Lim v Minister for Immigration
[2018] FCCA 788
•28 May 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| LIM v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 788 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a prospective marriage visa – Tribunal not satisfied that the parties genuinely intended to marry or that the parties genuinely intended to live together as spouses – whether the Tribunal misapplied the visa criteria, was biased or acted unreasonably considered – no jurisdictional error. |
| Legislation: Marriage Amendment (Definition and Religious Freedoms) Act 2017 (Cth) Migration Act 1958 (Cth), ss.5CB, 5F Migration Regulations 1994 (Cth) |
| Cases cited: Abebe v The Commonwealth (1999) 197 CLR 510 Attorney-General (NSW) v Quin (1990) 170 CLR 1 Jian Xin Lui v Minister for Immigration [2001] FCA 1437 Minister for Immigration v Angkawijaya [2016] FCAFC 5 Minister for Immigration v JiaLegeng (2001) 205 CLR 507; [2001] HCA 17 |
| Applicant: | MOUY LIM |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3563 of 2016 |
| Judgment of: | Judge Driver |
| Hearing dates: | 29 March, 4 April 2018 |
| Delivered at: | Sydney |
| Delivered on: | 28 May 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr A N Silva, with Mr N G Silva |
| Solicitors for the Applicant: | Andrew Lee Lawyers |
| Counsel for the Respondents: | Ms A B Douglas-Baker |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application as amended on 10 March 2017 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3563 of 2016
| MOUY LIM |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant (Ms Lim) seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 10 November 2016. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the visa applicant (Mr Keo) a prospective marriage visa. The following statement of background facts is derived from the submissions of the Minister.
On 19 May 2015 Mr Keo applied for the visa.
It was a requirement at the time of application that the parties satisfied clause 300.215 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations), which provided as follows:
The applicant establishes:
(a) that the parties genuinely intend to marry; and
(b)that the marriage is intended by the parties to take place within the visa period.
It was also a requirement at the time of decision[1] that the parties satisfied clause 300.216 of the Regulations, which provided as follows:
[1] Clause 300.221 of the Regulations.
The Minister is satisfied that the parties genuinely intend to live together as spouses.
“Spouse” was defined in s.5F of the Migration Act 1958 (Cth) (Migration Act) at the time of the Tribunal’s decision[2] as follows:
(1)For the purposes of this Act, a person is the spouse of another person if, under subsection (2), the 2 persons are in a married relationship.
(2)For the purposes of subsection (1), 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
[2] Section 5F of the Migration Act as it was prior to the amendments introduced by the Marriage Amendment (Definition and Religious Freedoms) Act 2017 (Cth) (Act No 129 of 2017), which commenced on 8 December 2017.
(d) they:
(i) live together; or
(ii) do not live separately and apart on a permanent basis.
(3)The regulations may make provision in relation to the determination of whether one or more of the conditions in paragraph 2(a), (b), (c) or (d) exist. The regulations may make different provision in relation to the determination for different purposes whether one or more of those conditions exist.
Note: Section 12 also affects the determination of whether the condition in paragraph 2(a) of this section exists.
Regulation 1.15A of the Regulations provided as follows:
(1)For subsection 5F(3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5F(2)(a), (b), (c) and (d) of the Act exist.
(2) If the Minister is considering an application for:
(a) a Partner (Migrant) (Class BC) visa; or
(b) a Partner (Provisional) (Class UF) visa; or
(c) a Partner (Residence) (Class BS) visa; or
(d) a Partner (Temporary) (Class UK) visa;
the Minister must consider all of the circumstance of the relationship, including the matters set out in subregulation (3).
(3) The matters for subregulation (2) are:
(a) the financial aspects of the relationship, including:
(i) any joint ownership of real estate or other major assets; and
(ii) any joint liabilities; and
(iii) the extent of any pooling of financial resources, especially in relation to major financial commitments; and
(iv) whether one person in the relationship owes any legal obligation in respect of the other; and
(v) the basis of any sharing of day-to-day household expenses; and
(b) the nature of the household, including:
(i) any joint responsibility for the care and support of children; and
(ii) the living arrangements of the persons; and
(iii) any sharing of the responsibility for housework; and
(c) the social aspects of the relationship, including:
(i) whether the persons represent themselves to other people as being married to each other; and
(ii) the opinion of the persons’ friends and acquaintances about the nature of the relationship; and
(iii) any basis on which the persons plan and undertake joint social activities; and
(d)the nature of the persons’ commitment to each other, including:
(i) the duration of the relationship; and
(ii) the length of time during which the persons have lived together; and
(iii) the degree of companionship and emotional support that the persons draw from each other; and
(iv) whether the persons see the relationship as a long-term one.
(4)If the Minister is considering an application for a visa of a class other than a class mentioned in subregulation (2), the Minister may consider any of the circumstances mentioned in subregulation (3).
Ms Lim and Mr Keo were each interviewed by officers of the Minister’s Department on 4 January 2015.[3] The delegate considered the information given in those interviews, and the witness statements provided by Ms Lim[4] together with photographs[5] of Ms Lim and Mr Keo but was not satisfied that Ms Lim and Mr Keo genuinely intended to live together as spouses.[6] Accordingly, the delegate found that Mr Keo did not meet clause 300.216 and therefore that Mr Keo did not meet the criteria for the grant of the visa.[7]
[3] Court Book (CB) 135.1.
[4] CB 138.5.
[5] CB 138.4.
[6] CB 139.7.
[7] CB 139.7.
On 27 January 2016 Ms Lim applied to the Tribunal for a review of the delegate’s decision.[8]
[8] CB 140-150.
On 19 October 2016 Ms Lim appeared before the Tribunal to give evidence and present arguments. The Tribunal also received evidence from Ms Lim’s mother and a friend, as well as Mr Keo (in Cambodia). Ms Lim was represented by a migration agent.[9]
[9] Decision at [4]-[5].
At the hearing Ms Lim and Mr Keo provided further documentation to support their application.[10]
[10] Decision at [11]-[12].
On 10 November 2016 the Tribunal affirmed the decision under review.[11]
[11] CB 546-554.
The Tribunal’s decision
The Tribunal identified as the issues to be determined:
a)whether it was satisfied that at the time of application the parties had a genuine intention to marry, and that the marriage was intended to take place within the visa period;[12]
b)whether it was satisfied that at the time of application the parties genuinely intended to live together as spouses;[13] and
c)whether the parties continued to satisfy the criteria in clauses 300.215 and 300.216 at the time of decision.[14]
[12] Clause 300.215; Decision at [36].
[13] Clause 300.216; Decision at [45].
[14] Clause 300.221; Decision at [44].
The Tribunal made the following findings:
a)the parties had had no meaningful discussions about their forthcoming wedding, such discussions as had occurred were conducted with a celebrant named Natalie Olive (Ms Olive), those discussions were with the assistance of a Khmer interpreter, no enquiries were made about a Khmer-speaking celebrant,[15] and moreover, at the hearing, Ms Lim had forgotten that she had a Notice of Intention to Marry from a celebrant which expired prior to the hearing;[16]
[15] [37].
[16] [41].
b)Ms Lim, having left enquiries about a celebrant in the hands of her agent, was disengaged from making arrangements for her forthcoming wedding in circumstances where, having been married before, the Tribunal would expect that she would be familiar with the process and, as the Australian-based party, would have made enquiries about a suitable celebrant who understood her wishes and spoke her language and not leave such arrangements in the hands of an agent;[17]
[17] [39].
c)even accepting Ms Lim’s evidence that the parties might not want to make detailed plans in the event that their plans were crushed if the visa was refused,[18] the extent of the plans that had been made on Mr Keo’s evidence were that the parties planned to get married in Australia by a celebrant, which was relevant to an assessment of the extent to which the wedding plans had been discussed by the parties and therefore relevant to an assessment of the genuineness of the parties’ intention to marry;[19]
[18] [40].
[19] [41].
d)it appeared to the Tribunal that the “only reason compelling” the parties to marry in Australia was the grant of a visa to travel to Australia, this in light of the fact that the majority of the parties’ family and friends were in Cambodia and only Ms Lim’s parents were in Australia;[20]
[20] [42].
e)the lack of planning, the lack of consideration of how the wedding itself will be conducted and a degree of tentativeness about those arrangements all pointed to a lack of commitment on the part of both parties to be married;[21]
[21] [43].
f)it was therefore not satisfied that the parties have a genuine intention to marry and therefore was not satisfied that the requirements of clause 300.215 had been met;[22]
[22] [44].
g)it placed little weight on the parties’ joint ownership and joint liabilities as the parties were residing in separate countries;[23]
[23] Regulation 1.15A(3)(a); [47].
h)it placed some positive weight on the recognition of the parties’ relationship as evidenced by:
i)the statements of family and friends and photographs of the parties together, including with family,
ii)the parties undertaking some social activities together, and
iii)that the families of the parties are known to each other and had travelled together on several occasions;[24]
i)it placed no negative weight on the fact that the parties had no joint responsibility for the care and support of children or maintaining a home together, given that the parties live in separate countries;[25]
j)there was an absence of sufficient or persuasive oral and documentary evidence to satisfy it that the parties’ intention to live together as spouses is genuine;[26]
k)in support of this finding, the Tribunal found that the parties had spent little time together and no time alone, Ms Lim had not travelled to see Mr Keo in over 18 months and that the reluctance to spend money (notwithstanding the claimed limited finances) in order to spend more time in each other’s company pointed to a lack of commitment by the parties to their relationship, telephone contact being insufficient in an “already long-distance relationship lacking in intimacy” in circumstances where neither party could give the Tribunal anything more than “perfunctory” information about the other’s lives, interests, personal characteristics, reasons for wanting to marry or plans for the future;[27]
l)the Tribunal was therefore not satisfied the parties had a mutual commitment to a shared life as husband and wife or that their relationship is genuine and continuing;[28] and
m)it was therefore not satisfied that the parties had, at the time of application, and have, a genuine intention to live together as spouses and therefore was not satisfied that the requirements of clause 300.216 had been met.[29]
[24] Regulation 1.15A(3)(c); [48].
[25] Regulation 1.15A(3)(b); [50].
[26] Regulation 1.15A(3)(d); [51].
[27] [52]-[54].
[28] [55].
[29] [56].
The current proceedings
These proceedings began with a show cause application lodged on 14 December 2016. Ms Lim now relies upon an amended application filed on 10 March 2017. There are four particularised grounds in that application:
(1)The Tribunal made jurisdictional error in that in considering whether the requirements of Migration Regulations Clause 300. 215 were met the Tribunal erred in various ways
Particulars
(a)By making a finding that it is·implausible that the review applicant talked to marriage celebrant Natalie Oliver: [37]
(b)By making a finding without any basis that their evidence in relation to wedding plans was rehearsed : [38] & [40]
(c)By imposing requirements which are harsh and not required by cl 300.215:
(i) that the sponsor should have engaged Khmer speaking marriage celebrant and thus she was disengaged from making marriage arrangement: [39].
(ii) that the couple should have planned to marry in Cambodia: [42].
(iii) that there was lack of planning or consideration of the wedding: [43]
(2)The Tribunal made jurisdictional error in that the Tribunal misunderstood the requirements of the Migration Regulations Clause 300.216 and imposed conditions harsher than that required
Particulars
(a)The sponsor should have used the meagre savings of $3000 of the visa applicant to travel to see the visa applicant, thus imposing her own personal standard. See [52].
(b)They didn't have meaningful plan for the future. See [55].
(c)They didn't spend time together alone, in spite of the cultural norms of the applicants. See [50] & [52]. Contradicting between [50] and [52] on this issue.
(3)The Tribunal made jurisdictional error in that the Tribunal caused apprehension of bias in the way it conducted the hearing and made the decision.
Particulars
(a)The Tribunal asked questions emphasising matters that appeared to misunderstand the culture of the applicants and appear to impose the cultural norm of the Tribunal member on the applicants.
(b)The Tribunal didn't appear open to persuasion and it appeared inflexible in its approach.
(c)The Tribunal appeared fixed in its thinking as to how people should behave without allowing for the diversity and cultural difference.
For (a) to (c) above see Transcript Pg 2 ln 42 to 44; Pg 8 ln 39 Pg 9 ln 24; Pg 12 ln 36 to 39; Pg 23 ln 20 to ln 44; Pg 24 ln 16-17; Pg 33 ln 40 to Pg 34 ln 11
(d)The Tribunal failed to inquire and thus failed to exercise its jurisdiction. This it did by failing to utilise the witnesses to ascertain the relevant issues and only had discussions which was perfunctory.
(4)The Tribunal was unreasonable in making the decision that Cl. 300.215 and Cl 300.216 were not satisfied
Particulars
(a)The Tribunal was unreasonable in that although that the review applicant and the visa applicant provided significant information that they intend to marry and that they intended the marriage to take place within the visa period the Tribunal stated it was not satisfied that cl 300.215 was met, whereas it should have been satisfied.
(b)The Tribunal was unreasonable in that although that the review applicant and the visa applicant provided significant information that they intend to live together as spouses the Tribunal stated it was not satisfied that cl 300.216 was met, whereas it should have been satisfied.
(errors in original)
In addition to the court book filed on 1 March 2017 I have before me as evidence the following affidavits:
a)Ms Lim’s affidavit made on 10 March 2017 to which is annexed a transcript of the Tribunal hearing held on 20 October 2016; and
b)Ms Lim’s affidavit made on 29 March 2018 to which is annexed a form of Notice of Intention to Marry.
Counsel for Ms Lim and the Minister filed pre-hearing written submissions and also made extensive oral submissions at the trial of the matter which was conducted over two days on 29 March and 4 April 2018.
Consideration
At the outset, I observe that, despite extensive and intense efforts by counsel for Ms Lim, over two days, to deconstruct and re-frame the reasons of the Tribunal in terms amenable to judicial review, the arguments advanced on behalf of Ms Lim struggle to rise above a simple dispute over the merits of the Tribunal decision.
Secondly, much was said in argument about the cultural sensitivity of Ms Lim and Mr Keo and the alleged cultural insensitivity of the Tribunal. The issues of concern to the Tribunal were the lack of engagement by Ms Lim in the marriage planning, the superficial nature of the parties’ relationship and their lack of knowledge about each other. I see no particular cultural importance in those issues. This is particularly the case with Ms Lim, who is an Australian citizen and long term resident and who has had two prior relationships, the second of which was not a married relationship and which produced a child.
Thirdly, the impetus for the relationship between Ms Lim and Mr Keo seems to have come from their families. There are some indications of an arranged marriage. Something could have been made of this in answer to the Tribunal’s concerns, but was not. Perhaps it should have been. An arranged marriage may nevertheless meet the visa criteria but, for reasons unknown to me, Ms Lim and Mr Keo did not pursue that issue with the Tribunal.
I turn now to consider the grounds of review.
Ground 1
The complaint under Ground 1 is that the Tribunal made a jurisdictional error in that in considering whether the requirements of clause 300.215 were met, the Tribunal erred in various ways.
Ms Lim notes that clause 300.215 requires that at the time of the application, the parties have a genuine intention to marry, and that the marriage is intended to take place within the visa period. The intended period is nine months. The Parliament has allowed nine months for an applicant to get married to apply for the next step, that is a partner visa (subclass 820), and that is said to show that Parliament did not intend applicants to “rush in and get married” and this “has to be kept in mind”.
As to the errors said to have been made by the Tribunal, first at [37][30] the Tribunal stated that:
…Her only discussions were, according to her evidence, conducted with the assistance of an interpreter with a celebrant named Natalie Olive who did not speak Khmer. The Tribunal finds this account implausible and does not accept that any such conversation took place.
[30] CB 551.
The Tribunal did not explain why it made such an implausibility finding. The Tribunal by making a finding that it was implausible that Ms Lim talked to a marriage celebrant named Ms Olive, is said to have made an arbitrary and seriously adverse finding without any basis and thus it was unreasonable, because it was not open to make that finding. Earlier at [18] the Tribunal had stated that:[31]
The review applicant told the Tribunal that the wedding would follow the Buddhist culture and they would celebrate at home with friends and relatives. Pressed about how the legal aspects of the wedding would be dealt with she told the Tribunal that she had not yet arranged a celebrant but will do so when the visa applicant arrives. The Tribunal reminded the review applicant that there was a notice of intention to marry on the file and that the celebrant would be someone called Natalie Olive. The review applicant claimed that she had talked to her but cancelled the existing arrangements because the visa applicant did not have a visa. The Tribunal asked if the celebrant could speak Khmer and the review applicant claimed that she did not but they communicated with the assistance of an interpreter. The Tribunal suggested that it seemed unusual to choose a celebrant who could not speak her language and asked the review applicant if she had made inquiries to find a Khmer speaking celebrant. She said that she had not.
[31] CB 548.
The letter from the marriage celebrant appears at CB 94. The important information therein is as follows:
a)the marriage celebrant received a Notice of Intention to Marry on 4 May 2015;
b)the marriage was intended to take place on 6 May 2016 or such other dates subject to Mr Keo’s arrival; and
c)the notice was valid for 18 months and would expire on 4 November 2016.
The Tribunal hearing was held on 20 October 2016. At the time of the hearing there was no way the notice would have remained valid for any future wedding as its expiry was just 15 days away. Ms Lim accepts that the visa could not have been granted by the Tribunal if Ms Lim had succeeded and the case had to go back to the Minister’s Department.
The Tribunal is nevertheless said to have acted illogically in that, in the absence of a suggestion that Ms Lim got the Notice of Intention to Marry fraudulently, the fact that the marriage celebrant received a Notice of Intention to Marry from Ms Lim makes it “certain” she had talked to her. It was also said to have been logical for Ms Lim to “cancel” the Notice once the visa application was refused by the delegate because there was no point in the Notice. Further, it is said to have been unreasonable to suggest that there was something wrong with booking a celebrant who does not speak Khmer.
Secondly, Ms Lim contends that it was not open for the Tribunal to make a finding “without any basis” that her and Mr Keo’s evidence in relation to their wedding plans was rehearsed.[32] The Tribunal’s finding in this regard is said to be “unrealistic and unreasonable”.
[32] CB 551 [38] and [40].
The Tribunal stated that there was not much of a plan for the wedding. Ms Lim asks rhetorically, if there was not much of a plan, then how could it be that it was rehearsed? There is said to be nothing to rehearse in that it was “too basic”. Ms Lim told the Tribunal that she did not want to make detailed plan only to have those plans crushed if the visa were refused. This is said to be common sense.
Thirdly, Ms Lim contends that by imposing requirements at [39] which were harsh and not required by clause 300.215, the Tribunal has shown that it misunderstood the regulations. The Tribunal held that Ms Lim “should” have engaged a Khmer speaking marriage celebrant and thus she was disengaged from making marriage arrangements.
The Tribunal implied at [42] that the couple should have planned to marry in Cambodia. The Tribunal stated that:
The Tribunal does not accept that two people who are committed to marrying each other out of love, would not want to do so in the presence of the family and loved ones. Despite the visa applicant’s denial, it appears to the Tribunal that the only reason compelling the parties to marry in Australia, where there are only two family members and few friends, is the grant of a visa to travel to Australia.
The Tribunal is said to have failed to deal with a powerful “cultural reason” given Ms Lim, which is that the couple want to live together once they are married and they do not want to live separately, which would result from a marriage in Cambodia. Ms Lim did not want to leave behind her husband after marriage.
Ms Lim points to a discussion in the transcript at page 16:[33]
[33] Lines 6-26.
INTERPRETER: Because, because he think, like you know, he going to be, he doesn’t know when he going to come, because like say if he had wedding in Cambodia, married in Cambodia and they have to prepare all the documents to apply to, you know for the visa to live here. So in that case, have a long gap that we live away each other but he can come over and, you know we have engagement and when he come over get married and yeah the gap going be closer.
TRIBUNAL: So I’m not sure I understand that answer. So, my question is why, if all your family, or most of your family are in Cambodia and all of his family are in Cambodia, why wouldn’t you have got married there with your family and friends and then applied for a spouse visa?
INTERPRETER: Because when we get married it means like we have to live together. But we don’t want to be like that. So we will say when he, when he come here we get married and we can live together so we don’t live separately. So if, if, if we, if we got married like that and he live over there and I live here.
TRIBUNAL: I understand.
INTERPRETER: So we miss each other.
Ms Lim also complains about the imposition of a “value judgment” as to who should be present for the marriage.
At [43] the Tribunal held that there was lack of planning or consideration of the wedding. The Tribunal held that it is not satisfied that the parties had a genuine intention to marry[34] because of:
a)the lack of planning;
b)the lack of consideration as to how the wedding itself would be conducted;
c)the degree of tentativeness; and
d)the above three factors pointing to a lack of commitment.
[34] Clause 300.215.
The Tribunal is said to have misunderstood what is meant by a genuine intention to marry. In the context of uncertainty as to whether the visa would be granted or not, already having “cancelled” the Notice of Intention to Marry because the visa was refused by the delegate and knowing that there is only nine months to get married once Mr Keo is here, it is said to be harsh to impose a requirement that there should have been definitive planning (or that the planning should not be tentative).
Ms Lim refers to the decision in Minister for Immigration v Angkawijaya[35], where the Full Federal Court agreed with me that the Tribunal, by imposing a requirement that there should be romantic love for there to be a de facto relationship, misunderstood the legislative requirements. Although we are not dealing with precisely the same issue, the principles are said to be equally applicable here.
[35] [2016] FCAFC 5.
In Angkawijaya at [61] Kenny and Griffiths JJ disagreed with my description of the Tribunal’s error as the imposition by it of a “value judgment” in applying the relevant legislative provision and later referred favourably to the statement by Conti J in Jian Xin Lui v Minister for Immigration[36] at [23]:
In determining the propriety of one person’s commitment to a marriage, the very nature of the task requires an evaluation, based on human experience, understanding and perception of the available spectrum of potentially relevant circumstances of each particular case.
[36] [2001] FCA 1437.
Although Conti J’s statement was in relation to commitment to a marriage, the Tribunal’s error in the current case is said to be characterised by its inability to understand that there is a spectrum of potentially relevant circumstances that can meet the different legislative provisions. Failure of the Tribunal to understand that is said to be a failure to understand the legislative provisions.
Similarly here, the Tribunal is said to have infused into the consideration the need for a definite plan for the wedding which is not part of the definition of an intention to marry. One can have an intention to marry without having a definite plan for the wedding. Ms Lim points out that two persons can just go to a registry and register their marriage and still live in a married relationship. She also complains that the failure of the Tribunal to recognise that the admitted tentativeness was due to the uncertainty of the grant of the visa and that a previous booking had been vacated.
Allsop CJ stated in Angkawijaya at [2] that the Tribunal member’s task involved careful and sensitive consideration of the evidence of the human relationship presented to the Tribunal. It is said to be clear in this case that this quality is lacking in the way the Tribunal considered the circumstances of the couple.
The error of the Tribunal under clause 300.215 is said to have been that it was not open to understand that there are several potential relevant circumstances within the available spectrum. The spectrum is quite wide to accommodate all human experiences.
I reject Ms Lim’s contentions, consistently with the Minister’s submissions. The first particular to this ground asserts that the Tribunal’s finding that it was implausible that Ms Lim had spoken with Ms Olive was not explained, was an arbitrary and adverse finding without any basis, and was therefore unreasonable and not open to the Tribunal to make.[37]
[37] Submissions at [7].
The Tribunal made a series of findings concerning Ms Lim’s claimed enquiries of Ms Olive. Material among those findings were that Ms Lim had forgotten that she had a Notice of Intention to Marry from Ms Olive,[38] that the Notice of Intention to Marry was provided by Ms Olive because Ms Lim’s agent knew Ms Olive, and that Ms Lim’s evidence was that she required a Khmer interpreter to speak with Ms Olive, having made no enquiries of a Khmer-speaking celebrant.[39] It was in the context of these findings that the Tribunal found Ms Lim’s account of a single conversation with Ms Olive to be implausible and found that the discussion did not take place as claimed by Ms Lim.[40] This adverse credibility finding was open to the Tribunal for the reasons it gave.
[38] [18], [41].
[39] [39].
[40] [37]..
The second particular asserts that the Tribunal made without any basis a finding that Ms Lim and Mr Keo’s evidence about their wedding plans was “rehearsed”.
The Tribunal made no such finding. Rather, the Tribunal put to Ms Lim the proposition that it found Ms Lim and Mr Keo’s evidence “rehearsed and lacking in sufficient detail to persuade it that they had conducted any meaningful discussions about their wedding”.[41]
[41] [38]
The third particular asserts that in its application of clause 300.215 the Tribunal (in effect) imposed requirements which were both harsh and not required by that clause, those requirements being that the review application should have engaged a Khmer-speaking celebrant,[42] that the parties should have planned to marry in Cambodia,[43] and that there was a lack of planning or consideration of the wedding.[44]
[42] [39].
[43] [42].
[44] [43].
The Tribunal did not impose any such “requirements”.
In respect of the first matter, the Tribunal found as set out in [13(b)] above. Properly construed, it is apparent that the Tribunal found Ms Lim disengaged and (in effect) not committed to making arrangements for the parties’ forthcoming wedding. Among the factual considerations relevant to that finding was the absence of enquiry about a Khmer-speaking celebrant. In approaching its consideration of the statutory task in this way, the Tribunal did not impose a “requirement” that Ms Lim engage a Khmer-speaking celebrant.
In respect of the second matter, the Tribunal found as set out in [13(c)] and [13(d)] above. Properly construed, it is apparent that the Tribunal found the parties’ claimed plans to marry in Australia unpersuasive in circumstances where only two family members and few friends lived in Australia but the majority of family and friends lived in Cambodia. When the Tribunal raised this with Ms Lim and Mr Keo, Ms Lim’s response did not engage “powerful cultural reason[s]”, as asserted by Ms Lim in her submissions,[45] but the reality that the parties would not marry until Mr Keo could come to Australia.[46] Having put this matter to Ms Lim and Mr Keo, the Tribunal found the only compelling reason for the parties to marry in Australia is the grant of the visa to travel to Australia. This finding was open to the Tribunal to make. In approaching its consideration of the statutory task in this way, the Tribunal did not impose a “requirement” that the parties should have planned to marry in Cambodia.
[45] [15].
[46] Transcript, page 16, lines 19-22.
In respect of the third matter, the Tribunal found as set out in [13(c)] and [13(e)] above. Properly construed, the Tribunal found that even allowing for uncertainties about Mr Keo’s visa status, the wedding plans such as they were on Mr Keo’s evidence, did not extend beyond the plan to marry in Australia by a celebrant.[47] This was relevant to a consideration of the extent to which such plans had been discussed between the parties and was therefore relevant to an assessment of the claimed genuineness of an intention to marry.[48] In approaching its consideration of the statutory task in this way, the Tribunal did not impose a “requirement” that, in effect, there be some more advanced form of planning or consideration of the details of the wedding.
[47] [41].
[48] [41].
In her submissions, Ms Lim relies on the Full Federal Court’s decision in Angkawijaya. In Angkawijaya, the Federal Court held that the “matters” referred to in regulation 1.09A(3)(a), (b), (c) and (d) and the enumerated considerations thereunder (a provision analogous with regulation 1.15A(3)) were not exhaustive of the matters to be taken into account in determining the existence of the relevant claimed relationship for migration purposes.[49] That being the case, matters such as whether there exists love and affection in the relationship (a matter not specified in the regulation) may be a matter relevant to determining the existence of the relevant claimed relationship but it is not determinative of the question.[50]
[49] In that case, a de facto relationship: s.5CB(1) and (2); [50].
[50] [2], [52]-[53].
The Federal Court held that while the application of s.5CB[51] and Regulation 1.09A[52] “necessarily involves an evaluation of those matters and considerations [identified in the relevant regulation] on the part of the relevant decision-maker”, that evaluation must be “balance[d]” against all the relevant circumstances.[53] In Angkawijaya, the error on the part of the Tribunal was not that it imposed a “value judgment” but rather that it misconstrued and misapplied the relevant regulation such that it imposed, in effect, an additional requirement that it be satisfied there existed “love and affection” in the relevant relationship.[54]
[51] Here, s.5F.
[52] Here, regulation 1.15A.
[53] [61] per Kenny and Griffiths JJ.
[54] [3] per Allsop CJ and [62] per Kenny and Griffiths JJ.
As to the evaluation process, the Federal Court, as already outlined at [38] above, referred[55] with approval to what was said by Conti J in Jian Xin Lui at [23]:
In determining the propriety of one person’s commitment to a marriage, the very nature of the task requires an evaluation, based on human experience, understanding and perception of the available spectrum of potentially relevant circumstances of each particular case.
[55] At [61].
Properly construed, the Tribunal engaged in a process of evaluating the parties’ evidence concerning their plans to marry. That evaluative process required consideration of the evidence of each of the parties to the proposed marriage. Having found that Mr Keo’s evidence was limited, the Tribunal found, as was open to it, that there had been only limited discussion between the parties about their proposed wedding plans. While Ms Lim spoke of a Buddhist wedding, among other matters, Mr Keo spoke only of a celebrant. The Tribunal found, as was open to it, that the absence of not only detail, but a consideration of how the wedding would be conducted, were matters, as a matter of human experience, relevant to an assessment of the parties’ genuine intention to marry. In making the findings which it did, the Tribunal expressly allowed also for relevant circumstances, most particularly the uncertainties surrounding the outcome of the visa application.[56]
[56] [41].
This ground does not disclose jurisdictional error.
Ground 2
The complaint under Ground 2 is that the Tribunal made a jurisdictional error in that the Tribunal misunderstood the requirements of clause 300.216 of the Regulations and imposed conditions harsher than that required.
Clause 300.216 requires that at the time of application ‘the parties genuinely intend to live together as spouses’.
At [51] the Tribunal stated:
The parties have told the Tribunal that they are committed to a life together as man and wife but have provided insufficient or persuasive oral and documentary evidence to satisfy the Tribunal that their intention to do so is genuine.
Ms Lim complains that the Tribunal has not stated, for a couple who live in different countries, what documentary (or oral) evidence they could have provided to support the fact that they genuinely intend to live together as spouses. Secondly Tribunal is said to have taken a “culturally insensitive” approach to their intimate relationship.
That approach is said to be clear from the following passage in the Tribunal’s reasons:[57]
For example, the parties gave evidence that they have spent little time together and no time at all alone in each other’s company. The Tribunal notes that they claim that they want to respect their tradition and only live together after they are married…
[57] CB 553 at [52].
The above statement is said to come as the explanation for the Tribunal’s negative finding at [51]. The Tribunal is said to have misunderstood the criteria in clause 300.216. The legislation only requires an intention to live together. It does not, in Ms Lim’s submission, require that they engage in an intimate physical relationship to satisfy the requirement. The statement at [53] about long-distance relationships lacking in intimacy is said to support a finding of unreasonableness.
Further, the Tribunal at [52] is said to have implied that Ms Lim should have used Mr Keo’s meagre savings of US$3,000 to travel to see him, thus imposing its own personal standard. The failure to use that $3,000 and travel was seen as adverse.
At [54] the Tribunal stated:
Furthermore, despite the time they have spent talking on the phone, neither party could give the Tribunal anything more than the most perfunctory information about the other’s lives, interests and personal characteristics, reasons for wanting to marry or plans for the future.
The use of the word “perfunctory”, which means “carried out without real interest, feeling, or effort”, is said to demonstrate error. Ms Lim opines that in the “eastern culture” anything involving a sexual relationship is not spoken about and people are shy to discuss those private matters. The people are “reluctant to show their emotions openly less they are viewed with contempt in their country.”
Ms Lim submits that it is clear from their evidence that both she and Mr Keo respect their culture and the Tribunal imposed its “Western cultural values” and assessed Ms Lim’s degree of conformation to those values as a tool in assessing the criteria.
At [55] the Tribunal held that Ms Lim and Mr Keo did not have a meaningful plan for the future. The Tribunal is said to have been illogical and prescriptive. Ms Lim asserts that they had a “simple plan” and a “sensible and common sense and rational” plan.
At [55] the Tribunal stated that:
The parties stated plans for their future lacked meaningful detail and amounted to little more than studying English, getting a job, finding a house of their own and having two more children. These are statements, not plans…
Ms Lim complains that “any other decision maker would have considered this a common sense, realistic and practical approach and a short and simple and realistic plan.”
The Tribunal further stated that:[58]
The parties were not able to demonstrate to the Tribunal that they have given any serious thought about how they would achieve those aims or whether they had the financial capacity and commitment to do so.
[58] CB 553 at [55].
Ms Lim complains that it is difficult to understand how one is able to demonstrate the matters of concern to the Tribunal.
The Tribunal stated at [56] that:
The Tribunal has carefully considered and weighed all the evidence provided and equally, carefully considered and weighed all aspects of the parties’ relationship.
The above statement is said to be far from reality.
The Full Federal Court in Angkawijaya noted a submission by the Minister as follows:[59]
The Minister’s submissions may be summarised as follows. First, it was unhelpful of the primary judge to approach the matter on the basis of whether the Tribunal had imposed a “value judgment” in circumstances where the relevant question under s 5CB(2)(a) was whether the parties had a “mutual commitment to a shared life to the exclusion of all others”. This necessarily required the Tribunal to make an evaluative judgment. This did not mean, however, that the Tribunal could assess the relationship by reference to its own idiosyncratic moral beliefs: it had to exercise its judgment by reference to the relevant legislative criteria.
[59] At [42].
Ms Lim concludes that the Tribunal assessed her relationship with Mr Keo through an idiosyncratic and highly subjective lens.
I also reject this ground of review and accept the Minister’s submissions. The first particular asserts that the Tribunal imposed its own “personal standard” to the effect that Ms Lim should have applied Mr Keo’s (or her own) meagre savings to travel to see him.[60]
[60] [52].
The second particular asserts that the Tribunal imposed a condition that the parties did not have a meaningful plan for the future.[61]
[61] [55].
The third particular asserts that the Tribunal imposed a condition that the parties (in effect) spend time together alone.[62]
[62] [50], [52].
The Tribunal’s findings with respect to each of the above particulars must be understood in context of the Tribunal’s global finding that there was an absence of evidence before it such as would satisfy the Tribunal of the parties’ intention to live together as spouses.[63] Among the matters relevant to this finding were the matters set out in [13(k)] above. Properly construed, the Tribunal considered the parties’ evidence about time spent together and the circumstances of that time together, how recently they had been in each other’s presence and the contents of their long-distance communications. All of these matters, taken together and in light of what was described as the “perfunctory” information each party had about the other party’s life, were matters relevant to an assessment of the parties’ mutual commitment to a shared life together.[64] Even allowing for the uncertainties surrounding the outcome of the visa application,[65] the Tribunal, in its assessment of the parties’ commitment to each other, considered that the parties would have more personal knowledge of each other’s lives and circumstances.
[63] See [13(j)] above.
[64] [55].
[65] [41].
The Tribunal’s consideration of these matters allowed for the fact that the parties were living in separate countries[66] and the Tribunal did not, as Ms Lim submits, place emphasis on the fact that the parties had spent little time alone.[67] It is not the case that the Tribunal was “culturally insensitive” to the circumstances of the parties. Nor is it the case that the Tribunal’s reasons suggest there exists a requirement for “intimacy” or time alone or any other such matter. The Tribunal’s reference to “intimacy” in [53] should be understood in context of its express acknowledgement of the parties’ long distance relationship which necessarily lacked physical intimacy. The reference to “intimacy” in this context must be construed in light of the findings which followed in [54] that the parties, despite engaging in long-distance telephone calls, could provide little information about each other. The information that could be provided was “perfunctory”.[68]
[66] Applicant’s submissions at [30].
[67] Applicant’s submissions at [30].
[68] [54].
The Tribunal’s reference to the parties’ not spending “even a small amount of discretionary funds” to see each other “at least once in over 18 months”,[69] in the context of the Tribunal’s other findings as to the lack of knowledge of the parties about each other’s lives and circumstances, was another matter which was relevant to an assessment of the extent of the parties’ commitment to a shared life.[70] The Tribunal found that the parties’ decision in this regard was indicative of a “reluctance to invest” in spending more time in each other’s company.[71] The Tribunal did not elevate to a condition such a consideration but rather took it into account as a matter relevant to its assessment of the parties’ mutual commitment to the relationship.
[69] [52].
[70] [52].
[71] [52].
The Tribunal’s reference to an absence of “meaningful detail” in the parties’ stated plans for the future must be understood in the context of the Tribunal’s global finding that there was an absence of evidence before it such as would satisfy the Tribunal of the parties’ intention to live together as spouses[72] and its finding that each party had only “perfunctory” information about the other party’s life.[73] Properly construed, the Tribunal’s finding there existed a lack of “meaningful detail” in the parties’ stated plans for the future did not involve the Tribunal elevating to a condition that the parties have detailed plans, but rather that it took into account as a matter relevant to its assessment of the parties’ mutual commitment to the relationship the extent of any content or detail of the parties’ plans for the future. The Tribunal did not, as Ms Lim has submitted, subjectively assess the parties’ choices.[74]
[72] See [13(j)].
[73] [55].
[74] Applicant’s submissions at [47].
What is apparent is that the Tribunal was persuaded, by an absence of detail, to find the parties lacked mutual commitment. This finding was open to the Tribunal on the material before it for the reasons it gave.
This ground does not disclose jurisdictional error.
Ground 3
The complaint under Ground 3 is that the Tribunal made a jurisdictional error in that the Tribunal caused an apprehension of bias in the way it conducted the hearing and made its decision. The apprehension of bias is said to have arisen from the way the hearing was conducted and in combination with the decision made.
Ms Lim complains that the Tribunal construed “everything against the couple” in the decision it made. She and Mr Keo are two people coming from difficult financial circumstances and lacking in English language skills, but they have given evidence which is “straightforward”. Ms Lim contends that there should not have been any reason to doubt her intentions. She contends that the way the Tribunal dealt with the case could have caused an impartial observer to apprehend bias on the part of the Tribunal.
Ms Lim submits that the Tribunal asked questions emphasising matters that appeared to misunderstand the culture of Ms Lim and Mr Keo and appeared to “impose the cultural norm” of the Tribunal member on her and Mr Keo.
Ms Lim also contends that the Tribunal did not appear open to persuasion and it appeared inflexible in its approach.
The Tribunal is said to have appeared fixed in its thinking as to how people should behave “without allowing for the diversity and cultural difference”.[75]
[75] Ms Lim refers to the transcript, page 2, lines 42-44; page 8, line 39; page 9, line 24; page 12, lines 36-39; page 23, lines 20-44; page 24, lines 16-17; page 33, line 40 to page 34, line 11.
Ms Lim draws attention in particular to the following passages from the transcript of the Tribunal hearing:
TRIBUNAL: In the course of the hearing I may discuss with you information that will form the reasonable part of the reason why I will affirm this decision.[76]
[76] Page 2, lines 42-44.
…
So you can’t tell me if he has hobbies, or what he does with his time? You don’t have any idea, really why he has decided to change his entire life and turn it upside down and marry you and come to Australia. I know less about his life now than when I read the file.
INTERPRETER: Sorry?
TRIBUNAL: I know less about his life now, after talking to you, than I did at the beginning. You haven’t been to see him for over a year, that leads me to question your commitment. You want to spend the rest of your life with this person and you haven’t seen him in over a year. You haven’t made any detailed plans about your wedding. You say you are going to conduct the ceremony in English, which baffles me. Why would you do that? Plans for your future, include living in the house where you are currently living, he’s studying English might find a job, might move in the meantime, no idea really how you are going support yourselves financially. None of that is sufficiently detailed for me to believe that you’ve had any discussed any plans for the future or that you have an intention to marry in fact. So before I talk to other witnesses and call your husband, I would like to give you just another opportunity to try and deal with those issues that I have raised with you. We’ll have this discussion again after I’ve spoken to everybody else, if you like? And we can take an adjournment, but I will talk to your [fiancé and witnesses]. Do you want to talk to the witnesses first, Eliza, or do you want to call Cambodia?[77]
…
MR LEE: You’ve told the tribunal’s concern, is that you haven’t seen each other for over a year. You’ve mentioned there are some financial reasons for that? Is that correct?
INTERPRETER: Yes I did.
MR LEE: Can you explain what it is that you don’t, you don’t have the finances to travel to Cambodia, or what is the reason?
TRIBUNAL: She’s already said that she doesn’t, but (indistinct) and I’ve heard it and I just don’t accept it.[78]
…
So I’ll just ask you this one more time, because it is still not clear in my mind, is to why after living as a single man for your entire life you decided that you wanted to marry this woman?
INTERPRETER: Can I refresh the question? I don’t understand, please can we refresh the question?
TRIBUNAL: Okay we’ll do this in smaller pieces. You’ve been living as single man for 37 years. You tell me that you, and you’ve told your fiancé that you have never had another relationship. You have no hobbies and no interests. You work with your brother in a construction company and that is pretty much, all you do with your life. And you are going to turn all of that upside down. Move half way around the world. And marry and spend the rest of your life with a woman whom you have never spent a moment alone with. I would very much like to know why?
[77] Page 23, lines 20-44.
[78] Page 24, lines 7- 17.
INTERPRETER: I don’t really quite understand on, that one.
TRIBUNAL: All right we’ll move on. Is there anything that you want to talk to me about that you haven’t, that I haven’t asked you about?[79]
[79] Page 33, line 40 to page 34, line 11.
In her submissions, Ms Lim also contends that the Tribunal failed to inquire and thus “failed to exercise its jurisdiction”. She contends it did this by failing to utilise the witnesses to ascertain the relevant issues and only having discussions with them which were “perfunctory”.[80]
[80] see page 35, line 5 to page 37, line 5.
I prefer the Minister’s submissions on this ground. As to the allegation of apprehended bias, the test is whether the fair-minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the resolution of the question to be decided.[81]
[81] Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425; [2001] HCA 28 at 434-435 [27]-[29], per the Court (Gleeson CJ, Gaudron and Gummow JJ).
The series of exchanges between the Tribunal member, Mr Keo and Ms Lim does not support Ms Lim’s submissions. Examination of those exchanges discloses that in putting questions to Ms Lim and Mr Keo (who appeared with the assistance of their migration agent), the Tribunal member sought to elicit from Ms Lim and Mr Keo detail about their relationship and about their knowledge of each other. These questions were important as they were designed to elicit from Ms Lim and Mr Keo, who were in a long-distance relationship, the extent of their knowledge about each other’s lives, which were matters relevant to the Tribunal’s resolution of the issues before it.
There is nothing impermissible in the Tribunal’s engaging in such questioning in inquisitorial proceedings. There is nothing in the transcript which would suggest that the Tribunal member engaged in questioning which was overbearing or intimidatory of Ms Lim and Mr Keo.[82] To the extent that the Tribunal expressed concerns about the evidence given during the hearing, those concerns cannot be characterised as the Tribunal having come to a “fixed” conclusion “incapable of alteration”.[83] It cannot therefore be said that a fair-minded lay observer might reasonably apprehend the Tribunal did not bring an impartial mind to resolution of the issue before it.
[82] Ex parte H at [31].
[83] Minister for Immigration v JiaLegeng (2001) 205 CLR 507; [2001] HCA 17 at [71]-[72], per Gleeson CJ and Gummow J.
As to the allegation of a failure to inquire, it is not for the Tribunal to make out the parties’ case for them.[84] Ms Lim does not identify what inquiries the Tribunal failed to make. Rather, Ms Lim makes a generalised assertion of failure to inquire.
[84] Prasad v Minister for Immigration (1985) 6 FCR 155 at 169-170, per Wilcox J; Abebe v The Commonwealth (1999) 197 CLR 510 (at [187], per Gummow and Hayne JJ.
This ground does not disclose jurisdictional error.
Ground 4
The complaint under Ground 4 is that the Tribunal was unreasonable in making the decision that clause 300.215 and clause 300.216 were not satisfied.
Ms Lim contends that the Tribunal was unreasonable in that although she and Mr Keo provided significant information that they intend to marry and that they intended the marriage to take place within the visa period, the Tribunal stated it was not satisfied that clause 300.215 was met, whereas it should have been so satisfied.
The Tribunal is said to have acted unreasonably in that although Ms Lim and Mr Keo provided significant information that they intend to live together as spouses, the Tribunal stated it was not satisfied that clause 300.216 was met, whereas it should have been so satisfied.
I reject the proposition that the Tribunal’s findings were “unreasonable” because, in effect, the Tribunal did not accept Ms Lim and Mr Keo’s evidence.
Consistently with my opening observations, this ground does not rise above a request for impermissible merits review.[85]
[85] Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ (citing Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36 per Brennan J), and at 291 per Kirby J; Abebe at [195], per Gummow and Hayne JJ.
This ground does not disclose jurisdictional error.
Conclusion
Ms Lim has failed to establish that the decision of the Tribunal is affected by any jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding one hundred and four (104) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 28 May 2018
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