Larney v Minister for Immigration

[2018] FCCA 2707

FEDERAL CIRCUIT COURT OF AUSTRALIA

LARNEY v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2707

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Partner (Temporary) (Class UK) (subclass 820) visa – whether the Tribunal misconstrued and misapplied the Public Interest Criterion 4020 – whether the Tribunal erred in finding the applicant was in a de facto relationship – no jurisdictional error made out – further amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5CB, 5F, 476

Migration Regulations 1994 (Cth), rr.1.09A, 820.22.

Cases cited:

Trivedi v Minister for Immigration and Border Protection [2014] FCAFC 42.

Applicant: SAMUEL JEWEL LARNEY

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: PEG 684 of 2017

Judgment of: Judge Street

Hearing date: 1 August 2018

Date of Last Submission: 1 August 2018

Delivered at: Perth

Delivered on: 1 August 2018

REPRESENTATION

Counsel for the Applicant: Mr T Liu

Solicitors for the Applicant: Myvisa Lawyers

Counsel for the Respondents: Mr P Macliver

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The further amended application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $7,328.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 684 of 2017

SAMUEL JEWEL LARNEY

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 3 November 2017 affirming a decision of the delegate not to grant the applicant a Partner (Temporary) (class UK) visa.

2. The applicant is a national of Ghana and arrived in Australia on 8 November 2012 as the holder of a Temporary Work (Skilled) (subclass 457) visa. On 3 April 2015, the applicant lodged an application for a Partner (Temporary) (class UK) (subclass 820) visa and a Partner (Residence) (Class BS) (subclass 801) visa. The applicant was sponsored by a particular person. The application for the visa involved had a heading, “Previous Relationships”. Underneath that heading, there is the question asked:

   Has the applicant been in any previous relationships with persons other than the sponsor?

   The applicant answered “No”.

3. The applicant was sent correspondence by the Department on 23 June 2016 in relation to the form that was completed. On 5 July 2016, a response was given by the applicant’s migration agent asserting that the applicant had never been married or in a de facto relationship and had never lived with the mother of his two children in Ghana.

4. On 8 September 2016, a procedural fairness letter was sent to the applicant requesting the applicant comment on information said to be considered to be false and misleading and the applicant was given 28 days to respond. The procedural fairness letter had an annexure to it referring to legislation applicable to his circumstances. The legislation set out relevantly included s 5CB of the Act, as well as s 5F of the Act, and r 1.09A of the Migration Regulations 1994 (Cth) (“the Regulations”) as well as the Public Interest Criterion 4020, which relevantly provides as follows:

   4020   (1) There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal during the review of a Part 5-reviewable decision, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:

   (a) the application for the visa; or

   (b) a visa that the applicant held in the period of 12 months before the application was made.

   (2) The Minister is satisfied that during the period:

   (a) starting 3 years before the application was made; and

   (b) ending when the Minister makes a decision to grant or refuse to grant the visa;

   the applicant and each member of the family unit of the applicant has not been refused a visa because of a failure to satisfy the criteria in subclause (1).

   (2AA) However, subclause (2) does not apply to the applicant if, at the time the application for the refused visa was made, the applicant was under 18.

   (2A) The applicant satisfies the Minister as to the applicant's identity.

   (2B) The Minister is satisfied that during the period:

   (a) starting 10 years before the application was made; and

   (b) ending when the Minister makes a decision to grant or refuse to grant the visa;

   neither the applicant, nor any member of the family unit of the applicant, has been refused a visa because of a failure to satisfy the criteria in subclause (2A).

   (2BA) However, subclause (2B) does not apply to the applicant if, at the time the application for the refused visa was made, the applicant was under 18.

   (3) To avoid doubt, subclauses (1) and (2) apply whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant.

   (4) The Minister may waive the requirements of any or all of paragraphs (1)(a) or (b) and subclause (2) if satisfied that:

   (a) compelling circumstances that affect the interests of Australia; or

   (b) compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;

   justify the granting of the visa.

   (5) In this clause:

   information that is false or misleading in a material particular means information that is:

   (a) false or misleading at the time it is given; and

   (b) relevant to any of the criteria the Minister may consider when making a decision on an application, whether or not the decision is made because of that information.

5. On 19 September 2016, the applicant’s migration agent submitted a statutory declaration from the applicant in response to this procedural fairness letter. Relevantly, that statutory declaration expressly referred to the applicant’s employer informing the Department that he had a partner and child in Ghana, but did not disclose them in his application.

6. On 2 November 2017, the delegate refused the grant the applicant a Partner visa on the basis that the applicant did not satisfy the requirements of cl 820.22(6) of Schedule 2 of the Regulations because the applicant did not meet the Public Interest Criterion 4020.

The Tribunal

1. On 3 November 2016, the applicant applied to the Tribunal for a review. By letter dated 28 August 2017, the applicant was invited to and attended a hearing on 2 November 2017 to give evidence and present arguments.

2. The Tribunal identified the background for the review and set out the relevant law. The Tribunal, in that regard, expressly referred to Trivedi v Minister for Immigration and Border Protection [2014] FCAFC 42 (“Trivedi”). The Tribunal posed to itself the question: has the applicant given, or caused to be given a bogus document, or information that is false or misleading in a material particular? The Tribunal identified the answer that had been given by the applicant. The Tribunal formed the view, in relation to the applicant’s evidence, that he may not have been truthful in his evidence and had deliberately misrepresented the nature of the relationship, and minimised the level of contact with the mother of his child to assist with the visa application.

3. The Tribunal referred to the two children out of wedlock and the applicant’s evidence that the mother agreed to raise the children without any responsibility or relationship with the applicant. The Tribunal found that explanation, not unsurprisingly, unpersuasive.

4. The Tribunal also referred to the applicant’s evidence about asking the mother if she was willing to travel to Australia. The Tribunal also took into account that the applicant had told his previous employer that he had a ‘wife and child’ in Ghana. The Tribunal also took into account the having of two children with the mother within three years and rejected the suggestion that the two children were born as the result of casual relationships over a couple of weeks. The Tribunal formed the view that the applicant did have a de facto relationship with the mother before the relationship broke down around the time when the second child was born.

5. The Tribunal found the applicant and the mother of the child had a de facto relationship in the past. The Tribunal referred to the applicant failing to mention that relationship in his application for a Partner visa. The Tribunal found that, by failing to mention that relationship, in respect to the question referred to above and the negative answer given the applicant gave information that was false or misleading. The Tribunal found that information was information that was relevant for the purpose of assessing the applicant’s relationship with the sponsor and found the information was false and misleading in a material particular.

6. The Tribunal found that there is evidence that the applicant has given, or caused to be given, to the Minister or the delegate, information that was false or misleading in a material particular in relation to the present application for the visa.

7. The Tribunal found the applicant does not meet the Public Interest Criterion 4020(1) in terms of the issue of whether the criteria should be waived and found there were not compelling circumstances, having regard to all the circumstances, to waive the criterion and affirmed the decision under review.

The grounds

1. The grounds of the application relevantly are as follows:

   2. The decision of the Second Respondent is infected with legal error, being a jurisdictional error, because the decision maker has failed to ask itself the correct questions when considering whether the applicant was in fact in any previous de facto relationship and thereby misconstrued and misapplied Public Interest Criterion 4020.

   Particulars

   (a) The term "previous relationship" in the visa application form [CB41] must be construed narrowly because any broad construction would not make practical sense:

   (b) The term "de facto relationship" is defined in section 5CB(2) the Migration Act [CB233]:

   (c) There is no evidence in the decision record that the decision maker considered each of the elements of the definition of "de facto relationship".

   (d) In the circumstances, it was not open to the Second Respondent to find that the applicant did not satisfy Public Interest Criterion 4020.

   3. The decision is legally unreasonable because there is no logical or rational basis for finding that the Applicant was in a de facto relationship, and the Second Respondent otherwise failed to afford the applicant procedural fairness in making its decision:

   Particulars

   (a) Any conclusion that the applicant was in a de facto relationship is not supported by the evidence:

   (b) The decision maker fails to identify any evidence which might explain why the applicant might wish to provide false or misleading information.

   (c) The conclusion that the Applicant must have been in a de facto relationship is based on assumptions and not on probative evidence.

   (d) In the circumstances, there was no basis to find that the applicant provided “false or misleading information” for the purposes of Public Interest Criterion 4020.

2. Mr Liu of counsel on behalf of the applicant confirmed that ground one in the further amended application was no longer pressed and was abandoned. Mr Liu was correct to do so in the circumstances of the present case.

Ground 2

1. In relation to ground 2, Mr Liu sought to place weight on the reference to de facto relationship and the statutory provisions that have particular work to do when the Tribunal, under the statutory provisions, is determining whether or not someone is the spouse of another person or is the de facto partner of another person. Mr Liu contended that the statutory provisions of s 5CB of the Act and the relevant regulation had to be applied by the Tribunal in the circumstances of the present case to determine whether or not the information given by the applicant was false or misleading.

2. I reject that submission. The statutory provisions in relation to s 5CB of the Act in respect of the definition of de facto relationship are not given work to do in determining whether or not something is false or misleading within Public Interest Criterion 4020. I reject the submission that the regulation referable to de facto relationship pursuant to s 5CB of the Act had work to do.

3. Mr Liu skilfully endeavoured to submit that because the Tribunal had referred to the statutory provisions under cover of the procedural fairness letter, that the Tribunal was required to determine the matter in accordance with an application of the statutory provisions. I reject that submission. The Tribunal was not embarked on the exercise of determining whether or not, under the statutory regime, someone was a spouse or de facto partner. Rather, the Tribunal was embarked on an exercise, correctly identified by it, as to whether or not the applicant had given a bogus document or information that was false and misleading in a material particular.

4. Mr Liu also skilfully submitted that the Tribunal itself had referred to cohabitation alone, not defining the relationship, and submitted that this was a reference back to the statutory provisions and that accordingly the Tribunal’s reasoning should be understood as endeavouring to apply the statutory provisions and that the Tribunal had failed to consider each of the statutory criteria. Mr Liu, in that regard, referred in particular to paragraph 25, and referred to some of the other factors that would have been required if the statutory provisions had work to do in determining whether the applicant had given, or caused to be given, a bogus document or information that is false or misleading in a material particular.

5. For the reasons the Court has already given, the underlying assumption in Mr Liu’s argument is not correct. The applicant was clearly on notice of the nature of the issue as a result of the adverse finding by the delegate and the transcript that has been tendered into evidence makes clear that the applicant was alive to the nature of the issue as to whether he had given a bogus document that was false and misleading in a material particular.

6. Mr Liu sought to make use of the reference to the de facto partner in the course of the transcript to further the argument that the Tribunal was applying the statutory criteria. I do not accept that submission. The Tribunal has correctly determined the question of fact as to whether or not the applicant had given false or misleading documents or information.

7. On a fair reading of the Tribunal’s reasons as a whole, and in particular taking into account the reference to Trivedi, paragraph 8 and the reasoning in paragraph 18 of the Tribunal’s reasons, the finding in paragraph 26 and 27 reflects a finding taking into account an element of deception. No jurisdictional error as alleged in ground 2 is made out.

Ground 3

1. In relation to ground 3, Mr Liu again skilfully submitted that the decision of the Tribunal was legally unreasonable both in process and in outcome. The process argument advanced by Mr Liu focused upon the change of the law in relation to whether or not cohabitation was required in order to be in a de facto relationship.

2. The substance of this argument depends on the proposition that the Tribunal was required to apply the statutory provisions in determining whether or not the information was false or misleading. For the reasons the Court has already given, that assumption is flawed. Accordingly, there is no illogicality or unreasonableness as contended by Mr Liu in that regard by reference to the issue of cohabitation and the changes in the law concerning the statutory provision.

3. Mr Liu contended that it was legally unreasonable in circumstances where the Tribunal had referred to the statutory provisions in the procedural fairness letter, as well as the references referred to above within the Tribunal’s reasons and in the transcript in the use of the term “de facto partner” and that, accordingly, the adverse finding that the applicant did not comply with the Public Interest Criterion 4020 was legally unreasonable.

4. For the reasons already given, the underlying assumption in relation to the application of the statutory provisions in determining whether the information in the document are false or misleading are flawed. Further, this is a case where the Tribunal gave logical and rational reasons in support of the adverse credibility findings and in a finding that the applicant had in fact given false or misleading information contrary to the Public Interest Criterion 4020.

5. The finding that the applicant had deliberately misrepresented the nature of the relationship, together with the reference to Trivedi, means that the Tribunal’s reasons cannot be said to be legally unreasonable either by reference to outcome or by reference to process.

6. Mr Liu sought to place weight upon the nature and scope of the legislation in relation to assessing the legal unreasonableness. The purpose of the provision in Public Interest Criterion 4020 is to ensure that truthful and honest answers are given to the forms in the application. The adverse finding was clearly open to the Tribunal in the circumstances of the present case that the applicant had given an answer that was false or misleading in a material particular. No jurisdictional error as alleged in ground 3 is made out.

Conclusion

1. As the further amended application fails to make out any jurisdictional error, the further amended application is dismissed.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 21 September 2018