicant meets the requirements of subclause (2), (2A), (3), (4), (5), (6) or (8).
(2) An applicant meets the requirements of this subclause if:
(a) the applicant is the holder of a Subclass 820 visa; and
(b) the applicant continues to be sponsored for the grant of the Subclass 820 (Partner) visa by:
(i) the sponsoring partner; or
(ii) the Australian citizen, Australian permanent resident or eligible New Zealand citizen who sponsored the applicant for that visa; and
(c) the applicant is the spouse or de facto partner of the sponsoring partner; and
(d) subject to subclauses (6A) and (7), at least 2 years have passed since the application was made.”
To the extent that it was asserted on behalf of the applicant that the Tribunal had relied upon the wrong legislative provisions when arriving at its decision, such issue will be dealt with in a consideration of Ground 1 of the grounds of review.
Grounds of Review
On 5 August 2020, the applicant filed an Originating Application for Review of the decision of the Tribunal. On 8 June 2021, the applicant filed a Further Amended Application for Review, the grounds of which relied upon by the applicant being as follows:
“Grounds of application
1. The Second Respondent committed jurisdictional error when it misconstrued the Migration Regulations 1994 and relied upon the wrong legislative provisions in forming a view that the decision of the First Respondent should be affirmed.
Particulars
(i)The decision under review pertained to the refusal of the First Respondent to grant the applicant a Partner (Temporary) (Class UK) Visa (Sub-class 820).
(ii) The criteria for the grant of a (temporary) partner visa are provided for within cl 820 of Schedule 2 to the Migration Regulations 1994 (Cth) (''the Regulations'').
(iii) At paragraph 2 of the decision (Court Book, p278), the Second Respondent misconstrued the Regulations and thereafter based its decision on a mistaken assumption when it stated that a ''Class BS (visa) contained only one subclass: Subclass 820) ''.
(a) Clause 1124B (4) of Part 1 to Schedule 1 of the Regulations, provides that a Permanent (Residence) (Class BS) visa contains only one subclass: Subclass 801.
(b) Clause 1214C (4) of Part 2 to Schedule 2 of the Regulations, provides that a Partner (Temporary) (Class UK) visa contains only one subclass: Subclass 820.
(c) The decision under review (See Court Book, p152) was only that pertaining to the refusal of the First Respondent to grant the applicant a Partner (Temporary) (Class UK) visa.
(iv) At paragraph 2 of the decision (Court Book, p278), the Second Respondent appears to have misconstrued the Regulations when it stated that the criteria for the grant of (a Subclass 820) visa (was) set out in Part 801 of Schedule 2 to the Migration Regulations 1994. This is an error of law as the criteria for the grant of a Subclass 820 visa is contained within clauses 820.21 and 820.22 of Schedule 2 to the Regulations.
(v)At paragraph 3 of the decision (Court Book, p278), the Second Respondent misconstrued the Regulations and/or based its decision on a mistaken assumption when it stated that the delegate refused to grant the (Sub-class 820) visa on the basis that the applicant did not satisfy cl.801.211.
(a) The First Respondent had formed its view not to grant a temporary visa on the basis that it was of the belief that the Applicant did not meet the prescribed criteria contained in clause 820.211(a) of the Regulations. (See Court Book, p125), under the heading ''Decision -Partner (Temporary) (Class UK) (Subclass 820) visa'').
(b) Clause 801.21 of Schedule 2 to the Regulations, makes clear that there is no criteria to be satisfied at the time of application.
(c) For a Partner Temporary (Class UK) Visa (Subclass 820) holder to be eligible for a Partner (Residence) (Class BS) Visa (Subclass 801) requires that the applicant be a Subclass 820 visa holder (See cl 801.221(2) of Schedule 2 to the Regulations) and that at least 2 years have passed since the application for permanent residence was made (See cl. 801.221(2)(d)).
(vi)At paragraph 7 of the decision (line 1)(Court Book, p278), the Second Respondent misconstrued the Regulations and/or based its decision on a mistaken assumption when it purported to rely on cl 801.211(2)(a) of Schedule 2, for the purposes of ascertaining whether - at, the time of application - the applicant was either a spouse or de facto partner of a sponsoring partner. The correct clause to rely on - in those circumstances - for the purposes of a Sub-class 820 (temporary visa), is cl 820.211(2)(a).
(vii) At paragraph 7 of the decision (line 5)(Court Book, p278), the Second Respondent appears to have misconstrued the Regulations and/or based its decision on a mistaken assumption when it stated that ''Clause 801.221 (l)(a) then also requires that these matters continue to be satisfied by the applicant as at the time of making a determination regarding the applicant's eligibility for the Subclass 820 visa''. This is an error of law. The prescribed criteria pertaining to Subclass 801 Partner visas is not relevant for the purposes of granting an application for a Subclass 820 Partner visa.
(viii) The Second Respondent's misconstrued the Regulations and/or based its decision on a mistaken assumption when it held that it was unnecessary to make a determination regarding the time of decision criteria in cl 820.211 (See paragraph 18 of the decision) on the basis that the applicant does not satisfy the 'time of application' criteria.
The Second Respondent could not rely on its finding relating to the 'time of application' criteria as it had erroneously formed the view at paragraphs 2 and 7 of the decision that:
(a) A Permanent (Residence) (Class BS) visa contains only one subclass: Subclass 820;
(b) The criteria for the grant of a Partner (Temporary) (Class UK) Visa (Subclass 820) was set out in Part 801 (sic) of Schedule 2 to the Regulations; and
(c) Thereafter purportedly relied on cl 801.211(2)(a) of Schedule 2 of the Regulations in reaching that finding.
2. The Second Respondent committed jurisdictional error when it failed to be satisfied that the Applicant had been in a de facto relationship for at least the period of 12 months ending immediately before the date of application, for the purposes of regulation 2.03A(3) of the Migration Regulations 1994 (See paragraph 15 of the decision).
Particulars
The state of satisfaction of the Second Respondent was unreasonable having regard to the following:
(i) That the Applicant arrived in Australia on 21st August 2016 and resides with her partner, and except for short trips to Fiji, has stayed in Australia for the last 4 years.
(ii)Both the Applicant and the sponsor underwent a traditional Islamic marriage ceremony in Brisbane on 21st August 2016.
(iii)Prior to the Applicant’s arrival in Australia, both the Applicant and the sponsor first met on 4th October 2015 during the sponsor’s stay in Fiji where both become friendly.
(iv) The sponsor returned to Australia on 13 October 2015.
(v) The sponsor then returned to Fiji for a further nine days in November 2015; for about 12 days in April 2016; then returned to Fiji in August 2016 for about 3 weeks, before accompanying the Applicant back to Australia, arriving on 21 August 2016.
(vi) The Second Respondent’s concern about the age difference between the Applicant and her sponsor where it stated “thus making (the sponsor) nearly 40 years senior to the applicant” was unreasonable and an irrelevant consideration.
(vii) As part of evaluating the nature of the continuing relationship between the Applicant and the sponsor, the Second Respondent ought to have considered the presence of a child in the relationship between the applicant and the sponsor.
3. The Second Respondent committed jurisdictional error when it failed to make inquiries in relation to material readily available - which was centrally relevant to the decision being made (whether the Applicant had satisfied the criteria at clauses 820.21 and 820.22 of the Migration Regulations 1994 - thereby exercising decision making power in a manner so unreasonable that no reasonable person would have exercised it.
Particulars
(i)The purpose of visits to Fiji by the Sponsor, coupled with the duration of the relationship before the Applicant’s arrival in Australia and subsequent ceremony in Australia is a strong indicator that the parties were in a de facto relationship.
(ii) Section 5CB of the Migration Act 1958 and regulation 1.09A of the Migration Regulations 1994 establish relevant considerations that a decision maker is bound to consider so as to ascertain the Minister’s satisfaction that both parties are in a de facto relationship. However, these matters and consideration are not an exhaustive list of the potentially relevant matters and considerations.
(iii)The Minister’s task under Section 65 of the Act is subject to an overarching obligation imposed by regulation 1.09A(2) to consider all the circumstances of the claimed de facto relationship, and not only the matters set out in regulation 1.09A(3).
(iv) In this particular case, the nature of relationship within the religious (Islamic) context relevant to the genuineness and continuing nature of the relationship was overlooked by the Second Respondent.
(v) The Second Respondent did not ask about the nature of the religious ceremony conducted in Australia and its significance.
(vi) The Applicant and the sponsor had a Nikah which is generally defined in Islamic law, marriage – or more specifically, the marriage contract – is called nikah, an Arabic word whose original literal meaning was “sexual intercourse”, but which already in the Quran is used exclusively to refer to the contract of marriage.
(vii) The Second Respondent’s failure to inquire or find reasons as to why the Applicant and the sponsor (partner) went through a ceremony on the very day the Applicant arrived in Australia was fatal to the effective conduct of the review of the original decision maker’s decision.
(viii) A further inquiry by the Second Respondent would have revealed that the decision to have Nikah was as a result of long standing relationship between the Applicant and the sponsor.
4. The Second Respondent committed jurisdictional error when it failed to correctly form a view as to whether or not the Applicant was in a de facto relationship for the purposes of Section 5CB of the Migration Regulations 1994 (Cth).
Particulars
(i) The definition of what constitutes a de facto relationship is set out within Section 5CB(2) of the Migration Act 1958 (Cth);
(ii)When informing itself as to whether or not the Applicant had satisfied the statutory test, the Second Respondent thereafter undertook the task of analysing the provisions contained within regulation 1.09A(3) of the Migration Regulations 1994 (Cth) without ultimately forming a view as to whether the conditions in Section 5CB(2)(a) to (d) of the Act had been met.
(iii)As a result, the Second Respondent asked itself the wrong question when seeking to establish whether or not the Applicant was in a de facto relationship for the purposes of the Act.”
Consideration of Grounds for Review
As to Ground 1, it was submitted that the Tribunal misconstrued and misapplied the law because of what were clearly errors by the Tribunal in the identification of the applicable visa Subclasses in the reasons of the Tribunal. The Court does not accept that any error on the part of the Tribunal was material, or that any error vitiated the hearing before the Tribunal, or the decision made by the Tribunal.
At [1], [2], [3] and [7] of its reasons, the Tribunal correctly identified that the applicant was seeking review of a decision of a delegate of the Minister to refuse to grant a Partner (Temporary) (Class UK) visa under s. 65 of the Act. Though the Tribunal misidentified cl. 801 of Schedule 2 to the Regulations as being the relevant clause setting out the criteria which had to be satisfied as preconditions for the grant of the temporary visa – as opposed to correctly identifying cl. 820 of Schedule 2 to the Regulations for such purpose – and though the Tribunal incorrectly recorded that the delegate’s refusal to grant the Temporary visa was based upon the delegate’s finding that the applicant and her sponsor had not satisfied the criteria under cl. 801.211 of the Regulations, as opposed to non-satisfaction of the criteria under cl. 820.211 of the Regulations as found by the delegate, the Tribunal did, correctly, and relevantly, identify that in order for the applicant to be granted a Temporary visa in the circumstances as put before the Tribunal, the Tribunal had to be satisfied that the applicant and her sponsor were in a de facto relationship for more than twelve (12) months immediately prior to the making of the visa application. That requirement was set out in cl. 820.211(2)(a) of the Regulations under the heading “820.21 Criteria to be satisfied at time of application”.
Section 5CB of the Act relevantly defined the term “de facto partner” as follows:
“5CB De facto partner
De facto partners
(1) For the purposes of this Act, a person is the de facto partner of another person (whether of the same sex or a different sex) if, under subsection (2), the person is in a de facto relationship with the other person.
De facto relationship
(2) For the purposes of subsection (1), a person is in a de facto relationship with another person if they are not in a married relationship (for the purposes of section 5F) with each other but:
(a) they have a mutual commitment to a shared life to the exclusion of all others; and
(b) the relationship between them is genuine and continuing; and
(c) they:
(i) live together; or
(ii) do not live separately and apart on a permanent basis; and
(d) they are not related by family (see subsection (4)).
(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.
Definition
(4) For the purposes of paragraph (2)(d), 2 persons are related by family if:
(a) one is the child (including an adopted child) of the other; or
(b) one is another descendant of the other (even if the relationship between them is traced through an adoptive parent); or
(c) they have a parent in common (who may be an adoptive parent of either or both of them).
For this purpose, disregard whether an adoption is declared void or has ceased to have effect.”
Regulation 2.03A(3) of the Regulations added the requirement for the de facto relationship to have existed for a period of twelve (12) months ending immediately before the date of the application. Regulation 2.03A relevantly provided as follows:
“2.03A Criteria applicable to de facto partners
(1) In addition to the criteria prescribed by regulations 2.03 and 2.03AA, if a person claims to be in a de facto relationship for the purposes of a visa application, the criteria in sub-regulations (2) and (3) are prescribed.
(2) If a person mentioned in sub-regulation (1) applies for a visa:
(a) the applicant is at least 18; and
(b) the person with whom the applicant claims to be in a de facto relationship is at least 18.
(3) Subject to subregulations (4) and (5), if:
(a) a person mentioned in subregulation (1) applies for:
(i) a permanent visa; or
(ii) a Business Skills (Provisional) (Class UR) visa; or
(iia) a Business Skills (Provisional) (Class EB) visa; or
(iib) a Skilled Employer Sponsored Regional (Provisional) (Class PE) visa; or
(iii) a Student (Temporary) (Class TU) visa; or
(iv) a Partner (Provisional) (Class UF) visa; or
(v) a Partner (Temporary) (Class UK) visa; or
(vi) a General Skilled Migration visa; and
(b) the applicant cannot establish compelling and compassionate circumstances for the grant of the visa;
the Minister must be satisfied that the applicant has been in the de facto relationship for at least the period of 12 months ending immediately before the date of the application.
(4) Subregulation (3) does not apply if the applicant applies on the basis of being:
(a) in a de facto relationship with a person who:
(i) is, or was, the holder of a permanent humanitarian visa; and
(ii) before the permanent humanitarian visa was granted, was in a de facto relationship with the applicant and informed Immigration of the existence of the relationship; or
(b) in a de facto relationship with a person who is an applicant for a permanent humanitarian visa.
(5) Subregulation (3) does not apply if the de facto relationship is a registered relationship within the meaning of section 2E of the Acts Interpretation Act 1901.”
It was common ground at the time of the hearing that the sponsor was an Australian citizen who was not disqualified from being a de facto partner of the applicant.
Albeit that the Tribunal had arrived, via a circuitous route, at a point where the Tribunal was required to consider whether or not the applicant and her sponsor were, or were not, in a de facto relationship, the Tribunal, at [9] – [15] inclusive of its reasons, under the heading “Are the parties in a de facto relationship?”, set out in detail its findings in relation to those matters which were so required to be considered by the Tribunal in its deliberations.
The Tribunal at [9] – [11] inclusive of its reasons demonstrated that it appreciated how it was to carry out its relevant statutory duty when it said as follows:
“[9] ‘De facto partner' is defined in s.5CB of the Act, which provides that a person is in a de facto relationship with another person to whom they are not married if they have a mutual commitment to a shared life to the exclusion of all others; the relationship is genuine and continuing; the couple live together, or do not live separately and apart on a permanent basis; and the couple are not related by family: s.5CB(2).
[10] In this case Mr Rashid Ali is the uncle of the applicant, by marriage. This falls outside the definition of ‘related by family’ in s.5CB(4) of the Act, such that the applicant remains entitled to have her claimed de facto partner status assessed further under s.5CB, in order to determine her eligibility for a Subclass 820 visa. Regulation 2.03A then provides for additional visa criteria that are not part of the 5CB(2) definition, that apply where a person claims to be in a de facto relationship for the purposes of a visa application. The additional criteria are:
· The parties are both at least 18 years of age; and
· The applicant must have been in the de facto relationship for at least 12 months immediately prior to making the visa application, unless compelling and compassionate circumstances for the grant of the visa exist.
[11] In forming an opinion as to whether the applicant and Mr Rashid Ali are in a de facto relationship, consideration must be given to all of the circumstances of their relationship. This includes evidence of the financial and social aspects of the relationship; the nature of the parties’ household, and their commitment to one another as set out in r.1.09A(3) which is attached to this decision. Each of the specific matters contained in r.1.09A(3) are effectively questions, which must be answered: He v MIBP [2017] FCAFC 206.”
The Court accepts the submissions made on behalf of the first respondent, as set out in paragraph 7 of the first respondent’s Amended Outline of Submissions filed on 20 July 2021. In particular, the Court accepts the submission that the Tribunal correctly summarised the content of cl. 820.211(2)(a) to the effect that the applicant needed to be a de facto partner of the sponsor, and the content of cl. 820.221(1)(a) to the effect that the criteria under cl.820.211(2)(a) had to have continued to have been met up until and as at the time of the decision. In accepting such submission, the Court agrees with the first respondent that the incorrect numbering of the relevant clauses by the Tribunal did not prevent the Tribunal from applying the correct tests. To the extent that the Tribunal erred in its numbering of the relevant clauses, any such error was of no moment, and was immaterial, in that even if the correct numbering had been employed, it could not realistically have given rise to the making of a different decision. In that regard, the Tribunal found that it was not satisfied that a de facto relationship had existed for at least twelve months prior to the making of the visa application, something which was fatal to the success of such application.
In Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421, Bell Gageler and Keane JJ at [45] and [46] said as follows:
“[45] Materiality, whether of a breach of procedural fairness in the case of an undisclosed notification or of a breach of an inviolable limitation governing the conduct of the review in the case of an incorrect and invalid notification, is thus in each case essential to the existence of jurisdictional error. A breach is material to a decision only if compliance could realistically have resulted in a different decision.
[46] Where materiality is in issue in an application for judicial review, and except in a case where the decision made was the only decision legally available to be made, the question of the materiality of the breach is an ordinary question of fact in respect of which the applicant bears the onus of proof. Like any ordinary question of fact, it is to be determined by inferences drawn from evidence adduced on the application.”
Further, in S14/2002 v Refugee Review Tribunal [2004] FCAFC 171 at [28], when considering the reasoning of the primary judge at first instance, Carr J (whom with Tamberlin and Lander JJ agreed) said as follows:
“[28]I would not take any issue with his Honour’s description of what was held in Long on that point. But the question in this matter is one of construction of the Tribunal’s reasons. I would adopt the same approach as that taken by his Honour i.e. to have regard to the reasons as a whole. It is also important, in my opinion, to have regard to the context of the particular part of the reasons in which this sentence occurred.”
The Court finds that when considered as a whole, the reasons of the Tribunal were consistent with the Tribunal having understood the matters which it was required to consider, before arriving at the reasoned decision, which it did. The Tribunal did not err in that regard.
Ground 2 was a claim that the Tribunal’s decision about its not having been satisfied that a de facto relationship existed for a period of at least twelve months before the date of the making of the visa application was unreasonable. The Court finds that there is no merit to such claim, and that the applicant seeks a merits review of such question, something which is not permitted.
The Tribunal had regard to the requirement under r. 2.03A of the Regulations that any de facto relationship, as claimed, must have been in existence for a period of at least twelve months immediately before the making of the visa application. The Tribunal was aware of the provisions of s. 5CB of the Act. At [11] of its reasons, the Tribunal properly acknowledged that consideration must be given to all of the circumstances of a relationship before the Tribunal formed an opinion on such question. The Tribunal acknowledged the binding authority upon it of the decision of the Full Court of the Federal Court in He v Minister for Immigration and Border Protection [2017] FCAFC 2006. At [12] of its reasons, the Tribunal considered in detail those matters required to be considered under r. 1.09A(3) of the Regulations, namely the matters identified as being integral to a consideration of 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.
The Court accepts that the Tribunal carefully considered matters relevant to whether or not the parties were in a de facto relationship or not, and adopts the submissions of the first respondent at paragraph 22(d) of the first respondent’s updated submissions filed on 20 July 2021, namely that:
(a)on 4 October 2015, while visiting relatives in Fiji, the sponsor first observed the Applicant (then “a young pregnant girl … working as a housemaid”) and became friendly with the Applicant before he returned to Australia on 13 October 2015;
(b)Mr Ali visited Fiji for nine days in November 2015, for about 12 days in April 2016 and in August 2016 for about 3 weeks before accompanying the Applicant back to Australia (arriving on 21 August 2016);
(c)other than Mr Ali’s oral assertions, there was no satisfactory evidence of contact and communication between the Applicant and Mr Ali between 13 October 2015 and 21 August 2016, and there was no evidence before the Tribunal regarding the exclusivity of their relationship prior to 21 August 2016;
(d)the Applicant and the sponsor underwent an Islamic marriage ceremony in Brisbane on 21 August 2016 (the same day that the Applicant first arrived in Australia). This occurred even though the sponsor was still married to his estranged wife;
(e)neither the Applicant nor Mr Ali could recall when they became engaged to be married (even though they remembered the date of their first meeting) and the evidence of a Senior Pastor about an engagement ceremony in Fiji on 17 August 2016; and
(f)although the Applicant and Mr Ali have lived together continuously since 21 August 2016 and claim their relationship was permanent, the Tribunal was not able to form a concluded view regarding the bone fides of those assertions;
The findings of the Tribunal at [15] of its reasons were unexceptional, and constituted a further recognition that the Tribunal was alive to the issues at hand. The Tribunal at CB 280 – 281 had due regard to the nature of the relationship between the applicant and her sponsor, as well as to the longevity and particular circumstances of their interaction during the course of such relationship. The Tribunal appreciated that the applicant and her sponsor had not lived together before the applicant’s arrival in Australia on 21 August 2016. Having considered the applicant’s claims relating to her alleged relationship with her sponsor, the Tribunal was entitled to conclude that the applicant and her sponsor had not been in a de facto relationship as at 31 May 2016, that being the date one (1) year prior to the date on which the applicant made application for the visa. In such circumstances, the Tribunal was not required to further determine whether or not the applicant and her sponsor were in a de facto relationship as at the date of the decision.
The Tribunal’s reference to the obvious age gap between the applicant and the sponsor was again, unexceptional, the weight attached to such age difference being a matter about which reasonable minds might legitimately differ. The Tribunal made reference to the fact that the applicant and her sponsor had fathered a child who was born on 31 March 2019. The fact of such birth did not affect the Tribunal’s consideration as to whether or not a de facto relationship existed twelve months prior to the date of the making of the visa application by the applicant. Nor was the existence of the child the subject of a claim in the application for review that such existence was a compelling reason for waiver of any qualifying criteria on compassionate grounds. There was insufficient evidence before the tribunal for any such finding to have been made in any event, and the hearing was not conducted on such basis.
The Court finds that the Tribunal did not err in the way that it considered matters relevant to the question of whether a de facto relationship relevantly existed or not. The Court finds that the applicant has sought to find fault in the Tribunal with eyes too keenly attuned to error. The Full Court of the Federal Court in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 per French, Sackville and Healy JJ said at [46]-[47]:
“[46] It is plainly not necessary for the tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 ; 62 ALD 225 ; 180 ALR 1 at [87]–[97]) and a failure by the tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised “with an eye keenly attuned to error”. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.
[47] The inference that the tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where, however, there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.”
The Court finds that the Tribunal did not evidence extreme illogicality or irrationality when arriving at its decision. In CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496 at [60] the Full Court of the Federal Court (McKerracher, Griffiths and Rangiah JJ) set out the relevant principles relating to irrationality and illogicality at [60] – [61] as follows:
“[60] In Minister for Immigration and Border Protection v SZUXN (2016) 69 AAR 210, Wigney J collected the following relevant principles (at [52] and [54]-[56]):
52 As Robertson J put it in Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at 137 [148], for a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality or irrationality must be shown, “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions”. And as McKerracher J (with whom Reeves J agreed) emphasised in SZOOR v Minister for Immigration & Citizenship (2012) 202 FCR 1 (at 22-23 [84]), a decision cannot be said by a reviewing court to be illogical, irrational or unreasonable simply because one conclusion has been preferred to another possible conclusion.
…
54 … The judgment of Crennan and Bell JJ in SZMDS reveals that jurisdictional error may be able to be established on the basis of illogical reasoning or illogical or irrational findings “on the way” to the final conclusion (see 648 [132]): see also SZRKT at 137-138 [151]-[153]; SZWCO v Minister for Immigration and Border Protection [2016] FCA 51 at [61]-[62].
55 Nevertheless, allegations of illogical or irrational reasoning or findings of fact must be considered against the framework of the inquiry being whether or not there has been jurisdictional error on the part of the Tribunal: SZRKT at 137 [148]. The overarching question is whether the Tribunal’s decision was affected by jurisdictional error: SZRKT at 137-138 [151]. Even if an aspect of reasoning, or a particular factual finding, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reasoning or finding of fact was immaterial, or not critical to, the ultimate conclusion or end result: Minister for Immigration and Citizenship v SZOCT (2010) 189 FCR 577 at 598-599 [83]-[84] (Nicholas J); SZNKO v Minister for Immigration and Citizenship [2013] FCA 123 at [113]. Where the impugned finding is but one of a number of findings that independently may have led to the Tribunal’s ultimate conclusion, jurisdictional error will generally not be made out: SZRLQ v Minister for Immigration and Citizenship (2013) 135 ALD 276 at 291 [66]; SZWCO at [64]-[67].
56 An irrational or illogical finding, or irrational or illogical reasoning leading to a finding, by the Tribunal that the review applicant was not a credible or honest witness may in some circumstances lead to a finding of jurisdictional error. That would particularly be the case where the adverse credibility finding was critical to the Tribunal’s decision that it was not satisfied that the applicant met the criteria for the grant of a visa. Whilst it is frequently said that findings as to credit are entirely matters for the Tribunal, such findings do not shield the Tribunal’s decision-making processes from scrutiny: SZSHV v Minister for Immigration and Border Protection [2014] FCA 253 at [31]. Considerable caution must, however, be exercised before too readily acceding to a proposition that adverse findings as to credit expose jurisdictional error: SZVAP v Minister for Immigration and Border Protection (2015) 233 FCR 451 at 455-456 [14]-[15]. That is because assertions of illogicality and irrationality can all too readily be used to conceal what is in truth simply an attack on the merits of the Tribunal’s findings and decision. In SZMDS, Crennan and Bell JJ (at 636 [96]) made it plain that the deployment of illogicality or irrationality to achieve merits review should not be sanctioned.
[61] For present purposes, there is a difficulty for the appellant in demonstrating “extreme” illogicality. Even emphatic disagreement with the Tribunal’s reasoning would not be sufficient to make out illogicality, according to SZMDS (at [124]). Although the appellant contends that the implausibility and inconsistencies were only “minor”, his Honour disagreed (at [26]-[27]).”
To the extent that the applicant cavils with the findings of the Tribunal, it seeks an impermissible merits review. There is no merit to Ground 2 of the application for review.
Ground 3 seeks to impugn the decision of the Tribunal on the basis that, as a whole, the Tribunal unreasonably failed to make enquiries in relation to “material readily available which was centrally relevant to the decision being made”, and that as a consequence, the Tribunal acted unreasonably. There is no merit to such claim.
Complaint was made by the applicant that the Tribunal failed to inquire as to the nature of the Muslim ceremony called “Nikah”, but it was clear that when considering the social aspects of the relationship, the Tribunal had had regard to the fact of, and of the occurrence of, such ceremony. The Tribunal did not err when it canvassed that issue, and other issues relevant to the relationship, as follows:
“(c) Social aspects of the relationship
The applicant says that she was raised as a Christian in Fiji but has since converted to Islam, immediately upon her arrival in Australia. The applicant and Mr Ali underwent an Islamic marriage ceremony in Brisbane on 21 August 2016, which was the same day as the applicant’s first arrival in Australia. This ceremony took place despite the fact of Mr Ali still being married to his estranged wife Mrs Shabnam Ali. The applicant says that her wedding was attended by 8 or 10 people, none of whom were known by her prior to that day. Now, the applicant and Mr Ali attend the Mosque together most Fridays as well as accompany one another and their daughter during most outings outside the home. The applicant has provided a statutory declaration from the Imam whom married the applicant and her sponsor, Imam Mohammed Taub, dated 14 October 2019. Although the declarant states that the applicant and Mr Ali are married in an Islamic sense, the Tribunal is not prepared to attach any weight to Imam Taub stating that the relationship between the applicant and Mr Ali is genuine, on the basis that they attend the Mosque together and attend Muslim community events together. A similar undated reference has been provided by Imam Mohammed Akram Buksh from the Slacks Creek Mosque, who similarly says that the applicant and Mr Ali are frequently seen together at the Mosque and community events. Again, little weight is attached by the Tribunal to that evidence given that the financial and living circumstances of the applicant appear to compelthe applicant remaining with Mr Ali.” [3]
…
Other than what has been asserted by Mr Ali in his oral testimony before the Tribunal, there is no satisfactory evidence of contact and communication between the applicant and Mr Ali between 13 October 2015 and 21 August 2016. There is also no evidence before the Tribunal regarding the exclusivity of their relationship prior to 21 August 2016.
On the same day as their arrival in Australia (21 August 2016), the applicant and Mr Ali went to a Mosque and underwent an Islamic ceremony. Both Mr Ali and the applicant said that this was necessary in order for them to be able to live together as man and wife. The applicant and Mr Ali have since lived together continuously since that time. The Applicant gave birth to a daughter, fathered by Mr Ali, on 31 March 2019. Mr Ali now receives parenting allowance on account of his daughter.
When questioned by the Tribunal neither of the applicant nor Mr Ali could recall when they became engaged to be married, yet each of them could recall having first met on 4 October 2015. This is somewhat surprising, given that their documentary evidence before the Tribunal includes an undated letter (with no contact details) from a Senior Pastor Vilikesa Tubuitamana, who states that he conducted an engagement ceremony in Fiji between the applicant and Mr Ali on 17 August 2016. Given that this engagement ceremony is said to have taken place only four days prior to the applicant’s departure from Fiji and arrival in Australia, it might be expected that this event could have been easily recalled by the Applicant and by Mr Ali. No weight is attached to the evidence from Pastor Tubuitamana, given that his statement is completely untested; the date of the event he describes could not be recalled by the applicant, and no contact details for Pastor Tubuitamana have been provided.
In his evidence before the Tribunal Mr Ali also said that he was initially attracted to the applicant because he realised that he was old and unwell, and needed somebody to help look after him, and to take care of his house. Both the applicant and Mr Ali expressed to the Tribunal that they are in love with one another.” [4]
[3] CB 280.
[4] CB 281.
The Tribunal was not required to delve into each and every historical or religious element of the Nikah ceremony. The Tribunal appropriately noted that such ceremony did not have the effect of a legal marriage in Australia. The Tribunal also noted that each of the applicant and her sponsor had said that they participated in such Islamic ceremony, on the day on which the applicant arrived in Australia, in order for them to be able to live together as man and wife, albeit in circumstances where no explanation was recorded as to why such ceremony could not have taken place at an earlier time in Fiji. The Tribunal was contextually able to arrive at a decision as to whether a de facto relationship relevantly existed or not without making further enquiries about the Nikah ceremony, something which this Court finds was not a critical fact about which an obvious inquiry could have been made, or ought to have been made, in any event. [5]
[5] Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR at [25] – [27].
Even if the Tribunal had made further enquiries about the Nikah ceremony, the Court finds that any information which might have come to the knowledge of the Tribunal would not have been so material as to realistically have resulted in a different decision being made, particularly having regard to the other findings which had been made by the Tribunal. In Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421, Bell Gageler and Keane JJ at [45] and [46] said as follows:
“[45] Materiality, whether of a breach of procedural fairness in the case of an undisclosed notification or of a breach of an inviolable limitation governing the conduct of the review in the case of an incorrect and invalid notification, is thus in each case essential to the existence of jurisdictional error. A breach is material to a decision only if compliance could realistically have resulted in a different decision.
[46] Where materiality is in issue in an application for judicial review, and except in a case where the decision made was the only decision legally available to be made, the question of the materiality of the breach is an ordinary question of fact in respect of which the applicant bears the onus of proof. Like any ordinary question of fact, it is to be determined by inferences drawn from evidence adduced on the application.”
Ground 4 of the Further Amended Application for Review is a recasting of Ground 2, and seeks an impermissible merits review of the Tribunal’s decision by this Court. The Tribunal appropriately addressed considerations relevant to s. 5CB of the Act in [9] – [10] of its reasons. It did so having specifically referred to r. 1.09A(3) of the Regulations. There is no merit to such ground of review.
It cannot be said that no other rational or logical decision maker could not have made the same decision as the Tribunal. As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130], [131] and [135]:
“[130] In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
[131] What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
…
[135]On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent’s claims. There was. The Tribunal did not believe the first respondent’s claim that he had engaged in the “practice of homosexuality” in the UAE and accordingly it was not satisfied that he feared persecution if he returned to Pakistan.”
Neither could the decision of the Tribunal be considered as legally unreasonable, or one lacking an evident and intelligible justification, as such respective concepts were considered by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76] where it was said:
“[66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.
…
[76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”
The applicant has failed to establish jurisdictional error on the part of the Tribunal.
The Further Amended Application for Review is without merit and is dismissed.
The Court will hear the parties as to costs.
I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Associate:
Dated: 5 August 2021