Makhmudkhodjaeva v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2020] FCAFC 88
•5 May 2020
FEDERAL COURT OF AUSTRALIA
Makhmudkhodjaeva v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 88
Appeal from: Makhmudkhodjaeva & Anor v Minister for Immigration and Anor [2019] FCCA 2992 File number: NSD 1 of 2020 Judges: RARES, KATZMANN AND CHARLESWORTH JJ Date of judgment: 5 May 2020 Catchwords: MIGRATION – application for judicial review of a decision of Administrative Appeals Tribunal – Tribunal affirming a decision to refuse to grant a child migrant visa – where Tribunal found the child’s sponsor was in a de facto relationship without considering or applying the definition of such relationship in s 5CB of the Migration Act 1958 (Cth) – where Tribunal refused sponsorship application because sponsor had not provided criminal record for de facto partner when delegate requested her to do so – where alleged de facto partner of sponsor serving a lengthy term of imprisonment at the time of the Tribunal’s decision – where Tribunal failed to determine whether any de facto relationship existed within the meaning of s 5CB at time of its decision as cl 101.222 of Sch 2 of the Migration Regulations 1994 (Cth) required – whether Tribunal committed jurisdictional error in applying reg 1.20KB(12) to refuse approval of sponsorship based on earlier failure to provide police check of alleged de facto partner Legislation: Migration Act 1958 (Cth) ss 5CB, 349, 368, 501, Pts 5, 7
Migration Regulations 1994 (Cth) reg 1.20KB cll 101.212, 101.222
Cases cited: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 Date of hearing: 5 May 2020 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 24 Counsel for the Appellants: Shane Prince SC with Stephen Lawrence Counsel for the Respondents: Anna Mitchelmore SC with Kim Pham Solicitor for the Respondents: HWL Ebsworth Lawyers ORDERS
NSD 1 of 2020 BETWEEN: NOZIMA MAKHMUDKHODJAEVA
First Appellant
MAFTUNAKHON MAKHMUDKHODJAEVA
Second Appellant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
FEDERAL CIRCUIT COURT OF AUSTRALIA
Third Respondent
JUDGES:
RARES, KATZMANN AND CHARLESWORTH JJ
DATE OF ORDER:
5 MAY 2020
THE COURT ORDERS THAT:
1.The appeal be allowed.
2.The orders made on 12 December 2019 by the Federal Circuit Court of Australia be set aside and, in lieu thereof, it be ordered that:
(a)A writ of certiorari issue to quash the decision of the second respondent made on 14 August 2018;
(b)A writ of mandamus issue to the second respondent to determine the second applicant’s application for a child (class AH) (subclass 101) visa in accordance with law; and
(c)The first respondent pay the applicants’ costs.
3.The first respondent pay the appellants’ costs.
4.Until further order, the name of the person said to be the de facto partner of the first appellant not be published and any reference to his name in the hearing be suppressed.
THE COURT NOTES THAT:
5.The ground for order 4 is that it is necessary in the interests of the administration of justice, having regard to the provisions of s 91X of the Migration Act 1958 (Cth).
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(REVISED FROM TRANSCRIPT)THE COURT:
This is an appeal from a decision of the Federal Circuit Court to refuse Constitutional writ relief to the appellants, who are, respectively, the sponsor and her now 13 year old daughter, in respect of the decision of the Administrative Appeals Tribunal made on 14 August 2018 to affirm the decision of the Minister’s delegate not to grant the daughter a child migrant (class AH) visa.
Background
The daughter lives in Tashkent, Uzbekistan. Her sponsor is her mother and litigation guardian. The sponsor and the daughter have been separated since the sponsor arrived in Australia in March 2008. The mother was granted permanent residence in Australia on 7 March 2014.
On 1 October 2014, the sponsor lodged in Sydney an application to sponsor a child to migrate to Australia in respect of the daughter.
On 28 October 2014, the daughter lodged at the Australian Embassy in Moscow an application for migration to Australia by a child that the sponsor had completed on her behalf based on her sponsorship. A fee of $2,370 for the visa application was paid with a credit card of a Mr M, who at that time lived at the same address as the sponsor in Sydney.
Both the delegate and the Tribunal found that Mr M was the de facto partner of the sponsor. Because she had failed twice in 2017 to comply with a request that she provide the Minister’s Department with a police check for Mr M as her de facto partner, the delegate exercised the power under reg 1.20KB(12) of the Migration Regulations 1994 (Cth) to refuse to approve the sponsor’s sponsorship of the daughter for the visa. Accordingly, the visa application failed.
The sponsor consistently denied to the officers of the Department with whom she dealt, including the delegate, that she was ever in a de facto relationship with Mr M despite sharing the same household with him, receiving financial support from him and being the mother of his two children, one born in 2014 and the second in 2016. However much those bare facts might have justified the delegate in arriving at her decision on 1 June 2017, neither she nor the Tribunal were referred to or considered the criteria specified in s 5CB(2) of the Migration Act 1958 (Cth) in order for it to determine whether a person is in a de facto relationship for the purposes of the Act and Regulations.
Crucially, as the Tribunal stated in its decision record, at the time of the hearing before it, Mr M was serving a sentence of seven years in prison and was then likely to have his visa cancelled under s 501 of the Act. It recorded:
17. … Based on the evidence provided the Tribunal finds they were in a de facto relationship at the time. The Tribunal also accepts the submission by the sponsor's agent that it is possible to be a sperm donor and not be in a de facto relationship, the Tribunal is of the view this is not the case in this matter.
18. The sponsor further stated that [Mr M] is the biological father of her two children born in Australia and that he sees his children whenever he wants and that he has provided baby formula and nappies for the children. The sponsor also said that the applicant provides child support but does not assist financially because he is currently serving a seven year prison term. The sponsor said that she does not know why [Mr M] is in prison; all she knows is that he was found guilty and given a seven year sentence. The Tribunal finds on the evidence provided that if [Mr M] remains in Australia and wishes to visit his children after being released from prison that appropriate penal checks in Australia and from overseas should be provided in relation to this visa application.
…
22. Based on the evidence provided to the Tribunal the sponsor and [Mr M] are consistently recorded as residing at the same address and have common children. The Tribunal is satisfied that the sponsor and [Mr M] are in a de facto relationship. In these circumstances the Tribunal considers it is appropriate that, the sponsor and [Mr M] provide penal certificates to satisfy r.1.20KB (12) of the Regulations.
…
24. The sponsor was requested by the department to provide a police check for the sponsor's de facto partner [Mr M]. The sponsor failed to provide the police check within a reasonable time as requested. Therefore as no approved sponsorship is in force, the applicant does not satisfy r.1.20KB under cl.101.222.
25. Accordingly, the requirements in cl.101.222 are not met.
(emphasis added)
The issue
Those circumstances raised the question whether the Tribunal committed a jurisdictional error in failing to consider, as cl 101.222 of Sch 2 of the Regulations required, whether, at the time of its decision, the sponsor was in a “de facto relationship” with Mr M, within the meaning of the definition in s 5CB(2), so as to enliven the Tribunal’s discretion under reg 1.20KB(12) to refuse to approve the sponsorship, as it did.
The legislative provisions
Relevantly, s 5CB(1) and (2) provided:
5CB De facto partner
De facto partners
(1) For the purposes of this Act, a person is the de facto partner of another person (whether of the same sex or a different sex) if, under subsection (2), the person is in a de facto relationship with the other person.
De facto relationship
(2) For the purposes of subsection (1), a person is in a de facto relationship with another person if they are not in a married relationship (for the purposes of section 5F) with each other but:
(a) they have a mutual commitment to a shared life to the exclusion of all others; and
(b) the relationship between them is genuine and continuing; and
(c) they:
(i) live together; or
(ii) do not live separately and apart on a permanent basis; and
(d) they are not related by family (see subsection (4)).
Next, reg 1.20KB(12) provided:
1.20KB Limitation on approval of sponsorship – child, partner and prospective marriage visas
…
(12) In addition to other reasons set out in this regulation for refusing to approve a sponsorship, the Minister may refuse to approve the sponsorship of all applicants for a visa if:
(a) the Minister has requested a police check for the sponsor or the sponsor’s spouse or de facto partner; and
(b) the sponsor or the sponsor’s spouse or de facto partner does not provide the police check within a reasonable time.
In Sch 2 of the regulations, Subclass 101 specified the criteria that an applicant had to satisfy in order to be granted a visa. Relevantly, the first, in cl 101.212, was that, at the time of the visa application, that the daughter was sponsored by a person who was the holder of a permanent visa, namely, the sponsor (as was the case). The second, in cl 101.222, provided:
101.222
The sponsorship referred to in clause 101.212 has been approved by the Minister and is still in force.
Note: Regulation 1.20KB limits the Minister’s discretion to approve sponsorships.
The trial judge’s reasons
The appellants were represented when the sponsor, who speaks English fluently, argued their case before the trial judge. His Honour held that the Tribunal had power, standing in the Minister’s shoes under s 349(1) of the Act, to decide for itself whether to approve the sponsorship as part of its function of review of the delegate’s decision. As is apparent from [24] and [25] of the Tribunal’s reasons, that is what it did, and his Honour’s finding is accepted by both sides in this appeal as correct.
The trial judge rejected the appellants’ contention below that the Tribunal had committed a jurisdictional error by failing to give proper consideration to the information before it that Mr M, as the sponsor’s “alleged de facto partner”, was serving a seven-year prison sentence, but finding, incongruously, that because he and the sponsor had lived at the same address and had common children at the date of its decision they were then in a de facto relationship.
It is common ground that his Honour was not referred to the provisions of s 5CB and, understandably, did not refer to them in his reasons. He held that it would have been speculative for the Tribunal to consider what would happen on Mr M’s release from prison, including whether he posed, or would pose, any threat to the daughter, being the visa applicant, who is not his child.
This appeal
The Minister consented to the appellants being able to file and rely on an amended notice of appeal prepared by senior and junior counsel who now appear for them. The amended notice of appeal raised substantive arguments that alleged errors by the trial judge, including in relation to some issues that had not been argued before him. Those were that his Honour should have found as follows. First, the Minister could not request, or rely on a failure of a sponsor to provide, a police check of a de facto partner under reg 1.20KB(12) because the request had to be made to the partner. Secondly, the Tribunal erred because it did not consider exercising its discretion to approve the sponsorship under reg 1.20KB despite non-compliance with such a request. Thirdly, the Tribunal made no finding that, and did not consider whether, the sponsor and Mr M were in a de facto relationship, having regard to the criteria in s 5CB(2). Those criteria, relevantly, were whether they had a mutual commitment to a shared life to the exclusion of all others, the relationship between them was genuine and continuing, and they did not live separately and apart on a permanent basis (s 5CB(2)(a)(b) and (c)(ii)).
Consideration
Once the Tribunal identified that Mr M was in prison serving a sentence of seven years, it was likely that the Minister would cancel his visa under s 501 and he would be liable to removal from Australia. Accordingly, the Tribunal had to explore the nature of the then current relationship between him and the sponsor. That required the Tribunal to engage with the criteria for a de facto relationship specified in s 5CB(2).
As is apparent from the material parts of the Tribunal’s decision set out above, the Tribunal proceeded by finding that the sponsor and Mr M were in a continuing de facto relationship based (as it said in [22]), on the evidence that the two had been “consistently recorded as residing at the same address and have common children”. The Tribunal did not engage with the circumstance that, to its knowledge, Mr M did not continue to reside at the address of the sponsor since he was currently undergoing a substantial sentence of imprisonment, which could last seven years. That acutely raised the questions of whether, at the time of the Tribunal’s decision, the relationship was a de facto relationship in which both parties had a mutual commitment to a shared life to the exclusion of all others, whether that relationship, was genuine and continuing and whether they did not live separately and apart on a permanent basis.
Residence in prison serving a sentence, is a factor to which a decision-maker should have regard in determining whether parties who had been in a married or de facto relationship are not, at the time of the decision, still living separately and apart on a permanent basis. Depending on the factual situation of a relationship between parties, a decision-maker could regard a prison sentence as being merely a temporary interruption for its duration in what is a mutual commitment to a shared life to the exclusion of all others in a genuine and continuing relationship or as having precipitated or evidenced a permanent separation.
Under s 368(1), which is in Pt 5 of the Act, the Tribunal had to make a written statement that set out its decision on the review, the reasons for the decision, together with its findings on any material questions of fact and references to the evidence or other material on which those findings were based. In Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 346 [68]–[69] McHugh, Gummow and Hayne JJ identified the purposes and operation of s 430, the analogue in Pt 7 of s 368. They said:
A requirement to set out findings and reasons focuses upon the subjective thought processes of the decision-maker. All that s 430(1)(c) obliges the Tribunal to do is set out its findings on those questions of fact which it considered to be material to the decision which it made and to the reasons it had for reaching that decision.
It is not necessary to read s 430 as implying an obligation to make findings in order for it to have sensible work to do. Understanding s 430 as obliging the Tribunal to set out what were its findings on the questions of fact it considered material gives the section important work to do in connection with judicial review of decisions of the Tribunal. It ensures that a person who is dissatisfied with the result at which the Tribunal has arrived can identify with certainty what reasons the Tribunal had for reaching its conclusion and what facts it considered material to that conclusion. Similarly, a court which is asked to review the decision is able to identify the Tribunal's reasons and the findings it made in reaching that conclusion. The provision entitles a court to infer that any matter not mentioned in the s 430 statement was not considered by the Tribunal to be material (Repatriation Commission v O’Brien (1985) 155 CLR 422 at 446, per Brennan J; Sullivan v Department of Transport (1978) 20 ALR 323 at 348–349, per Deane J; at 353, per Fisher J; cf Fleming v The Queen (1998) 197 CLR 250 at 262–263 [28]–[29]). This may reveal some basis for judicial review by the Federal Court…. For example, it may reveal that the Tribunal made some error of law... It may reveal jurisdictional error (Craig v South Australia (1995) 184 CLR 163 at 179). The Tribunal's identification of what it considered to be the material questions of fact may demonstrate that it took into account some irrelevant consideration or did not take into account some relevant consideration (Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24).
(bold emphasis added; italic emphasis in original)
Here, the Tribunal’s written statement of its reasons revealed that it did not have regard to the statutory definition of a de facto partner in s 5CB(2) at all. It made no mention of the section and it did not consider or make any findings in terms on any of the issues which the section prescribed as essential criteria. Rather, it based its decision on the fact that, in the past, the sponsor and Mr M had been living together and that he had been providing financial support up to the time of commencing his imprisonment. The Tribunal’s reasons at [18] suggest that it regarded the new fact of the prison sentence as either irrelevant or not worthy of any consideration in connection with an evaluation of the then current status of the relationship between the sponsor and Mr M.
Indeed, in the last sentence of [18] the Tribunal speculated that, if Mr M were to remain in Australia, he might wish to visit his children after his release from prison and that at that time appropriate police checks ought to be provided in relation to the visa application. That statement begged the question as to why, if he were in a continuing de facto relationship with the sponsor, Mr M would want to “visit his children”. Had it been considering s 5CB(2)(c)(ii), the Tribunal would have to have found that it was likely that he, the sponsor and their two children would continue to live together as a family. That issue was not a mere manner of speculation as to what the impact of the prison sentence was on the relationship. It was a relevant fact that the Tribunal had to take into account, evaluate and determine in answering the statutory questions posed in s 5CB(2), which it never identified, far less addressed. That was an error of law and a jurisdictional error, because the existence of a de facto relationship at the time of its decision was material to the Tribunal’s consideration of the requirements in cl 101.222.
If the sponsor was not, as a matter of fact, at the time of the Tribunal’s decision, in a de facto relationship with Mr M, then its reasons for deciding to refuse to approve the sponsorship were erroneous. It did not consider whether the non-existence of a de facto relationship at that time could have affected either the availability or the exercise of the discretion under reg 1.20KB(12). The Tribunal never considered what the relationship was at the time of its decision. Accordingly, it did not consider whether the sponsor had any current obligation to provide a police check of Mr M, if he were not her partner, and how that issue affected the existence or exercise of any discretion under reg 1.20KB(12).
The parties agreed that if the Tribunal committed a jurisdictional error (as we have found it did) by not addressing the issues under s 5CB(2), it is not necessary to determine the other grounds of appeal.
Conclusion
The appeal should be allowed with costs and the orders of the Federal Circuit Court should be set aside and in their place there should be orders that the decision of the Tribunal be set aside, and the matter remitted to it for consideration in accordance with law.
I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Rares, Katzmann and Charlesworth. Associate:
Dated: 25 May 2020
0
8
2