MOTOTABUA v Minister for Immigration and Anor
[2020] FCCA 2071
•29 July 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MOTOTABUA v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 2071 |
| Catchwords: MIGRATION – Application for Partner visa – Tribunal not satisfied that the applicant and the sponsor were in a genuine and continuing de facto relationship – no jurisdictional error established – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5CB, 5CB(2). Migration Regulations 1994 (Cth), rr.1.09A, 1.09A(3), Sch.3, cl.3001. |
| Cases cited: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611. SZUXN v Minister for Immigration and Border Protection (2016) 69 AAR 210. |
| Applicant: | ILIKI MOTOTABUA |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | BRG 52 of 2020 |
| Judgment of: | Judge Egan |
| Hearing date: | 27 July 2020 |
| Date of Last Submission: | 27 July 2020 |
| Delivered at: | Brisbane |
| Delivered on: | 29 July 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Aleksov |
| Solicitors for the Applicant: | MRH Lawyers |
| Counsel for the First Respondent: | Mr Byrnes |
| Solicitors for the First Respondent: | MinterEllison |
| Second Respondent: | Submitting appearance save as to costs |
ORDERS
The application for review filed on 28 January 2020 be dismissed.
The Applicant pay the First Respondent’s costs of and incidental to the application for review fixed in the amount of $5,600.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 52 of 2020
| ILIKI MOTOTABUA |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of Fiji and is 61 years of age. He first arrived in Australia on 13 December 2009 on a tourist visa. Having departed Australia on 12 March 2010, the applicant returned to Australia on 6 May 2011 on a second tourist visa. That tourist visa expired on 6 August 2011. From 6 August 2011 until 28 August 2016, when the applicant was granted a bridging visa, the applicant was a non-citizen unlawfully resident in Australia.
The applicant applied for a Partner (Temporary) (Class UK) visa on 17 November 2016 on the basis of his claimed relationship with his sponsor. The applicant remains married to a different woman who resides in Fiji, there being two adult children of that relationship and one grandchild who also lives in Fiji.
The sponsor is a 47 year old woman who is a disability pensioner. The applicant and the sponsor claim that they first met and entered into a de facto relationship in or about July 2011. The sponsor self-identifies as being an indigenous person who is illiterate; has multiple medical issues including bipolar effective disorder; a history of childhood sexual abuse; type 2 diabetes; and ongoing brain injury issues following what was described as a significant suicide attempt. [1]
[1] [5] of Tribunal reasons.
On 15 December 2019, the Administrative Appeals Tribunal (‘the Tribunal’) affirmed a decision of a delegate to the Minister to refuse to grant to the applicant a Partner visa.
On 28 January 2020, the applicant filed an Originating Application for Review of the decision of the Tribunal. The two grounds of review relied upon by the applicant at the hearing before this Court were as follows:
“Grounds of application
1. The Tribunal failed to give a justifiable reason for its conclusion at Reasons [34], from which it should be inferred that the Tribunal did not have any lawful reason for that conclusion, and so, constructively failed to exercise jurisdiction.
2. …
3. The Tribunal failed to grapple with the impact of the evidence given by the sponsor’s family that the applicant is recognised by them as the sponsor’s de facto partner.
4. …”
Mr Aleksov, Counsel for the applicant, confirmed that Ground 1 of the application for review concerned the reasons of the Tribunal as set out in [34] thereof. Mr Aleksov also confirmed that Ground 3 of the application for review concerned [40] – [42] of the reasons of the Tribunal.
It was common ground that in order to qualify for the grant of the visa, the applicant had to demonstrate that he was in a genuine de facto relationship with the sponsor as provided for in s. 5CB of the Migration Act 1958 (Cth) (‘the Act’). Section 5CB relevantly provided as follows:
“Section 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)).
(3) 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 may make different provision in relation to the determination for different purposes whether one or more of those conditions exist.
Definition
(4) For the purposes of paragraph (2)(d), 2 persons are related by family if:
(a) one is the child (including an adopted child) of the other; or
(b) one is another descendant of the other (even if the relationship between them is traced through an adoptive parent); or
(c) they have a parent in common (who may be an adoptive parent of either or both of them).
For this purpose, disregard whether an adoption is declared void or has ceased to have effect.”
For the purposes of s. 5CB of the Act, the Minister was required to consider all of the circumstances of the alleged relationship between the applicant and the sponsor, including those matters as set out in r. 1.09A of the Migration Regulations 1994 (Cth) (‘the Regulations’). The matters required to be considered by the Minister pursuant to r. 1.09A(3) were as follows:
“Regulation 1.09A – De facto partner and de facto relationship
…
(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 in a de facto relationship with 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.”
Grounds for Review
As to Ground 1 of the Originating Application for Review, [34] of the reasons of the Tribunal provided as follows:
“[34] Statutory declarations and letters ‘to whom it may concern’ provided to the Tribunal by members of the sponsor’s family attest to the applicant’s kind and considerate nature and the practical help he provides to the sponsor. The Tribunal accepts that the parties have lived at times in the same household, and that when they did, they shared the housework and the care and support of children (the sponsor’s niece’s two young children), and the applicant has supported the sponsor in her day-to-day living. The Tribunal does not find, however, that the parties have established and maintained a joint household as a de facto couple. The Tribunal notes that the sponsor stated at hearing that the applicant pays her AUD 100 a week in rent and AUD 150 to AUD 200 a week for food and other expenses. The Tribunal finds this more consistent with a landlord/boarder arrangement than a genuine de facto relationship.”
It was submitted on behalf of the applicant, that as the Tribunal had at [34] of its reasons accepted that:
a)the applicant and the sponsor had shared housework;
b)the applicant and the sponsor shared the care and support of children;
c)the applicant had supported the sponsor in her day to day living; and
d)the applicant transferred to the sponsor $100 each week for rent and $150 – $200 each week for food and other household expenses,
it was therefore not open for the Tribunal to find that such living arrangement was “more consistent with a landlord/boarder arrangement than a genuine de facto relationship”. It was further submitted that such finding was unsustainable, and that the findings of the Tribunal were made because it followed an illogical, irrational or unreasonable process of reasoning which occurred against the backdrop of a misconceived notion of what the Tribunal thought was involved in a “landlord/boarder relationship” as opposed to what constituted a de facto relationship. Reliance was placed by Mr Aleksov upon a number of statutory declarations made on behalf of the applicant from friends or family members of the sponsor which were supportive of the proposition, so it was submitted, that the applicant and the sponsor were in a close and genuine de facto relationship. [2]
[2] Court Book (CB) pp. 362, 371, 374 and 378.
Mr Byrnes, Counsel for the First Respondent, submitted that the Tribunal’s findings about the “landlord/boarder arrangement” was open to it. It was submitted that the use by the Tribunal of the word “this” was clearly a reference to the weekly payment for rent and food and other expenses, and that in that context, the statement was reasonable. The Court agrees with that submission, and with the submission that the Tribunal properly undertook its statutory task by analysing all relevant aspects of the relationship between the applicant and the sponsor by reference to r. 1.09A(3) considerations. A reading of the whole of the reasons of the Tribunal makes it clear that the Tribunal addressed all such relevant considerations between [17] – [53] inclusive of its reasons.
The Tribunal was entitled to have regard to the fact that the applicant had remained married to his Fijian wife, and had not divorced her, notwithstanding that he claimed to have separated from her in 2011 and further notwithstanding that he claimed that he had commenced a relationship with the sponsor in July 2011. The Tribunal was also entitled to have regard to the fact that though the sponsor was in receipt of Centrelink benefits in her capacity as a disability pensioner, she had not recorded with Centrelink that she was relevantly, at any time, in a de facto relationship with the applicant, notwithstanding that the applicant was an income earner for most of the period of time during which it was claimed by him that he was in a de facto relationship with the sponsor. At [43] of the reasons of the Tribunal, the Tribunal noted that though the parties had claimed to be in a relationship of 8 years, the applicant and the sponsor acknowledged that the applicant had lived and worked at Mungindi (which is near to Goondiwindi, and well away from the applicant’s residence) during 2014, 2015, 2016 and some of 2017.
The Court further accepts the submissions made on behalf of the first respondent that there were other findings of the Tribunal which, on the basis of all of the evidence before it, enabled the Tribunal to make the “landlord/boarder” finding which it did. Examples of such evidence are as follows:
a)At [20] of its reasons, the Tribunal noted that the applicant and the sponsor had never used a joint account opened by them, and that such account had been opened solely for the purpose of improving the applicant’s visa application prospects;
b)At [20] of its reasons, the Tribunal noted that each of the applicant and the sponsor had confirmed that income or disability pension payments had always been paid into each of the respective bank accounts of the applicant and the sponsor, and had not been intermingled;
c)At [22] and [23] of its reasons, the Tribunal addressed the question as to whether the applicant and the sponsor had any joint liabilities. The Tribunal found that apart from one joint electricity account, there was no evidence of any joint liability of the applicant and the sponsor. In any event, the Tribunal was entitled to find, as it did, that the one joint electricity account, rather than being of genuine financial pooling, was opened in joint names for the purpose of improving the applicant’s visa application prospects.
It cannot be said that no other rational or logical decision maker could not have made the same decision as the Tribunal. As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130] and [135]:
“[130] In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
…
[135] On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent’s claims. There was. The Tribunal did not believe the first respondent’s claim that he had engaged in the “practice of homosexuality” in the UAE and accordingly it was not satisfied that he feared persecution if he returned to Pakistan.”
The Court further agrees with the first respondent’s submission that it is a high bar which must be hurdled for it to be found that a decision maker has acted irrationally or illogically when arriving at a decision. The Court respectfully adopts what was said by Wigney J in SZUXN v Minister for Immigration and Border Protection (2016) 69 AAR 210 when discussing whether jurisdictional error had been demonstrated where some factual findings had been made which were said to be either irrational or illogical, His Honour at [52] and [55] said as follows:
“[52] As Robertson J put it in Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at [148], for a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality or rationality must be shown, “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions”. And as McKerracher J (with whom Reeves J agreed) emphasised in SZOOR v Minister for Immigration and Citizenship (2012) 202 FCR 1 (at [84]), a decision cannot be said by a reviewing court to be illogical, irrational or unreasonable simply because one conclusion has been preferred to another possible conclusion.
…
[55] Nevertheless, allegations of illogical or irrational reasoning or findings of fact must be considered against the framework of the inquiry being whether or not there has been jurisdictional error on the part of the Tribunal: SZRKT at 137 [148]. The overarching question is whether the Tribunal’s decision was affected by jurisdictional error: SZRKT at 137-138 [151]. Even if an aspect of reasoning, or a particular factual finding, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reasoning or finding of fact was immaterial, or not critical to, the ultimate conclusion or end result: Minister for Immigration and Citizenship v SZOCT (2010) 189 FCR 577 at 598-599 [83]-[84] (Nicholas J); SZNKO v Minister for Immigration and Citizenship [2013] FCA 123 at [113]. Where the impugned finding is but one of a number of findings that independently may have led to the Tribunal’s ultimate conclusion, jurisdictional error will generally not be made out: SZRLQ v Minister for Immigration and Citizenship (2013) 135 ALD 276 at 291 [66]; SZWCO at [64]-[67].”
The Tribunal did not overlook any relevant matter which ought to have been considered by it. It reached a conclusion having weighed up all of the evidence before it. As was said by Siopis, Kerr and Rangiah JJ in He v Minister for Immigration and Border Protection & Anor (2017) 255 FCR 41 at [82]:
“[82] The Tribunal’s reasons were not structured in a manner that formulaically addressed each of the relevant matters in turn, but they did not have to be: see Zhang at [20]. Further, as Charlesworth J said in Singh at [20], the impressionistic and evaluative nature of the Tribunal’s task must be taken into account when drawing implications from its reasons, and, further, such reasons are not to be construed minutely and finely with an eye attuned to the perception of error.”
There is no merit to Ground 1 of the application for review.
As to Ground 3 of the application for review, paragraphs [40] – [42] inclusive of the reasons of the Tribunal are as follows:
“[40] The Tribunal accepts that the parties represent to themselves and are recognised by the sponsor’s family members as in a relationship, but is not convinced that this is a de facto relationship as defined in s.5CB. The Tribunal accepts that these family members support the visa application. No convincing evidence was provided and the Tribunal does not accept that the parties are recognised and related to as a de facto couple by the applicant’s family in Fiji.
[41] The Tribunal accepts that the sponsor’s health providers recognise her as being in a relationship with the applicant. The Tribunal notes however that the sponsor confirmed at hearing that she has not advised Centrelink that she is in a de facto relationship. As noted, confirmation was provided that the applicant was recorded as a resident at the sponsor’s house on 31 December 2018. The applicant’s niece and her two children were recorded as residents on 29 July 2019.
[42] The Tribunal accepts that there is recognition and strong support from the sponsor’s family and from the sponsor’s health providers for the relationship, but finds that there is limited social recognition of the relationship within the applicant’s family and social network in Fiji.”
It was submitted on behalf of the applicant that the evidence of “corroborative witnesses” ought to have been taken into account by the Tribunal when assessing the social aspects of the relationship between the applicant and the sponsor. It was submitted that the Tribunal did not evaluate the significance of the opinions of others who declared that the applicant and the sponsor were in a genuine de facto relationship. It was also submitted that if the Tribunal did not accept the evidence of the applicant’s witnesses then it was required to explain why it did not so accept such evidence.
It was submitted on behalf of the first respondent that the Tribunal had properly considered the relevant r. 1.09A matters and that it had taken into account the statutory declarations made by people supportive of the applicant’s claims. The Court agrees with such submissions. The views of the applicant’s witnesses/supporters were cumulatively considered by the Tribunal in its deliberations. An example of how the Tribunal weighed up the evidence against the applicant’s claims was seen at [48] – [49] of the reasons of the Tribunal which provided as follows:
“[48] From the evidence provided, and from observing the parties at hearing, the Tribunal accepts that they provide each other with companionship and emotional support. The applicant is hard of hearing, and the sponsor helped him to understand questions in English by repeating them loudly to the applicant. The Tribunal accepts that the applicant has provided care and support for the sponsor, including encouraging her to undergo sleeve gastrectomy surgery.
[49] The Tribunal, however, finds the applicant’s claim that he fell in love with the sponsor at first sight and remained in the country for this reason, rather than to work and earn money, unconvincing. The Tribunal considers that if the applicant could not bear to be separated from the sponsor, he would not have lived and worked, in 2014, 2015, 2016 and 2017, in a town nine hours’ drive from where the sponsor lives in Bundaberg.”
To the extent that the applicant disagreed with how the Tribunal treated the evidence before it, the applicant asks this Court to undertake an impermissible merits review of the decision of the Tribunal. The Tribunal acknowledged that the applicant received strong support from the sponsor’s family members and from the sponsor’s health providers, [3] but remained unconvinced that the applicant and the sponsor were in a de facto relationship as provided for in s. 5CB(2) of the Act.
[3] [42] of the reasons of the Tribunal.
Even if the Tribunal erred in giving insufficient weight to the evidence of the applicant’s witnesses, any such error was not in the circumstances material having regard to the other findings of the Tribunal which were found to be determinative on the question of whether the applicant and the sponsor were in a genuine de facto relationship or not. Any such error was not material, in that it could not realistically have resulted in a different decision being made by the Tribunal. In Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421, Bell Gageler and Keane JJ at [45] and [46] said as follows:
“[45] Materiality, whether of a breach of procedural fairness in the case of an undisclosed notification or of a breach of an inviolable limitation governing the conduct of the review in the case of an incorrect and invalid notification, is thus in each case essential to the existence of jurisdictional error. A breach is material to a decision only if compliance could realistically have resulted in a different decision.
[46] Where materiality is in issue in an application for judicial review, and except in a case where the decision made was the only decision legally available to be made, the question of the materiality of the breach is an ordinary question of fact in respect of which the applicant bears the onus of proof. Like any ordinary question of fact, it is to be determined by inferences drawn from evidence adduced on the application.”
Neither could the decision of the Tribunal be considered as legally unreasonable, or one lacking an evident and intelligible justification, as such respective concepts were considered by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76] where it was said:
“[66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.
…
[76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”
There is no merit to Ground 3 of the application for review.
At the hearing before the Court, no submissions were made on behalf of the applicant on the issue as to whether, in the light of the applicant having failed to meet the relevant criteria as set out in clause 3001 of Schedule 3 to the Regulations, there were compelling reasons for waiver of such criteria. The Court does not therefore deal with questions which may have otherwise arisen on such issue. In any event, the Tribunal, at [61] – [78] of its reasons, comprehensively considered that issue, and the Court finds that it did not err in finding that compelling reasons for waiver had not been established.
No jurisdictional error has been established on the part of the Tribunal.
The application for review is dismissed.
The Court will hear the parties as to costs.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Egan
Associate:
Date: 29 July 2020
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Natural Justice
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Jurisdiction
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