Liang v Minister for Immigration
[2018] FCCA 745
•29 March 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| LIANG v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 745 |
| Catchwords: MIGRATION – Judicial review of decision by Migration Review Tribunal (Tribunal) affirming decision of delegate not to grant Partner visa – whether Tribunal failed to comply with s.359AA of the Migration Act 1958 (Cth) (Act) – whether Tribunal failed to accord applicant procedural fairness by failing to disclose certificate issued under or purportedly under s.375A of the Act – whether having made an error in concluding there were no compelling circumstances for waiving a condition the Tribunal nevertheless affirmed the delegate’s decision on an entirely independent ground – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5F, 359A, 359AA, 375A Migration Regulations 1994 (Cth), reg. 1.15A, Schedule 2, cls. 820.211(2)(a), 820.211(2)(d), 820.221, Schedule 3, criteria 3001, 3003, 3004 |
| Cases cited: Minister for Immigration and Border Protection v Singh [2016] FCAFC 183 MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081 Singh v Minister for Immigration and Border Protection [2013] FCA 1324 Singh v Minister for Immigration & Anor [2016] FCCA 2464 Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32 |
| Applicant: | YA JIE LIANG |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2165 of 2015 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 21 March 2018 |
| Date of Last Submission: | 21 March 2018 |
| Delivered at: | Sydney |
| Delivered on: | 29 March 2018 |
REPRESENTATION
| Solicitors for the Applicant: | Mr S Kassem of Future Legal |
| Counsel for the First Respondent: | Ms N Laing |
| Solicitors for the First Respondent: | Clayton Utz Lawyers |
ORDERS
The application is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2165 of 2015
| YA JIE LIANG |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant, a citizen of China, seeks judicial review of a decision of the Migration Review Tribunal (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant a Partner (Temporary)(Class UK) visa (Partner visa).
Partner visa requirements
To have been entitled to a Partner visa the applicant had to satisfy, among other things, the criteria specified in cl.820.211(2)(a) and cl.820.211(2)(d) of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations).
Clause 820.211(2)(a) of Schedule 2 to the Regulations requires that at the time of application for a Partner visa the applicant is the spouse or de facto partner of an Australian citizen. Subsection 5F(1) of the Migration Act 1958 (Cth) (Act) provides that a person is the “spouse” of another person if, under s.5F(2) of the Act, the two persons are in a “married relationship”. Under s.5F(2) of the Act, persons are in a “married relationship” if:
a)they are married to each other under a marriage that is valid for the purposes of this Act; and
b)they have a mutual commitment to a shared life as husband and wife to the exclusion of all others; and
c)the relationship between them is genuine and continuing; and
d)they live together, or do not live separately and apart on a permanent basis.
Subsection 5F(3) of the Act provides that 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 have made provision, and this is to be found in reg.1.15A of the Regulations. Subregulation 1.15A(2) provides that, when considering an application for, among other subclasses of visas, a Partner visa, the Minister must consider all the circumstances of the relationship, including the matters set out in reg.1.15A(3) of the Regulations. Those matters are:
a)the financial aspects of the relationship, including any joint ownership of real estate or other major assets; any joint liabilities; the extent of any pooling of financial resources, especially in relation to major financial commitments; whether one person in the relationship owes any legal obligation in respect of the other; the basis of any sharing of day-to-day household expenses; and
b)the nature of the household, including any joint responsibility for the care and support of children; the living arrangements of the persons; and any sharing of the responsibility for housework; and
c)the social aspects of the relationship, including whether the persons represent themselves to other people as being married to each other; the opinion of the persons’ friends and acquaintances about the nature of the relationship; and any basis on which the persons plan and undertake joint social activities; and
d)the nature of the persons’ commitment to each other, including the duration of the relationship; the length of time during which the persons have lived together; the degree of companionship and emotional support that the persons draw from each other; and whether the persons see the relationship as a long-term one.
Also relevant is cl.820.211(2)(d) of Schedule 2 to the Regulations which provides that an applicant who is not the holder of a substantive visa at the time of application has to satisfy criteria 3001, 3003, and 3004 of Schedule 3 to the Regulations unless the Minister is satisfied there are compelling reasons for not applying those criteria. Relevant to the application before me is criterion 3001 of Schedule 3 to the Regulations which requires that the application for a Partner visa be validly made within 28 days of the “relevant day”. Criterion 3001(2)(c) of Schedule 3 provides that if an applicant ceases to hold, among other things, a substantive visa on or after 1 September 1994, the “relevant day” is the later of the last day the applicant ceases to hold a substantive visa or the day when the applicant last entered Australia unlawfully.
The applicant’s claim for a Partner visa
The applicant applied for a Partner visa on 12 March 2013. The application was based on the applicant’s marriage to an Australian citizen (sponsor) that took place on 14 September 2012.
By letter dated 30 April 2013 the delegate informed the applicant that the criteria in Schedule 3 to the Regulations require that an application for a Partner visa be lodged within 28 days of an applicant’s substantive visa ceasing; that the records of the Department of Immigration and Citizenship (Department) showed that the applicant’s last substantive visa had been cancelled on 4 September 1998; and that the applicant lodged his application for a Partner visa more than 28 days after his last substantive visa ceased.[1] The delegate further informed the applicant, however, that the requirements of Schedule 3 can be waived if compelling reasons exist for not applying those criteria. After giving examples of what may constitute compelling circumstances, the delegate invited the applicant to put forward documents to demonstrate the existence of compelling reasons for waiving the application of the criteria of Schedule 3.
[1] CB59
On 27 May 2013 the applicant sent an email to the delegate attaching a number of documents.[2] In his email the applicant requested that the Department waive the requirements of Schedule 3 for the following reasons:
a)The sponsor “relies on” the applicant for “ongoing and continuous care”.
b)The sponsor suffers from knee pain and stiffness since her motor vehicle accident in 1993 and depression after being unemployed for a “few years”. The sponsor also has “suicidal ideas when she is alone at home”.
c)The applicant takes “care her all the times and join with her for daily routines to lead her not to worry her illness”.[3]
[2] CB84
[3] Errors in original
The applicant attached a copy of the sponsor’s mobility parking sticker and a medical report dated 22 July 2008 which provides that the sponsor has “moderate to severe” depression and that the sponsor is being treated with medication and counselling.[4]
[4] CB86-88
By letter dated 8 April 2014 the delegate informed the applicant that he required additional information, being the information specified in a document titled “Request Checklist and Details” that was attached to the letter.[5] The information identified in the attachment related not only to matters relevant to whether the criteria specified in Schedule 3 should be waived, but also to the other criteria for the grant of a Partner visa.
[5] CB62
On 15 May 2014 a delegate of the Minister refused to grant the applicant a Partner visa because he was not satisfied the applicant met the requirements of cl.820.211(2)(d) of Schedule 2 to the Regulations, and that no compelling reasons existed to waive the Schedule 3 criteria.
Application for review to the Tribunal– s.375A certificate
On 3 June 2014 the applicant applied to the Tribunal for review of the delegate’s decision.[6] On 5 June 2014 a delegate of the Minister issued a certificate (375A certificate) purportedly under s.375A of the Act. That section provides:
[6] CB89-99
(1)This section applies to a document or information if the Minister:
(a)has certified, in writing, that the disclosure, otherwise than to the Tribunal, of any matter contained in the document, or of the information, would be contrary to the public interest for any reason specified in the certificate (other than a reason set out in paragraph 375(a) or (b)); and
(b)has included in the certificate a statement that the document or information must only be disclosed to the Tribunal.
(2)If, pursuant to a requirement of or under this Act, the Secretary gives to the Tribunal a document or information to which this section applies:
(a)the Secretary must notify the Tribunal in writing that this section applies to the document or information; and
(b)the Tribunal must do all things necessary to ensure that the document or information is not disclosed to any person other than a member of the Tribunal as constituted for the purposes of the particular review.
The 375A certificate stated that “the disclosure otherwise than to the Migration Review Tribunal of any matter or information contained in folios 34-45 of file number CLF2013/57949 would be contrary to the public interest” because “folio 34-45 contains information about investigations by the Department’s officers, disclosure of which may reveal investigation methodology” and that disclosure of this information “may affect future capacity to obtain information using these methods”.[7] The 375A certificate stated that the Tribunal “must do all things necessary to ensure that the document or information is not disclosed to any person other than to a member of the” Tribunal.[8] It is common ground that the Tribunal did not disclose to the applicant the 375A certificate or the documents covered by the 375A certificate.
[7] CB100
[8] CB100
Before the Tribunal
By letter dated 27 April 2015 the Tribunal invited the applicant to appear before it to give evidence and present arguments relating to the issues arising in the applicant’s case.[9] The Tribunal stated that “[o]ne of the issues” it would be considering is whether the applicant complied with the time frames stipulated in Schedule 3 to the Regulations at the time of the application for the Partner visa and, if not, whether there are any compelling reasons for not applying these requirements. The Tribunal further stated:
[i]n considering your review application the Tribunal must take into account certain matters regarding the relationship between the visa applicant and the sponsor. These matters include the financial and social aspects of the relationship, the nature of the household and the nature of each person’s commitment to the relationship.
[9] CB103
On 9 June 2015 the applicant and the sponsor appeared before the Tribunal to give evidence and present arguments. At the hearing[10] the applicant tendered a number of documents, including written submissions on whether there were compelling reasons not to apply the criteria contained in Schedule 3 to the Regulations,[11] a letter from Royal Prince Alfred Hospital dated 8 May 2015,[12] and a medical report dated 29 April 2015 referring the applicant to a medical specialist.[13]
[10] CB121, [11]
[11] CB105
[12] CB106
[13] CB107
Before the Tribunal the applicant claimed to have met the sponsor on 12 February 2012 when the sponsor tripped and dropped her shopping. The applicant helped the sponsor up, and he and the sponsor started talking. The applicant and the sponsor “got to know each other”, went shopping together, had yum cha “from time to time”, and, on 14 September 2012, they married. [14]
[14] CB123, [18]
The applicant stated that he and the sponsor:
a)decided to get married after such a short period of acquaintance because “they got along and had many things in common” and “they wanted to look after each other”;[15]
b)had a small wedding, which the sponsor’s mother did not attend due to her old age;[16] and
c)started living together with the sponsor’s mother after 1-2 months after they met and the sponsor and her mother pooled their pension incomes to pay for rent, food, electricity, clothing, and transport.[17]
[15] CB124, [20]
[16] CB124, [21]
[17] CB124, [22]
The applicant further stated that he had visited Western Australia in 2013 and Tasmania in 2014 because a friend had asked him to visit those places and “give some advice on investing in properties”.[18] The sponsor did not accompany the applicant on these trips[19] and she was not aware of them.[20]
[18] CB124, [24]
[19] CB124, [24]
[20] CB126, [42]
The sponsor stated that:
a)she lived with her mother “on and off” in her mother’s Department of Housing apartment, and that the sponsor’s mother had not advised the Department of Housing that the applicant and the sponsor were living her.[21]
b)she met the applicant in February 2012 while she was shopping and the parties kept in contact by telephone and she did not know where the applicant was living at the time they met.[22]
c)the reason the sponsor and the applicant married after such a short time was because “they had both been single and she needed someone to help her”.[23]
d)the sponsor and the applicant moved in together as soon as they married in September 2012, and they did not have a holiday after they married because “they had little spare money”.[24]
[21] CB124, [27]
[22] CB124, [28]
[23] CB124, [29]
[24] CB125, [30]
Relevant to the ground of review stated in the application is the following passage from the Tribunal’s reasons:[25]
The Tribunal invited [the applicant] to comment/respond to information which would be the reason or part of the reason for affirming the decision under review. [The applicant] was given particulars of the information, why it was relevant and advised he could seek further time to comment or respond. [The applicant] elected to respond at the hearing.
Then information and response is as follows.
· [The sponsor] gave evidence that the parties moved in together immediately after marriage whereas [the applicant] stated they moved in 1-2 months after they first met. [The sponsor’s] evidence was significantly different to [the applicant’s] and this undermined the claim that they were living in a spouse relationship from the time of application or at any time. [The applicant] stated that he had stayed overnight with [the sponsor] from about 1-2 months after they met and this is what he meant when he stated they moved in together.
· [The sponsor] gave evidence that during the marriage [the applicant] had travelled to Queensland on one occasion. [The applicant] gave evidence he travelled once to Western Australia in 2013 and once to Tasmania in 2014. This is relevant because it undermines the claim that the parties have been living together since they married in 2012. If they were living together the Tribunal considers that [the sponsor] would recall [the applicant] travelling to Western Australia in 2013 and Tasmania in 2014. [The applicant] stated that these visits were short and [the sponsor] had forgotten about them. The Tribunal put to him that the trip to Tasmania was undertaken in 2014 and it was difficult to accept that [the sponsor] would not recall the trip.
[25] CB125, [31], [32]
Tribunal’s reasons
The Tribunal considered whether[26]:
a)the applicant was in a spousal relationship with the sponsor at the time of the application for the Partner visa, and at the time of decision; and
b)the applicant held a substantive visa at the time of the application for the Partner visa, and, if not, whether there existed compelling reasons to waive the application of the criteria in Schedule 3 to the Regulations.
[26] CB123, [14]
The Tribunal was not satisfied that at the time the applicant applied for a Partner visa he and the sponsor were in a spousal relationship as required by cl.820.211(2)(a) and cl.820.221 of Schedule 2 to the Regulations.[27] The Tribunal was not satisfied the parties had a mutual commitment to a shared life as husband and wife to the exclusion of all others, or that the relationship was genuine and continuing and that the parties lived together, or that they did not live separately and apart on a permanent basis.[28] The Tribunal relied on a number of matters:
a)The Tribunal found the parties’ evidence on how they met and how their relationship developed to be “limited, vague and differed in some significant respects”,[29] and the parties could not satisfactorily explain why they decided to marry after a relatively short period of acquaintance.[30]
b)On the parties’ evidence, the applicant and sponsor held a small wedding in Sydney which the sponsor’s mother did not attend. The sponsor’s mother’s absence from the wedding suggested to the Tribunal that the parties’ relationship was not genuine and their marriage was contrived for the purpose of a favourable migration outcome for the applicant. The Tribunal did not accept the applicant’s explanation for her mother’s not attending, namely, that she was 71 years of age. [31]
c)The sponsor was unaware of the applicant’s visits interstate. That indicated to the Tribunal that the parties were not living together in a spousal relationship at and after the time of application and it did not accept the sponsor’s explanation that she had forgotten about these trips.[32] The Tribunal found the evidence to indicate the sponsor was on a very limited income and if the parties had been in a genuine relationship it would have been expected that the parties would have discussed the cost and circumstances of these visits at some length and that the visits would have been significant events for the applicant and the sponsor.[33]
[27] CB127, [47]
[28] CB126, [36]
[29] CB126, [37]
[30] CB126, [39]
[31] CB126, [40]
[32] CB126, [42]
[33] CB126, [42]
The Tribunal considered the evidence of the parties’ financial circumstances not to be consistent with the parties’ being in a genuine relationship.[34] While the applicant and the sponsor held a joint bank account the sponsor did not know anything about the applicant’s second bank account and the applicant could not explain why the applicant and the sponsor opened a joint account when the sponsor’s pension income is not paid into that account.[35]
[34] CB127, [43]
[35] CB126, [43]
Before the Tribunal there was little evidence that the applicant shared a household with the sponsor or her mother. The sponsor had not advised the Department of Housing that the applicant was living in the apartment; and taken with its other findings, the Tribunal was not satisfied the parties have set up a joint household together.[36]
[36] CB127, [44]
The Tribunal was not satisfied the parties represented themselves to other people as a married couple because there was no evidence of joint travel, membership of organisations, evidence from independent third parties or credible photographic evidence; and apart from the initial statements made by friends of the applicant’s contained in the applicant’s Partner visa application, there was no evidence indicating any social recognition of the parties’ relationship.[37]
[37] CB127, [45]
The Tribunal was also not satisfied there was evidence that the parties had a commitment to each other. The Tribunal relied on the sponsor’s evidence that she would not join the applicant if he departed Australia, which indicated a lack of commitment to the relationship by the sponsor. The Tribunal was not satisfied with the sponsor’s reasoning that she needed her Australian medication and health support because the Tribunal expected the parties would have discussed how they would communicate and whether the sponsor would travel for a visit if the applicant had to depart.[38]
[38] CB127, [46]
The Tribunal found the applicant did not satisfy the criteria contained in Schedule 3 to the Regulations because the last substantive visa the applicant held ceased on 4 September 1998 and the applicant applied for a Partner visa on 13 March 2013.[39] The Tribunal also was not satisfied there were compelling reasons for not applying criterion 3001 of Schedule 3 to the Regulations. In particular it did not find the following matters to be compelling reasons:
a)The sponsor’s health, because it appeared the sponsor had been able to look after herself for a significant period of time before her marriage to the applicant and without significant difficulty.[40]
b)The applicant’s having lived in Australia since 1998 and the difficulties the applicant may have in returning to China and re-establishing himself, because the Tribunal found the applicant chose to remain in Australia without any legitimate justification.[41]
[39] CB127-128, [51]
[40] CB129, [58]
[41] CB129, [61]
The Tribunal considered the applicant’s claim that he had recently been diagnosed with a particular medical condition and could not go back to China because he would suffer discrimination and would not be allowed to travel. The Tribunal was of the opinion that it could not take the applicant’s health into account because it had to consider whether compelling reasons existed at the time of application for the Partner visa.
Grounds of application
The application contains only one ground of application.
THE SECOND RESPONDENT (“the Tribunal”) failed to comply with section 359AA of the Migration Act when it was conducting the hearing of the review application made by the Applicant.
Although not stated in the application, the applicant, in his written submissions, also claims the Tribunal’s decision should be set aside because the Tribunal failed to disclose to the applicant the 375A certificate. The applicant relies on the judgment of Judge Jarrett in Singh v Minister for Immigration & Anor,[42] the Full Federal Court judgment on the appeal from his Honour’s judgment in Minister for Immigration and Border Protection v Singh, [43] and, to a lesser extent, the judgment of Beach J in MZAFZ v Minister for Immigration and Border Protection.[44]
[42] [2016] FCCA 2464
[43] [2016] FCAFC 183
[44] [2016] FCA 1081
Further, although not stated as a ground of application, the Minister, in his written submissions, accepts the Tribunal made an error in concluding that it was not open to it to consider the applicant’s reliance on his having been diagnosed with a particular medical condition because it was a recent illness that could not be taken into account. The Minister accepts the Tribunal fell into error (Waensila error) for the reasons identified in Waensila v Minister for Immigration and Border Protection.[45] The Minister submits, however, that this error does not require the quashing of the Tribunal’s decision because in any event the Tribunal did not accept the applicant satisfied cl.820.211 and cl.820.221 of Schedule 2 to the Regulations. The Minister submitted the Tribunal’s consideration of whether the applicant satisfied the criteria contained in these two clauses was entirely separate from its consideration of whether there were compelling reasons for waiving compliance with the Schedule 3 criteria; and it is well established that a court may dismiss an application for judicial review where there are clear independent grounds for a decision of the Tribunal which are unaffected by any error of law.[46]
[45] [2016] FCAFC 32
[46] First respondent’s Outline of Submissions [25] relying on Singh v Minister for Immigration and Border Protection [2013] FCA 1324 at [27] (Mansfield J)
The applicant was represented at the hearing by Mr Kassem. Mr Kassem made submissions only in relation to the Tribunal’s not disclosing the 375A certificate to the applicant; but he otherwise relied on the ground stated in the application. In these reasons for judgment, therefore, I will consider the ground stated in the application; the applicant’s reliance on the non-disclosure of the 375A certificate, and the Tribunal’s having made the Waensila error.
Failure to comply with s.359AA
The ground as stated in the application does not give any particulars of the respects in which it is said the Tribunal failed to comply with s.359AA of the Act, and hence, with s.359A of the Act. The ground does not identify the information it is said the Tribunal considered would be the reason or part of the reason for affirming the decision under review of which the Tribunal failed to give particulars. In any event, as I have already noted, the Tribunal did in its reasons state that it put to the applicant particulars of the information which it considered would be the reason or part of the reason for affirming the decision under review, it explained to the applicant why those particulars of the information were relevant, it advised the applicant that he could seek further time to comment or respond and the applicant elected to respond at the hearing before it.
The ground stated in the application, therefore, fails.
Ground based on non-disclosure of 375A certificate
As I have noted, it is common ground that the Tribunal did not disclose to the applicant the existence of the 375A certificate or of the documents covered by that certificate. Mr Kassem submits that this failure by the Tribunal means the applicant was denied procedural fairness.
Counsel for the Minister submits that the decision of a Tribunal will not necessarily be set aside only because the Tribunal has failed to disclose the existence of a certificate that has been issued under s.375A of the Act. Counsel refers to more recent decisions of the Full Federal Court,[47] and submits that those decisions establish the following principles:
a)To establish error, an applicant must demonstrate that the denial of procedural fairness resulted in a “loss of opportunity” to advance his or her own case.[48]
b)Such an error will not be open where the material which was covered by the review “on no view, could be thought to have prejudiced the interests of the applicant and could not, and did not, even possibly, undermine the applicant’s prospects of a favourable decision by the Tribunal”.[49]
c)This will be so, regardless of whether or not the certificate was validly issued under s.375A of the Act.[50]
[47] The cases are referred to in footnote 2 to the document titled “Section 375A Certificate – Speaking Note” Counsel handed up during the hearing before me.
[48] Relying on Minister for Immigration and Border Protection v CQZ15 [2017] FCAFC 194 at [67]: “Wherever there is an issue as to whether there has been a breach of procedural fairness of the kind alleged in Lam and in this case, the complainant must establish a loss of opportunity to advance his or her case, and whether he or she will succeed in this usually depends on the circumstances of the case.”
[49] Minister for Immigration and Border Protection v CQZ15 [2017] FCAFC 194 at [72]
[50] Minister for Immigration and Border Protection v CQZ15 [2017] FCAFC 194 at [72]
I accept the Minister’s submissions that these statements reflect the principles I should apply to determine whether there is any legal significance in the Tribunal’s not having disclosed the 375A certificate to the applicant.
The Minister relies on an affidavit which annexes the documents covered by the 375A certificate (documents in question). The Minister did so to demonstrate that: (a) the documents in question, even if they had been disclosed to the applicant, could not have “exerted any practical relevance in relation to the determination of the review”; (b) the applicant “could not be said to have been deprived of an opportunity to advance his case by reason of the Certificate or the” documents in question; and (c) no practical injustice resulted from their non-disclosure.[51]
[51] Section 375A Certificate – Speaking Note, [5]
I read the affidavit without any objection from Mr Kassem. I note this fact because, in his written submissions, Mr Kassem states the following:[52]
Due to the fact that the Affidavit was only received by the writer a day prior to submissions and hearing, further analysis is required of the contents of the information to which the Minister has waived privilege(Affidavit para 3).
The Applicant contends this Affidavit was not served as required and hence faces further difficulty in meeting his case.
[52] Applicant’s Outline of Submissions, [13], [14]
At the hearing before me Mr Kassem did not draw to my attention this part of his written submissions; and I did not otherwise notice this part of the applicant’s written submissions at the hearing. Mr Kassem did not apply for an adjournment, and he made submissions about the potential relevance of the documents in question. In these circumstances, I consider there is nothing to prevent me from considering this aspect of the applicant’s claims without affording the applicant any further opportunity to consider the contents of the documents in question.
That, then, requires me to identify the nature of the documents in question. These are as follows:
a)Documents numbered 45, 44, 43, 42, 41 and 40. These appear to be records maintained by the Department about the applicant recording such matters as the visas that had been issued to him, his residential and postal addresses, and movements of the applicant.
b)Documents numbered 39, 38, 37, 36 and 35. These appear to be similar documents to those listed in subparagraph 41(a) above but in relation to the sponsor.
c)A copy of a letter or email sent to the applicant on 6 March 2014,
d)Documents recording notes made by officers of the Department.
I understood Mr Kassem to have made four submissions. The first is procedural fairness required the Tribunal to disclose to the applicant the existence of the 375A certificate so that the applicant had an opportunity to consider for himself whether any of the documents were relevant.
Second one of the documents clearly assisted the applicant’s case, that document being the following file not recorded by an officer of the Department:
28/05/2013
Note type: Event: Note – Case
Recorded by: [Name of officer of the Department]
Note details:
Appears to meet Schedule 3 waiver
Third, the documents in question, to the extent they evidence the movement records of the applicant, were relevant to the evidence the applicant and sponsor gave as set out in paragraph 32 of the Tribunal’s reasons (which I have reproduced in paragraph 20 of these reasons) and to the following passage from paragraph 38 of the Tribunal’s reasons.[53]
[The applicant] stated they moved in 1-2 months after they met in February 2012; whereas [the sponsor] stated they moved in together immediately after they married in September 2012. The Tribunal does not accept [the applicant’s] explanation for the inconsistent evidence and considers that the conflict in the evidence indicates the parties have not lived together as spouses.
[53] CB126
Mr Kassem submitted that the Tribunal had relied on the documents in question in making the finding in paragraph 38 of the Tribunal’s reasons.
The fourth submission I understood Mr Kassem to have made is that the documents in question were potentially relevant to the applicant’s case to the extent they contain evidence of his movements, and the Tribunal should have disclosed the documents in question to the applicant in any event.
I do not accept Mr Kassem’s first submission because it is contrary to the principles I have set out in paragraph 36 of these reasons.
I also do not accept Mr Kassem’s second submission. The document identified in paragraph 43 of these reasons records an opinion by an officer of the Department that it “appears” the applicant met “Schedule 3 waiver”. That opinion, however, does not identify the facts and matters on which it is based. In those circumstances, had the opinion been disclosed to the applicant, and the applicant sought to rely on that opinion, it could not possibly have affected the Tribunal’s assessment of whether there were compelling reasons for not applying the Schedule 3 criteria because the opinion does not identify the facts and matters on which the opinion is based. For the same reason, had the opinion been disclosed to the applicant, it could not have led the applicant to pursue some investigation he failed to undertake, or otherwise produce some evidence that would or could have affected the Tribunal’s assessment of whether there were compelling reasons for not applying the Schedule 3 criteria. In short, the Tribunal’s not disclosing the opinion did not result in a loss of opportunity by the applicant to advance his case.
Counsel for the Minister submitted that even if the opinion could be considered to be relevant, the opinion could only have been relevant to the Tribunal’s consideration of whether compelling reasons existed to waive the application of the Schedule 3 criteria, and the Tribunal’s decision should not be set aside because the Tribunal affirmed the delegate’s decision on grounds that are entirely independent from its consideration of whether the Schedule 3 criteria should be waived. For the reasons I give below, this submission should be accepted.
I then turn to Mr Kassem’s third submission. I do not accept that the Tribunal relied on the documents in question in general, or in assessing the applicant’s and sponsor’s evidence the Tribunal set out in paragraph 32 of its reasons or in making its finding set out in paragraph 38 of its reasons. As counsel for the Minister submitted, the Tribunal relied on inconsistencies in the evidence given by the applicant and the sponsor before the Tribunal; the Tribunal did not rely on any inconsistency between the evidence the applicant or sponsor gave at the hearing and the information contained in any of the documents in question or in any other document. In other words, I do not accept that the documents in question undermined the applicant’s prospects of a favourable decision.
I finally turn to Mr Kassem’s fourth submission. That submission assumes the Tribunal was required to disclose all documents to an applicant that are potentially relevant to an application for review. The Tribunal, however, was under no such obligation. In any event, there is nothing in the documents in question that could have assisted the applicant in his case. In particular, there is nothing in the documents in question that reveal the movements of the applicant within Australia. That means that, even if the documents in question were disclosed to the applicant and the sponsor before they gave the evidence set out in paragraph 32 of the Tribunal’s reasons, the documents in question were incapable of assisting the applicant or the sponsor to revive their memory about whether the applicant travelled to Queensland, Western Australia, or Tasmania and, if so, when he may have done so.
This part of the applicant claims also fails.
Ground based on the Waensila error
As I have already noted, the Minister concedes that the Tribunal made an error in concluding it could not take into account the applicant’s claim that he has been diagnosed with a particular medical condition when considering whether there were compelling reasons for not applying the Schedule 3 criteria; but that this should not result in the Court quashing the Tribunal’s decision because the Tribunal relied on an independent ground for affirming the delegate’s decision.
The relevant principle to apply is that stated by Mansfield J in on Singh v Minister for Immigration and Border Protection:[54]
As to the second main issue, it is clear that, in appropriate circumstances, the Federal Circuit Court may dismiss an application for judicial review where there are clear independent grounds for a decision of the Tribunal unaffected by any error of law in its consideration of one particular ground: see eg VCAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 1; Naif v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 114 at [17] and VBAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965 at [33] and NAUW v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1086 at [24].
[54] [2013] FCA 1324 at [27]
The applicant made no submissions against the Minister’s submission that the Tribunal’s conclusion that the applicant did not satisfy the criteria stated in cl.820.211 and cl.820.221 of Schedule 2 to the Regulations constituted clear independent grounds for the Tribunal’s affirming the delegate’s decision not to grant the applicant a Partner visa. In my opinion, the Minister’s submission is correct, and the Tribunal’s not taking into account the applicant’s claim of his being diagnosed with the particular medical condition did not result in the Tribunal making a jurisdictional error. Alternatively, if the Tribunal’s error went to its jurisdiction, the Court in its discretion should not grant any remedy because the Tribunal affirmed the delegate on independent grounds which I have concluded are not affected by any jurisdictional error.
Disposition
I propose to order that the application be dismissed.
I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Date: 29 March 2018
0
10
3