Migdadi v Minister for Immigration
[2016] FCCA 2695
•19 October 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MIGDADI v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 2695 |
| Catchwords: MIGRATION – Application under rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) to dismiss an application for judicial review of a decision of the Migration Review Tribunal – whether applicant has raised an arguable case for relief – no arguable case for relief raised – application dismissed. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), r.44.12(1)(a) Migration Act 1958 (Cth), ss.5F(1), 5F(2), 5F(3), 359AA, 359AA(1)(b), 359A, 359A(1), 359A(3), 360(1), 424A, 424A(1) |
| Cases cited: Guven v Minister for Immigration & Anor [2006] FMCA 311 VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 |
| Applicant: | HAMZA ISMAIL MOHAMMAD MIGDADI |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 1108 of 2015 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 21 September 2016 |
| Delivered at: | Sydney |
| Delivered on: | 19 October 2016 |
REPRESENTATION
| Solicitors for the Applicant: | Mr R Turner of Turner Coulson Immigration Lawyers |
| Solicitor for the First Respondent: | Ms S Sangha of Mills Oakley Lawyers |
ORDERS
Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) the application is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1108 of 2015
| HAMZA ISMAIL MOHAMMAD MIGDADI |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The first respondent (Minister) applies for an order under r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (FCC Rules) that the amended application for judicial review filed in these proceedings be dismissed.
Background
The applicant is a national of Jordan. On 28 November 2011 he applied for a Partner (Temporary) (Class UK) (Subclass 820) visa (Partner visa).[1] The applicant did so on the basis that he was married to the sponsor.
[1] CB32ff
To have been entitled to the grant of a Partner visa, the applicant, at the time of application, had to satisfy, among other things, cl.820.211(2)(a)(i) of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations). That provided that an applicant for a Partner visa must be “the spouse or de facto partner of a person who” is “an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen”.
Sub section 5F(1) of the Migration Act 1958 (Cth) (Act) provides that a person is the “spouse” of another person if, under s.5F(2), the persons are in a married relationship. Under s.5F(2), 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:
i)live together; or
ii)do not live separately and apart on a permanent basis.
Subsection 5F(3) 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. Sub regulation 1.15A (2) provides that, when considering an application for, among other things, Partner (Temporary) (Class UK) visas, the Minister must consider all of 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:
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.
In February 2013 the applicant’s migration agent advised the Department of Immigration and Border Protection (Department) that the relationship between the applicant and the sponsor had broken down, and that the applicant has suffered family violence by the sponsor.
In February 2014 a delegate of the Minister refused to grant a Partner visa to the applicant because the delegate was not satisfied the applicant was in a genuine and continuing spousal relationship with his sponsor at the time of application. The applicant applied to the second respondent (Tribunal) for review of the delegate’s decision.
Applicant’s claims and evidence before the Tribunal
At the hearing before the Tribunal, the applicant said he met the sponsor in January 2011 at the convenience store where the applicant worked. Three days later, after talking for an hour at the store, the applicant asked for, and was given, the sponsor’s telephone number. Three of four days later the applicant telephoned the sponsor, and asked her out. He and the sponsor then spent a few hours sight-seeing in the city. The relationship developed, and the sponsor became attached to the applicant.[2] The applicant and sponsor spoke to each other every day, and eventually loved one another.[3]
[2] CB233, [17]
[3] CB233, [18]
The applicant said that in June 2011 the sponsor telephoned the applicant. She was distressed after she had an argument with her parents. They met. The applicant suggested the sponsor could not stay with her family any more, and the applicant told the sponsor he loved her, and that he wanted to marry her.[4] The sponsor moved in with the applicant on 18 June 2011, and they married on 21 July 2011. [5]
[4] CB233, [18]
[5] CB233, [20]
The applicant’s sister-in-law’s brother married the applicant and sponsor.[6] The wedding was attended by the applicant’s brother, two of the applicant’s friends, and four of the sponsor’s friends.[7] The applicant and sponsor dressed informally for the wedding.[8] The applicant and sponsor went out together on the night of the wedding, and slept at the applicant’s brother’s home.
[6] CB233, [20]
[7] CB233, [21]
[8] CB233, [22]
For the first four days of their marriage, the applicant and sponsor stayed with one of the applicant’s friends.[9] They then moved in with the applicant’s brother.[10]
[9] CB233, [20]
[10] CB233, [20]
The applicant and the sponsor opened a joint bank account. The applicant’s wages, however, were paid to him in cash, and were never deposited into the joint bank account. The sponsor was receiving benefits from Centrelink, but these were being paid into the sponsor’s bank account. The applicant said he deposited cash into the joint bank account.[11] The applicant had also provided a letter dated 21 July 2011 to his employer’s payroll officer requesting that his salary be paid into the joint bank account.[12] His employer, however, refused to pay the applicant award rates, but instead paid him $10 cash per hour.[13]
[11] CB234, [23].
[12] CB7
[13] CB234, [24]
The applicant met the sponsor’s parents only once. The applicant could name the sponsor’s father and siblings, but he could not remember the sponsor’s mother’s name. The sponsor’s parents did not like the applicant, and he was not welcome in their home. The applicant did not know what the applicant’s parents did.[14]
[14] CB234, [30]
In August 2011 the applicant and the sponsor went to Brisbane for a holiday, and visited the Gold Coast.[15] In May 2012 the sponsor went to stay with one of her friends for three or four days. By that stage the relationship between the applicant and sponsor was not good.[16]
[15] CB234, [27]
[16] CB234, [27]
In response to the Tribunal’s questioning, the applicant said the sponsor moved out in September 2012. By that time, things were seriously bad between the applicant and the sponsor.[17] In response to the Tribunal’s request that the applicant clarify when the sponsor left the applicant’s brother’s home, the applicant said September 2012 but that the problems between the applicant and the sponsor began in March 2012; the sponsor had a bad temper even before they were married; the sponsor left in June 2012, but the applicant did not know where she went; the applicant kept in contact with the sponsor for a few months, but she rejected the applicant completely.[18]
[17] CB234, [25]
[18] CB234, [31]
The applicant presented three witnesses. One was the applicant’s brother (the brother). He said the applicant met the sponsor in 2011 at the applicant’s work; in June 2011 the applicant and the sponsor moved in with the brother and his family; the applicant and the sponsor left the brother’s home together in May 2012; the applicant stayed with friends for about a week, but returned to the brother’s home; the applicant’s and sponsor’s relationship was okay when they first moved in, but she was lazy and did not help the brother’s wife; in January and February 2012 the sponsor began to come home drunk; and, in the end, the brother had to tell the applicant and the sponsor to leave.[19]
[19] CB235, [36]
The brother also said his wife did not attend the applicant’s and sponsor’s wedding because she was too busy, and that, on the night of the wedding, the applicant and sponsor stayed at the brother’s home, and the brother and his wife slept at home with their children.[20] The brother also said that the applicant’s relationship with the sponsor was very good and happy, and that they loved one another. The sponsor, however, was very moody and she began to yell at him. The brother also said the marriage was genuine, his children loved the sponsor and also that the applicant and sponsor went to Queensland on a holiday.[21]
[20] CB235, [37]
[21] CB236, [38]
A friend (Mr A) gave evidence to the Tribunal. He said he had grown up in the same area of Jordan as the applicant; he had met the sponsor a number of times and described her as a nice girl; that the applicant and sponsor had a “love relationship”; he did not attend the wedding because he arrived in Australia at the end of June 2011; on one occasion the friend and the applicant had taken the sponsor to a medical centre because of her psychological condition; the sponsor’s behaviour became erratic, and he believed she was using drugs; the sponsor began yelling and the applicant did not know what was going on.[22]
[22] CB236, [39]
The third witness was Mr O. He said the applicant and the sponsor visited Mr O and his wife in Brisbane at the end of 2011. The applicant and the sponsor stayed with Mr O and his wife in Brisbane for four days. Mr O and his wife went to the Gold Coast and Sunshine Coast with the applicant and the sponsor. At the time he met them, the applicant and the sponsor had a good relationship and were very happy together.[23]
[23] CB236, [40]
Tribunal’s reasons
The Tribunal found that the applicant’s oral evidence was “vague, internally inconsistent and unconvincing and the Tribunal did not consider him to be a credible witness”.[24] The Tribunal for similar reasons did not consider the evidence of the brother or Mr A to be reliable.[25]
[24] CB237, [43]
[25] CB237, [43]
The Tribunal referred to one inconsistency in the evidence, namely, the applicant’s evidence that, on the night of the wedding, the applicant and the sponsor stayed at the brother’s house and the brother and his family vacated the apartment to give the applicant and sponsor some privacy, yet the brother said he and his family stayed at home on the night of the wedding.[26] The Tribunal noted that “[t]his matter was raised [with] the applicant in accordance with s.359AA” of the Act, in response to which the applicant said he remembered the events more clearly than his brother because it was his marriage. The Tribunal did not consider the applicant’s response adequately addressed that discrepancy.[27] The Tribunal also referred to the discrepancy in the applicant’s evidence about whether the sponsor and applicant left the applicant’s brother’s home together in June 2012 or whether the sponsor had left on her own.[28]
[26] CB237, [43]
[27] CB237, [43]
[28] CB237, [43]
The Tribunal found Mr O gave his evidence in an open manner, and was generally consistent with the applicant’s evidence. The Tribunal noted, however, that although Mr O said the applicant and sponsor visited Brisbane in late 2011, the applicant’s evidence was that he and the sponsor visited Brisbane in August 2011. The Tribunal noted, however, that on 5 August 2011 $100 cash was deposited into the joint bank account at Surfers Paradise, but on the same day the same amount was withdrawn from an ATM at Lalor Park in Sydney. There was no other documentary evidence, including photographs, of the trip in August to Brisbane or the Gold Coast or Surfers Paradise.[29] The Tribunal, therefore, was not prepared to accept the parties went on a holiday together.[30]
[29] CB237, [44]
[30] CB237, [44]
The Tribunal then noted that the question it had to consider was whether the applicant and the sponsor were in a spousal relationship within the meaning of the Regulations at the time of application for the purposes of cl.820.211(2) of Schedule 2 of the Regulations.[31] That is so even though the applicant claimed he fell within the exemption provided for by cl.820.211(3) of Schedule 2 to the Regulations, which applies to applicants who claim to have been the subject of relevant family violence. Relying on the decision of this Court in Guven v Minister for Immigration & Anor,[32] the Tribunal decided that before it could assess whether the applicant has suffered relevant family violence, it must assess whether at any point of time the applicant and his sponsor were in a spousal relationship within the meaning given to it in the Regulations, and that it must also consider whether the parties were in a spousal relationship at the time of application for the purposes of cl.820.211(2).[33]
[31] CB238, [49]
[32] [2006] FMCA 311
[33] CB238, [49]
The Tribunal accepted the applicant and the sponsor were validly married.[34] The Tribunal did not accept, however, that the financial aspects of the relationship were consistent with a genuine and continuing spousal relationship at the time of application.[35] The Tribunal:
a)noted the applicant and spouse did not have any joint ownership of assets or joint liabilities or legal obligations;[36]
b)found the joint bank account was opened for the purpose of the application for the Partner visa:[37] it was unclear who was using the joint bank account, and the sponsor’s Centrelink payments were not being made into the joint account;[38]
c)found that the applicant’s letter to his employer’s payroll officer was contrived for the purposes of his application for a Partner visa, given that it was written on the day of the applicant’s marriage, it is not signed, and is not addressed to any particular employer.[39]
[34] CB239, [51]
[35] CB239, [55]
[36] CB239, [52]
[37] CB239, [52]
[38] CB239, [52]
[39] CB239, [53]
The Tribunal was not satisfied the applicant lived with the sponsor at the brother’s home, or at any other property:[40]
a)The applicant did not consider the applicant’s brother or Mr A to be reliable witnesses.
i)As for Mr A, the Tribunal noted he said he did not attend the applicant’s wedding because he arrived in Australia at the end of June 2011, yet the parties were married in July 2011. And Mr A could give no insight when the sponsor moved out of the home, or when the applicant’s relationship with the sponsor ended.[41]
ii)As for the brother, the Tribunal did not find his evidence persuasive. The Tribunal did not accept the brother and his wife shared a bedroom with their two children for ten months while the applicant and sponsor were living in the children’s bedroom. It also did not find persuasive the brother’s evidence that the children formed a close bond with the sponsor, given the brother’s statement the sponsor was lazy, began returning home drunk, and had to be asked to leave.[42]
b)The applicant provided some photographs, but none of them showed the brother and his family, and there were no photographs of the applicant and the sponsor at the brother’s home.[43]
c)The brother and his wife provided statutory declarations to the Department which stated the applicant and the sponsor lived at their home. These documents, however, appear to be in the same handwriting, they provided very little detail, and they were prepared just four days after the applicant and the sponsor were married.[44]
d)On 30 October 2011 the sponsor consulted a psychologist for the purposes of obtaining a report in support of an application that condition 8503 should be waived. The report recorded the sponsor described her marriage with the applicant to be happy and loving.[45] In a statutory declaration made by another psychologist in February 2013, the applicant was recorded as having stated that he married the sponsor on 21 July 2011 but “a few months later in September he was overwhelmed by” the sponsor’s complete change of personality and attitude towards him “unlike her previous loving, caring demeanour when they were engaged”.[46]
[40] CB240, [62]
[41] CB240, [57]
[42] CB240, [57]
[43] CB240, [59]
[44] CB240, [60]
[45] CB240, [61]
[46] CB240, [61]. The report is at CB117. The same psychologist prepared a substantially similar report in December 2012 which was sent to the Department.
Although the Tribunal accepted the applicant and the sponsor had held themselves out to medical and health professionals as being married, the Tribunal found there was little independent evidence that the applicant and the sponsor held themselves out to others in the broader community or to the sponsor’s friends or family that they were married.[47] The Tribunal placed significant weight on the absence of any of the sponsor’s family or friends at the applicant’s and the sponsor’s wedding.[48] The Tribunal said it took into account the statutory declarations made by the brother and his wife, but the Tribunal found those documents did not overcome the other concerns the Tribunal has about the evidence in the case.[49]
[47] CB241, [68]
[48] CB241, [65]
[49] CB241, [66]
Finally, the Tribunal found the nature of the commitment the applicant and the sponsor showed to each other at the time of application was not indicative of a genuine and continuing spousal relationship.[50]
a)The Tribunal did not accept the applicant’s explanation for the applicant and the sponsor marrying four weeks after the sponsor argued with her parents. The Tribunal did not accept the applicant’s explanation that his religion did not permit him to live in a de facto relationship, given that the applicant said he lived with the sponsor for four weeks before the wedding.[51]
b)The applicant said he was not welcome in the sponsor’s family, he did not known the name of the sponsor’s mother, and had very limited knowledge of the sponsor’s family.[52]
c)The applicant’s evidence about when the applicant left their home was internally inconsistent, first saying it was in September 2012, but later saying it was in June 2012.[53]
d)Reports provided by the applicant to the Department in support of the applicant’s claims he suffered family violence contained numerous inconsistencies with what the applicant said at the hearing. The Tribunal referred to one example, where the doctor reported the applicant and sponsor met three months before they were married, whereas the applicant told the Tribunal he met the sponsor six months before they were married.[54]
[50] CB243, [77]
[51] CB242, [70]
[52] CB242, [71]
[53] CB242, [72]
[54] CB242, [74]
Grounds of application
The amended application contains the following ground:
The Tribunal failed to carry out its statutory duty
Particulars
a.(i) The Tribunal found that
“Mr Migdadi’s evidence regarding the arrangements on the night of the parties’ wedding and the circumstances in which the sponsor left his home was inconsistent with other evidence before the Tribunal.”
(ii) The Tribunal failed to comply with the Migration Act s.359A in relation to this “other evidence”
b.The Tribunal failed to give proper consideration to the Applicant’s evidence.
(i)The Tribunal found that the parties’ joint bank account and a letter from his employer were contrived for the purpose of the application.
Just because the documents were ‘contrived for the purpose of the application’ does not mean that they are not evidence of the relationship.
(ii)The Tribunal failed to consider the psychologist’s report as evidence of the parties’ relationship because it was inconsistent with the evidence of another psychologist.
Both reports are evidence of the relationship even though they may differ in focus.
(iii)The Tribunal dismissed the letter from the parties’ doctor that they presented together at his surgery because
“it does not provide any insight into the parties relationship.”
(iv)The Tribunal dismissed the supporting Statutory Declarations because “both statements were written in the same handwriting and provided very little details.”
The Statutory Declarations are at CB26 & 29. They are legal statements that answer the questions asked of them and are signed independently by each Declarant.
They constitute legal evidence of the matters to which they declare.
Asserted non-compliance with s.359A of the Act
Subsection 359A(1) of the Act provides that, where there is “any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review”, the Tribunal must:
a)give to the applicant “clear particulars” of the “information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review”;
b)“ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review”,
c)“invite the applicant to comment on or respond to it”; and
d)where the applicant is not in immigration detention, give “the information and invitation” by one of the methods specified in s.379A of the Act, which means that the information and invitation must be recorded in a document that the Tribunal must give to the applicant in one of the methods specified in s.379A.
The duty to do the things specified in s.359A(1) of the Act does not arise in the circumstances provided for in s.359A(3) of the Act, namely, if, when the applicant is appearing before the Tribunal because of an invitation under s.360(1) of the Act, the Tribunal orally gives to the applicant “clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision under review” pursuant to s.359AA of the Act. In those circumstances, however, the Tribunal will be relieved of its duty to do the things specified in s.359A(1) of the Act only if the Tribunal does what is required by s.359AA(1)(b) of the Act; that is to say, only if the Tribunal:
a)ensures, “as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review” and
b)orally invites “the applicant to comment on or respond to the information” and
c)advises “the applicant that he or she may seek additional time to comment on or respond to the information”; and
d)if “the applicant seeks additional time to comment on or respond to the information”, the Tribunal adjourns “the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information”.
The applicant submits the Tribunal did not comply with s.359A of the Act because the Tribunal gave incorrect particulars of what it considered to be the inconsistency between the applicant’s evidence and the brother’s inconsistent evidence (brother’s inconsistent evidence). To understand the applicant’s submission, it is necessary to refer to three passages from the transcript of the hearing before the Tribunal. The first is where the Tribunal purports to give to the applicant particulars of the brother’s inconsistent evidence:[55]
[55] Affidavit of M E Corkhill, annexure “A”, page 48
Member:There is one issue of inconsistency that I would like to put to you formally and that is in relation to your brother’s evidence about what happened on the night that you were married.
So I am just going to do that now and I just ask that you wait until I finish.
So your brother said to me that on the night that you were married, he admits that he was confused at the beginning, but basically on the night that you were married he was at home with his family, you and your wife.
And you told me that he left the family home with his wife and children to leave you alone on your wedding night.
Now just wait.
So that information is relevant because it has been inconsistent – evidence about what happened on the night of your wedding.
This would lead the Tribunal to conclude that either your evidence or your brother’s evidence about that event was not truthful and is not accepted as evidence.
This might lead the Tribunal to doubt that you and your wife were in a genuine and continuing spousal relationship at the time of the application.
This in turn would be the reason – or part of the reason for [unintelligible] decision under review.
I am also required to formally give you additional time to respond to that inconsistency. You can respond now if you like, but you can also request additional time to put something in writing.
Applicant:… my brother, but I am the one married. I am – of course I am the main person here. It is my own life. And I know better.
Of course, like the other witnesses, for example, he can say things but of course he remembers things – I remember things better than he would.
… the house of his in-laws. My brother’s-in-laws. It is like 20 or 30 metres away from his house so every now and then, you know, they pay them a visit. I just check about the [unintelligible]
Yes, yes, because you know my – yes the house number is 74 my brother’s and then around 64. Yeah 64. So everything that they you know, with each other, … [unintelligible].
So when we woke up in the morning, me and my wife, you know my brother was at home.
The second passage from the transcript of the hearing before the Tribunal is that which records the applicant’s evidence about where he spent the night of the wedding:[56]
Member:Where did you stay the night that you were married?
Applicant:That day you mean?
Member:That night when you were married?
Applicant:After this, after the contract of marriage, my brother gave us a lift – we went back and we had lunch – and then I took his car and we went out that night. And then he told me you know that they went out that they weren’t at the house, that they wanted to – I am not sure – spend the night overnight or just spend that night – [would you like me to check that].
Member:Mm.
Applicant:Yes, they … overnight, yes so they not home. And then like you know it was rough circumstances because her relationship with her parents – financially the circumstances weren’t good. I thought I was [unintelligible].
[56] Affidavit of M E Corkhill, annexure “A”, page 16
The second passage records the evidence the brother gave about where he went on the night of the wedding:[57]
[57] Affidavit of M E Corkhill, annexure “A”, page 39
Member:So can you remember where they stayed the night of the wedding? Did they stay at a hotel or did they stay at your place?
Brother:At my place.
Member:And where were you?
Brother:Sorry?
Member:Were you there?
Brother:Yes.
Member:So you didn’t go away that night?
Brother:No.
Mr Turner, who appeared for the applicant, submitted that this evidence discloses no inconsistency. Mr Turner submits that the effect of the applicant’s evidence is that when he went to bed, the applicant’s brother was not there, but when he awoke in the morning he was there. Mr Turner submits that the expression “clear particulars” in s.359A of the Act means correct particulars; and the Tribunal did not give correct particulars because there was no inconsistency or, if there were an inconsistency, the Tribunal did not describe it accurately.
From these submissions, it appears the “information” of which Mr Turner submits the Tribunal failed to give particulars to the applicant was the inconsistency the Tribunal perceived between the applicant’s evidence and the brother’s evidence. If that is so, this part of the applicant’s claims discloses no arguable case that the Tribunal failed to comply with s.359A of the Act. The meaning of the word “information”, as used in s.424A of the Act (which is materially indistinguishable from s.359A of the Act), has been considered in a number of cases. It has been held that the “information” to which s.424A(1) of the Act applies “does not encompass the tribunal’s subjective appraisals, thought processes or determinations”; nor “does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps”.[58] The meaning of “information” is “related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence”.[59]
[58] VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at 477 (Finn and Stone JJ) quoted with approval by the High Court in SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at 616 ([18]).
[59] SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at 616 ([18])
It is beyond argument that the inconsistency the Tribunal perceived between the applicant’s and the brother’s evidence about where the brother spent the night of the wedding constituted the Tribunal’s subjective appraisal of the applicant’s and the brother’s evidence on this point. To the extent there was information to which s.359A(1) of the Act applied, it was the evidence the brother gave about where he stayed the night of the wedding. It is beyond argument the Tribunal gave the applicant clear particulars of that evidence, and otherwise complied with s.359AA of the Act in relation to that evidence.
Although not relevant to the issue I have to decide, there are two points I should note. The first is that Mr Turner submitted the applicant’s response to the Tribunal’s giving the applicant particulars of the brother’s evidence was not inconsistent with the brother’s evidence. Whether or not that is so is not the question that needs to be addressed when considering whether the Tribunal complied with s.359A of the Act. Nor is it the question that concerned the Tribunal. What was relevant to s.359A, and what without any doubt concerned the Tribunal, was what it perceived to be the inconsistent evidence the applicant and the brother had already given about where the applicant’s brother stayed the night of the wedding. The second point is that it is beyond argument it was reasonably open to the Tribunal to find that evidence was inconsistent. Although the transcript of the applicant’s evidence about the wedding night contains portions which are said to be unintelligible, the applicant is recorded twice using the word “overnight” in relation to the brother’s staying away, which without a doubt made it reasonably open to the Tribunal to find the applicant gave evidence to the effect that the brother did not stay at the brother’s house on the night of the wedding but stayed elsewhere overnight. That remains the case, even though the applicant gave different evidence in response to the Tribunal’s giving the applicant particulars of the brother’s inconsistent evidence.
There is one final matter to note. Mr Turner submitted that the inconsistency on which the Tribunal relied was between the evidence of two persons, and this served to distinguish this case from SZBYR v Minister for Immigration and Citizenship,[60] That is not arguable.
[60] (2007) 235 ALR 609
This part of the applicant’s application, therefore, discloses no arguable case for the relief it seeks.
Asserted failure to properly consider claim
The applicant claims the Tribunal failed to properly consider the applicant’s claims. That claim is made in relation to four of the Tribunal’s findings.
The first is the Tribunal’s finding that the applicant’s and sponsor’s joint bank account and a letter to the applicant’s employer were contrived for the purposes of the application. The applicant submits that because the fact these documents were contrived did not necessarily deny them the status of evidence of the relationship.
This raises no arguable case for relief. It is beyond argument that the Tribunal did consider these documents as evidence, and considered their weight. For the reasons it gave, the Tribunal gave the documents little or no weight. It is beyond argument it was reasonably open to the Tribunal to conclude that it should give the documents little or no weight.
Mr Turner submitted that opening a joint account and writing a letter to an employer similar to that which the applicant wrote is conduct which it would be expected a person advised – as the applicant was – would do. That may or may not be so. There is no suggestion, however, that the applicant gave evidence to the Tribunal to the effect that he and the sponsor opened the joint account and wrote the letter to his employer based on advice he received. And in any event, even if the applicant opened an account on the basis of advice, it is not arguable that his having done so could have reasonably had any bearing on the matters on which the Tribunal relied for deciding to give the joint account and letter little or no weight.
The second finding to which this ground is directed is the Tribunal’s giving no weight to two psychologists reports.[61] The applicant claims the Tribunal failed to consider them as evidence of a genuine spousal relationship, only because they were inconsistent. This is not arguable. It is beyond argument the Tribunal considered the reports, but decided not to give any weight to them as evidence of a genuine spousal relationship. It is beyond argument it was reasonably open to the Tribunal to give no weight to the reports for the reasons it gave.
[61] CB240, [61]
The third finding to which this claim is directed is the Tribunal’s concluding that a letter from a general practitioner stating the applicant and the sponsor presented at his surgery provided no insight into the relationship between the applicant and the sponsor.[62] Mr Turner submitted the Tribunal acted irrationally in concluding the letter gave no insight into the nature of the parties’ relationship.
[62] CB241, [67]
This part of the applicant’s claims is not arguable. The Tribunal considered the letter from the general practitioner; and it is beyond argument it was reasonably open to the Tribunal to conclude that the report of a male and female attending a doctor’s practice gives no insight into the nature of that relationship.
The final finding to which this part of the applicant’s claim is directed is the Tribunal’s concluding that the statutory declarations made by the brother and his wife did not overcome the other evidence before the Tribunal that indicated to the Tribunal that the applicant and the sponsor were not in a genuine spousal relationship. The applicant appears to submit that the Tribunal was bound to give the statutory declarations some weight. That is not arguable. Nor is it arguable that the Tribunal did not consider the statutory declarations. It is beyond argument it was open to the Tribunal to conclude, for the reasons it gave, that the statutory declarations did not overcome the other evidence before the Tribunal that the applicant and the sponsor were not in a genuine spousal relationship.
For these reasons, this part of the application discloses no arguable case for the relief it seeks.
Disposition
The amended application for review raises no arguable case for the relief it seeks. I propose, therefore, to make an order dismissing the application pursuant to r.44.12(1)(a) of the FCC Rules.
I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Date: 19 October 2016
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Statutory Construction
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