LI v Minister for Immigration
[2018] FCCA 1217
•14 May 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| LI v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1217 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – application for a Partner (Temporary) (Class UK) visa – whether the Tribunal failed to take into account or not place sufficient weight on relevant considerations – whether the Tribunal failed to comply with s 359A of the Migration Act 1958 (Cth) – no jurisdictional error identified – amended application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5F, 359A, 476 Migration Regulations 1994, reg 1.15A, cl 820.211, cl 820.221 of Schedule 2 |
| Cases cited: He v Minister for Immigration and Border Protection [2017] FCAFC 206 Kayikci v Minister for Immigration and Citizenship [2009] FCA 92 |
| Applicant: | LIN LI |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3672 of 2017 |
| Judgment of: | Judge Street |
| Hearing date: | 14 May 2018 |
| Date of Last Submission: | 14 May 2018 |
| Delivered at: | Sydney |
| Delivered on: | 14 May 2018 |
REPRESENTATION
| Solicitors for the Applicant: | Mr D Oliveri Phoenix Attorneys |
| Counsel for the Respondents: | Ms N Case |
| Solicitors for the Respondents: | HWL Ebsworth Lawyers |
ORDERS
Grant leave to the applicant to file in Court the supplementary submissions dated 14 May 2018.
The amended application is dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $7,328.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3672 of 2017
| LIN LI |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 8 November 2017 affirming a decision of the delegate not to grant the applicant a Partner (Temporary) (Class UK) visa.
The applicant is a citizen of China and arrived in Australia in 2013 as the holder of a Visitor visa. A month later, the applicant returned to China, travelling again to Australia on 5 September 2014. The sponsor has twice been divorced and arrived in Australia on a prospective marriage visa on 29 May 2008. The applicant claimed to have met the sponsor in the Christmas period of 2013 at a Christmas function. The applicant and sponsor met again on his return in September 2014 and started to spend time together. The parties were married on 19 November 2014.
On 1 December 2014 the applicant applied for a Partner (Temporary) (Class UK) subclass 820 visa. In support of the application, the applicant provided joint bank statements from the Commonwealth Bank, letters addressed to the applicant and the sponsor separately at the same address, a copy of a Medibank health card showing the names of the applicant, sponsor and her child, photographs and other statements and statutory declarations. On 23 August 2016 the delegate found the applicant failed to meet the criteria for the grant of the relevant visa.
The Tribunal
The applicant sought a review of the decision on 6 September 2016 and provided additional documents to the Tribunal. By letter dated 28 September 2017, the applicant was invited to attend a hearing on 30 October 2017. The applicant appeared on that date to give evidence and present arguments. The Tribunal accepted the applicant and sponsor were married. Based on the totality of the evidence before it, the Tribunal was not satisfied that the parties have 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 and that they lived together and not separately and apart. The Tribunal identified a significant amount of documentary evidence submitted by the applicant, and formed the view that it was only served to substantiate that the parties have shared the same address.
The Tribunal referred to the financial aspects of the relationship and noted inconsistent information provided by the applicant concerning a joint bank account. The Tribunal noted the applicant and sponsor appeared to utilise the joint bank account more after the delegate’s decision and was of the view the bank account was established to give the appearance of a joint bank account and would appear to substantiate that the applicant and sponsor had pooled their financial resources.
In respect of the nature of the household, the Tribunal placed some weight on sharing of health insurance but noted the applicant and sponsor provided inconsistent evidence regarding the timing of the applicant’s move to reside with the sponsor.
In relation to the social aspects of the relationship, the Tribunal noted the evidence provided by the applicant’s witnesses was limited and did not satisfy the Tribunal that the relationship was entered into for the purpose of a genuine long-term commitment. The Tribunal was also concerned about the length of time being 75 days that the applicant and sponsor had been together in Australia before their marriage. The Tribunal referred to the evidence presented and was not convinced that the parties could have developed an understanding of each other and could have formed a genuine commitment in such a short period.
The Tribunal found the applicant did not meet the requirements of s 5F(2) of the Act and did not meet the criteria under cl 820.211(2)(a) and cl 820.221 of Schedule 2 to the Regulations. The Tribunal expressly referred to the requirements of reg 1.15A of the Regulations and made findings in respect of each of the criteria referred to under that provision.
Before this Court
The amended application identifies the following grounds:
1. The Tribunal fell into jurisdictional error by failing to take into account or not placing sufficient weight on relevant considerations in its application of Subclass 820 of the Migration Regulations in its decision to affirm the delegate's decision not to grant the applicant's (Temporary) (Class UK) visa, in that, it failed to give any or sufficient weight to the following matters despite accepting them as facts:
(i) At the time of the application and decision the parties were validly married to each other as required by the s 5F(2)(a) of the Migration Act.
(ii) The parties have shared their day to day household expenses since they married on 19 November 2014.
(iii) The parties have lived together since they married (48).
(iv) The parties have established a joint household.
(v) The parties have a joint bank account.
(vi) The parties gave consistent evidence about their daily routines (36).
(vii) The Tribunal accepted that the evidence concerning the social aspects of the marriage supported the relationship as being genuine and continuing.
2. The Tribunal fell into jurisdictional error by taking into account irrelevant considerations in its application of Subclass 820 of the Migration Regulations in its decision to affirm the delegate's decision not to grant the applicant's (Temporary) (Class UK) visa, in that, it placed weight in the following matters:
(a) The parties submitted documents to the parties that gave the appearance that they were obtaining documents they considered necessary for the visa application (24), (27).
(b) The parties increased the regularity of their cash deposits into their joint bank account from 6 September 20 I 6 as compared to the period between I January 2016 until 25 July 2016 (28).
(c) The parties gave inconsistent evidence in relation to the time that the parties started to live together - the applicant stated after marriage whereas the sponsor stated after proposal - this insignificant given that the marriage took place very quickly after the proposal (35).
(d) The minor inconsistent evidence between the parties as opposed to the overall consistency of their evidence in relation to the household aspect of the marriage (37).
(e) While the evidence concerning the social aspects supported the relationship as being genuine and continuing it was limited.
(f) It appeared that the marriage was one of convenience.
(g) The Tribunal was not convinced that the parties could have developed an understanding of each other or could have formed a genuine commitment to the relationship in such a short period (- yet this is within the period set out in the legislation).
3. The Tribunal fell into jurisdictional error by reaching a conclusion that is manifestly unreasonable in that it does not reasonably follow from the facts and evidence accepted by the Tribunal.
4. The Tribunal fell into jurisdictional error by failing to comply with section 359A of the Migration Act by not informing the applicant the evidence that he gave to the Tribunal "that in the period 1 January 2016 until 30 June 2016 of the 17 transactions in five related to Medibank Private payments and one related to a payment to the Bankstown Sports Club” would have been the reason or part of the reason for affirming the decision under review [29-30].
5. The Tribunal fell into jurisdictional error by failing to comply with section 359A of the Migration Act by not informing the applicant that the evidence regarding the employment, the salaries and the manner in which the applicant and sponsor are paid, although consistent would be considered by the Tribunal rehearsed and would have been a reason or part of the reason for affirming the decision under review [32].
6. The Tribunal fell into jurisdictional error by failing to comply with section 359A of the Migration Act by not informing the applicant that as both parties referred to their interest in having a daughter and the sponsor was 41 years of age and the parties had been married for three years and neither party indicated whether they had already attempted to conceive, would have the reason or part of the reason for affirming the decision under review [40].
7. The Tribunal fell into jurisdictional error by not giving proper or sufficient reasons for making some of its findings and making incorrect findings of fact.
Ground 1
In relation to ground 1 Mr Oliveri submitted that excessive weight had been given by the Tribunal to the negative findings summarised in paragraph 10 of his submissions and that the Tribunal had given inadequate weight to the positive findings which in substance summarised paragraphs (i) through (vii) of ground 1. The weight to be placed upon the findings of the Tribunal was a matter for the Tribunal. None of the factors in paragraphs (i) to (vii) can be said to be irrelevant considerations in respect of the statutory criteria that the Tribunal had to apply in determining whether that criteria was met.
Weight is a matter for the Tribunal to determine and paragraphs (i) to (viii) do not identify a relevant consideration that was not taken into account. The paragraphs to which Mr Oliveri referred in respect of the positive findings were all matters on their face that were taken into account by the Tribunal. It cannot be said that the Tribunal failed to take into account a relevant consideration identified in (i) to (vii). Each of those considerations was taken into account.
I accept the first respondent’s submissions that the Tribunal is required to consider all the circumstances of a relationship including the matters set out in reg 1.15A(3) of the Regulations. In those circumstances, the matters referred to in paragraphs (i) to (vii) of ground 1 cannot be said to be matters that were not taken into account. Attention was drawn by the first respondent to the decision in He v Minister for Immigration and Border Protection [2017] FCAFC 206, relevantly at [76] – [79]. The Tribunal expressly referred to the requirements in reg 1.15A(3) of the Regulations and extracted the provision in an attachment to its reasons and addressed the respective topic headings and substance in its reasons.
On a fair reading, the Tribunal made findings in respect of the couple’s joint assets and liabilities, their pooling of financial resources and their sharing of day-to-day household expenses. There was no particular issue identified that required further express reference by the Tribunal in its reasons. The Tribunal expressly addressed the couple’s living arrangements and the sharing of work. There is no pertinent issue of the responsibility for the care of the children, being the sponsor’s son, and that the applicant has children that required any express finding by the Tribunal.
I accept the first respondent’s submissions that on a fair reading of the Tribunal’s reasons as a whole, the Tribunal considered the prescribed matters in reg 1.15A(3) of the Regulations. I accept the first respondent’s submissions that on a fair reading of the Tribunal’s reasons, the Tribunal took into account the considerations under reg1.15A(3)(d) of the Regulation, taking into account in particular the reasons of the Tribunal in paragraphs 46 to 48. I do not accept that there was a failure to take into account any relevant consideration as identified in paragraphs (i) to (vii). No jurisdictional error as alleged in ground 1 of the amended application is made out.
Ground 2
In relation to ground 2, Mr Oliveri submitted that the matters identified in paragraphs (a) to (g) of ground 2 were irrelevant considerations that should not have been taken into account.
In relation to ground 2(a) Mr Oliveri referred the Court to paragraphs 24 and 27 of the Tribunal’s reasons. Mr Oliveri submitted that the reasoning in relation to the timing of the documents in respect of salaries and the appearance that that presented was an irrelevant consideration. The Tribunal was entitled to take into account as a relevant consideration, the timing in respect of transactions revealed. It was open to the Tribunal to take into account the appearance that the documents were created in the context of the finding made by the Tribunal, as to concern as to whether the documents submitted gave a false and misleading impression as to the parties financial circumstances. Ground 2(a) was not an irrelevant consideration.
In relation to ground 2(b), Mr Oliveri referred to paragraphs 28 and 30 of the Tribunal’s reasons and the financial documents in the Court Book. The timing in relation to the opening of the joint bank account and the transactions that those documents revealed were relevant and logical considerations for the Tribunal to take into account. No relevant jurisdictional error is made out by ground 2(b).
In relation to ground 2(c) Mr Oliveri referred to paragraph 35 and placed weight upon the observations in a decision in Kayikci v Minister for Immigration and Citizenship [2009] FCA 92 at [23]. Mr Oliveri submitted that in the circumstances of the present case, it was accordingly irrelevant for the Tribunal to take into account the duration of the relationship leading to the marriage. The duration of a relationship and the speed with which the marriage occurred were relevant and logical considerations for the Tribunal to take into account. There was no irrelevant consideration identified by reference to paragraph 35 of the Tribunal’s reasons. No jurisdictional error as alleged in ground 2(c) is made out.
In relation to ground 2(d), Mr Oliveri took the Court to paragraph 37 of the Tribunal’s reasons which referred to placing some weight on the consistent evidence and being concerned by the inconsistent evidence regarding the timing of the applicant’s move to reside with the sponsor. Those were relevant and logical considerations for the Tribunal to take into account. No irrelevant consideration as alleged in ground 2(d) is made out.
In relation to ground 2(e), this reflects an alleged irrelevant consideration at paragraph 44 where the Tribunal referred to its overall assessment in respect of the social aspects that the evidence presented was limited and did not satisfy the Tribunal that the marriage was entered into for the purpose of genuine long-term commitment through a shared life together. That was a relevant and logical consideration for the Tribunal to take into account. No irrelevant consideration as alleged in ground 2(e) is made out.
In relation to ground 2(f), Mr Oliveri referred to paragraph 47 of the Tribunal’s reasons and submitted that the Tribunal had determined the criteria by reference to whether the marriage was one of convenience. The Tribunal’s reasons are not to be read with a keen eye for error. The Tribunal’s reasons in paragraph 24 refer to the conduct of the hearing and the Tribunal explaining as an issue to the applicant that it appeared that the marriage was one of convenience in order for the applicant to obtain a partner visa. The Tribunal’s reasons must be read as a whole. The Tribunal continued that the applicant stated he understood the Tribunal’s concerns and wants the Tribunal to take into account the whole of the situation. Paragraph 47 does not support a finding that the Tribunal determined the criteria by reference to whether the marriage was one of convenience. No jurisdictional error as alleged in ground 2(f) is made out.
In relation to ground 2(g), Mr Oliveri took the Court to paragraph 48 of the Tribunal’s reasons and submitted that this was an erroneous application of circumstances that were irrelevant, taking into account Kayikci v Minister for Immigration and Citizenship [2009] FCA 92 as referred to above. Kayikci v Minister for Immigration and Citizenship [2009] FCA 92 does not support the proposition that the Tribunal is not entitled to take into account all the circumstances, and in particular the duration of the relationship giving rise to the marriage. No irrelevant consideration was taken into account as alleged in ground 2(g). No jurisdictional error as alleged in ground 2 of the amended application is made out.
Ground 3
Ground 3 was one in respect of which Mr Oliveri relied upon the positive findings identified in paragraph 9 of his submissions as giving rise to circumstances in which it was legally unreasonable for the Tribunal not to find in the applicant’s favour. The difficulty with that proposition is that it is clear the Tribunal made other findings, as identified by Mr Oliveri in paragraph 10 which were described as negative findings, which the Tribunal on its face was entitled to take into account. This is not a case where the circumstances identified in light of the findings in both paragraphs 9 and 10 of Mr Oliveri’s submissions give rise to a position where no reasonable Tribunal could have refused to grant the visa or give rise to irrationality or unreasonableness of a kind sufficient to make out legal unreasonableness. No jurisdictional error as alleged in ground 3 of the amended application is made out.
Ground 4
Ground 4 was abandoned by Mr Oliveri and is not further addressed.
Ground 5
In relation to ground 5, Mr Oliveri focused upon the Tribunal’s reasoning in paragraph 32 and submitted that the evidence regarding the relationship, salaries and manner in which the applicant and sponsor are paid was information enlivening an obligation under s 359A of the Act. The terms of s 359A of the Act is as follows:
(1) Subject to subsections (2) and (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
(2) The information and invitation must be given to the applicant:
(a) except where paragraph (b) applies--by one of the methods specified in section 379A; or
(b) if the applicant is in immigration detention--by a method prescribed for the purposes of giving documents to such a person.
(3) The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 359AA.
(4) This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b) that the applicant gave for the purpose of the application for review; or
(ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
(c) that is non-disclosable information.
(5) A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 362B(1F).
Information that negates, undermines or contradicts the applicant’s claims is information of a kind enlivening an obligation under s 359A of the Act. Reasoning in relation to the credit of the parties is not information that enlivens an obligation under s 359A of the Act. The Tribunal’s reasons in paragraph 32 reflect a reasoning process in respect of the applicant’s credit and did not identify any information enlivening an obligation under s 359A of the Act. No jurisdictional error as alleged in ground 5 of the amended application is made out.
Ground 6
In relation to ground 6, Mr Oliveri relied upon paragraph 40 of the Tribunal’s reasons and alleged that the interest of both parties having a daughter was information enlivening an obligation under s 359A of the Act. Information enlivening such an obligation must be information that negates, undermines or contradicts the applicant’s claim. The evidence in relation to the interest in having a daughter was information that advanced the applicant’s claim. It was not information of a kind enlivening an obligation under s 359A of the Act. Nor, was the omission of reference to whether the parties had attempted to conceive information that enlivened an obligation under s 359A of the Act. That observation by the Tribunal in relation to the absence of evidence is not something that can enliven an obligation under s 359A of the Act. Further, the reference to the absence of evidence of any attempt to conceive is part of the reasoning by the Tribunal in relation to credit and does not reflect an obligation arising under s 359A of the Act. No jurisdictional error as alleged in ground 6 of the amended application is made out.
Ground 7
In relation to ground 7, Mr Oliveri submitted that the findings of the Tribunal in paragraphs 49 to 52 were unsupported by sufficient reasoning. Paragraphs 49 to 52 concerned the nature of the household and relevantly provided as follows:
49) The Tribunal in in reaching its decision also considered the nature of the household shared by the parties, including any joint responsibility for care and support of children; parties' living arrangements; and any sharing of housework.
50) The Tribunal heard that because the parties live with the sponsor’s sister who is not in paid employment, she does most of the household chores. The sponsor cooks because she is trained and likes to do so. The applicant occasionally helps his sister-in-law by mopping the floor and doing the lawn. The applicant stated that in relation to laundry, whoever has the time will do that.
51) The Tribunal put some weight on the private health insurance documentation provided which showed that the sponsor was a beneficiary on the policy.
52) However, overall, based on the evidence before it, the Tribunal was not satisfied that the parties share a household in the manner of two genuinely married people in a long-term relationship.
Mr Oliveri submitted that the reference to “overall, based on the evidence before it” was not supported by sufficient reasoning. The Tribunal’s reasons are not to be read with a keen eye for error. The reasons should be read as a whole. Paragraphs 49 to 52 are part of the consideration that the Tribunal was required to take into account under reg 1.15A(b) of the Regulations. The Tribunal does not have to repeat the findings that is made under the other criteria considered by the Tribunal in its reasoning process. I do not accept that there was any insufficiency of reasons or the failure to give proper reasons in respect of the findings made in paragraphs 49 to 52 of the Tribunal’s reasons. Those reasons were open to the Tribunal and provide sufficient logical reasons by reference to evidence before the Tribunal for the findings made.
In relation to the alleged incorrect finding of fact, Mr Oliveri contended that the adverse finding in paragraph 52 of the Tribunal’ reasons was an incorrect finding of fact. The submission in that regard is in substance an invitation to this Court to engage in impermissible merits review. The adverse finding in relation to paragraph 52 was open to the Tribunal on the material before the Tribunal and does not reflect any misunderstanding or erroneous fact finding by the Tribunal. No jurisdictional error as alleged in ground 7 is made out.
Conclusion
No jurisdictional error is made out by the amended application. Accordingly, the amended application is dismissed.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Street
Date: 15 June 2018
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