Nduta v Minister for Immigration
[2016] FCCA 1220
•1 June 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| NDUTA v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 1220 |
| Catchwords: MIGRATION – Review of decision by Administrative Appeals Tribunal – whether the Administrative Appeals Tribunal’s decision was affected by jurisdictional error – whether the Administrative Appeals Tribunal complied with s.359AA of the Migration Act 1958 (Cth) – whether the information that was allegedly not given to the applicant for comment was information that was excluded from the obligations under s.359A(1) of the Migration Act 1958 (Cth) – whether the Administrative Appeals Tribunal erred by taking into account irrelevant material in determining whether the applicant was in a genuine spousal relationship with the sponsor – whether the Administrative Appeals Tribunal considered relevant material – whether the Administrative Appeals Tribunal was obliged to consider the applicant’s claim that he was a victim of family violence – no jurisdictional error – application dismissed. |
| Legislation: Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5F, 31, 65, 338, 357A, 359A, 359AA, 424, 424A, 474 Migration Regulations 1994 (Cth), regs.1.15A, 2.01, Schedule 2 – cls.820.211, 820.221 |
| Cases cited: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 SZCKD v Minister for Immigration and Multicultural Affairs [2006] FCA 451 SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 415 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Abebe v Commonwealth of Australia (1999) 197 CLR 510 Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 NAHI v Ministerand Multicultural and Indigenous Affairs [2004] FCAFC 10 Minister for Immigration and Citizenship v SZRKT [2013] FCA 317 Minister for Immigration and Border Protection v Truong [2016] FCAFC 54 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507 |
| Applicant: | FREDRICK MWANGI NDUTA |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1934 of 2014 |
| Judgment of: | Judge Emmett |
| Hearing date: | 17 May 2016 |
| Date of Last Submission: | 17 May 2016 |
| Delivered at: | Sydney |
| Delivered on: | 1 June 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr Paul Cutler |
| Solicitors for the Applicant: | Phillip Silver & Associates Lawyers |
| Counsel for the Respondents: | Mr Bora Kaplan |
| Solicitors for the Respondents: | DLA Piper Australia |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1934 of 2014
| FREDRICK MWANGI NDUTA |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Migration Review Tribunal dated 12 June 2014 and handed down on 17 June 2014 (“the Tribunal”).
Prior to considering the proceeding before this Court, these Reasons provide the relevant procedural background, a summary of the legislative framework, a summary of the decision of a delegate of the First Respondent (“the Delegate”), and a summary of the Tribunal’s review and decision.
Background
On 20 December 2010, the Applicant lodged an application for a Partner (Temporary) (Class UK) Subclass 820 visa with the Department of Immigration and Citizenship (“the Department”) on the basis of being in a married relationship with an Australian citizen (“the Sponsor”).
On 1 November 2012, the Delegate refused the Applicant’s application for a temporary partner visa.
On 26 November 2012, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal.
On 17 June 2014, the Tribunal handed down its decision affirming the decision of the Delegate not to grant a temporary partner visa.
On 11 July 2014, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.
Legislative framework
Pursuant to s.65(1) of the Act, if satisfied of a number of matters, the First Respondent may grant a visa. Section 31(1) of the Act provides that there are to be prescribed classes of visa. One class of visa is a Partner (Temporary) (Class UK) visa (reg.2.01 of the Migration Regulations 1994 (Cth) (“the Regulations”) and Schedule 1 to the Regulations).
For the grant of a temporary partner visa, the Applicant was required to satisfy the criteria in cls.820.211 and 820.221 of Schedule 2 to the Regulations, which relevantly provides:
“820.21 Criteria to be satisfied at time of application
820.211
…
(2) An applicant meets the requirements of this subclause if:
(a) the applicant is the spouse or de facto partner of a person who:
(i) is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;
…
820.22 Criteria to be satisfied at time of decision
820.221
…
(3) An applicant meets the requirements of this subclause if:
(a) the applicant would continue to meet the requirements of subclause 820.211 (2), (3), (4), (5) or (6) except that the relationship between the applicant and the sponsoring partner has ceased; and
(b) either or both of the following circumstances applies:
(i) either or both of the following:
(A) the applicant;
…
has suffered family violence committed by the sponsoring partner”.
(Emphasis added).
Section 5F of the Act defines ‘Spouse’ as follows:
“5F Spouse
(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
(d) they:
(i) live together; or
(ii) do not live separately and apart on a permanent basis.”
(Emphasis added).
Further, reg.1.15A of the Regulations prescribes matters that must be taken into account in determining whether a person is the spouse of another person. They include: the financial aspects of the relationship; the nature of the household; the social aspects of the relationship; and, the nature of the persons’ commitment to each other.
Under s.338 of the Act, a decision to refuse to grant a temporary partner visa is a decision which may be reviewed by the second respondent.
The requirements of the natural justice hearing rule are exhaustively stated in Division 5 of Part 5 of the Act (s.357A of the Act). Division 5 Part 5 includes ss.359A and 359AA, which provides as follows:
“359A Information and invitation given in writing by Tribunal
(1) Subject to subsections (2) and (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(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; and
(c) invite the applicant to comment on or respond to it.
(2) The information and invitation must be given to the applicant:
(a) except where paragraph (b) applies--by one of the methods specified in section 379A; or
(b) if the applicant is in immigration detention--by a method prescribed for the purposes of giving documents to such a person.
(3) The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 359AA.
(4) This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b) that the applicant gave for the purpose of the application for review; or
(ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
(c) that is non-disclosable information.
(5) A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 362B(1F).
359AA Information and invitation given orally by Tribunal while applicant appearing
(1) If an applicant is appearing before the Tribunal because of an invitation under section 360:
(a) the Tribunal may orally give 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 that is under review; and
(b) if the Tribunal does so--the Tribunal must:
(i) ensure, 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
(ii) orally invite the applicant to comment on or respond to the information; and
(iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and
(iv) if the applicant seeks additional time to comment on or respond to the information--adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.
(2) A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 362B(1F).”
Under s.474(2) of the Act, a decision of the second respondent is a “privative clause decision”. Under s.474(1)(a) of the Act, a privative clause decision is final and conclusive.
However, a purported decision of the second respondent which is affected by jurisdictional error is not a decision which is made under the Act and therefore is not a privative clause decision (see Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476).
The Delegate’s decision
On 13 September 2012, the Department sent an email to the Applicant, indicating that it had received adverse information which did not support his application. The email invited the Applicant to comment on the genuineness of his marriage to the Sponsor.
On 10 October 2012, the Applicant’s migration agent responded to the email sent by the Department, addressing the concerns raised by the Department.
After considering the matters in reg.1.15A of the Regulations, the Delegate found that the Applicant and the Sponsor were not in a genuine spousal relationship.
Since the Delegate concluded that the Applicant and the Sponsor were not in a spousal relationship, the Delegate did not consider the Applicant’s claim that he was a victim of family violence.
Accordingly, on 1 November 2012, the Delegate refused the Applicant’s application for a temporary partner visa on the basis that the Applicant was not in a spousal relationship with the Sponsor as required by cl.820.211(2) of Schedule 2 to the Regulations.
The Tribunal’s review and decision
On 26 November 2012, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal.
The Applicant provided further documents in support of his review application, including submissions made by the Applicant’s migration agent, various photographs of him and the Sponsor together, bank statements, and two statutory declarations from mutual friends.
On 5 November 2013, the Tribunal wrote to the Applicant informing him that the Tribunal had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the Applicant to attend a hearing on 23 December 2013 to give oral evidence and present arguments. That Tribunal hearing was subsequently rescheduled twice to 3 June 2014.
On 3 June 2014, the Applicant attended the Tribunal hearing and gave evidence.
The Tribunal explored the Applicant’s claims with him in some detail at the hearing and put to him concerns it had about his evidence, noting his responses.
The Tribunal noted that the issue for consideration before it was whether the Applicant and the Sponsor were in a spousal relationship as defined by s.5F of the Act.
The Tribunal found the age difference of 53 years between the Applicant and the Sponsor to be of concern. The Tribunal found the Sponsor’s claims that the Applicant had only married her for a partner visa, supported by the letters from the Sponsor’s children and friend, to be more plausible than the Applicant’s claim that he married the Sponsor for love.
In reaching that finding, the Tribunal noted that soon after the Applicant arrived in Australia in 2009, he was involved in an online marriage discussion with a woman in Queensland, who had obtained a marriage licence despite never meeting the Applicant in person. The Tribunal found that this evidence undermined the Applicant’s claim that his relationship with the Sponsor was genuine.
Further, in assessing the factors in reg.1.15A of the Regulations, the Tribunal noted that although the Applicant had contributed to the household costs, there was no evidence that the Applicant and the Sponsor had any shared assets or liabilities.
Additionally, the Tribunal considered the statutory declarations made by the Applicant’s friends, but found them to offer little evidence as to the nature of the relationship between the Applicant and the Sponsor.
In light of these findings, the Tribunal was not satisfied that at the time of the visa application, the Applicant and the Sponsor were in a genuine spousal relationship. On that basis, the Tribunal did not consider the Applicant’s claim that he was a victim of family violence.
On 17 June 2014, the Tribunal handed down its decision affirming the Delegate’s decision on the basis that the Applicant was not the ‘spouse’ of the Sponsor, and therefore did not satisfy cl.820.211(2)(a) of Schedule 2 to the Regulations.
The proceeding before this Court
The Applicant was represented before this Court by Mr Paul Cutler, of counsel.
At the commencement of today’s hearing, the Applicant was given leave to rely on the grounds contained in an Amended Application filed on 3 May 2016, as follows:
“1. The Tribunal has not complied with section 359AA(1)(b)(iii) of Migration Act in that: the Applicant was not advised that he may seek additional time to comment on or respond to the letters referred to in [15] of the Tribunal Decision (CB 508).
2. In finding that the Applicant did not meet the time of application criterion in sub clause 820.211(2) the Tribunal took into account material which was not relevant.
Particulars
The Tribunal inter alia relied on the Letters (para [15] of the decision) and other information which related to a state of affairs that existed some months after the time of application.
The Tribunal had regard to the Applicant's discussions with [name omitted] in 2009, a time before the Applicant and the Sponsor had actually met (para [18] of the decision).
3. In finding that the Applicant did not meet the time of application criterion in sub clause 820.211(2) the Tribunal failed to consider material which was relevant.
Particulars
The Tribunal did not consider inter alia the FOI documents pages 26, 27, 32 and 109 as annexed to the submissions provided by Mr Silver (on behalf of the Applicant) to the Tribunal dated 27 May 2014.
4. The Tribunal has failed to consider the Applicant’s claim as a victim of family violence.
5. There is a reasonable apprehension of bias apparent from the Tribunal’s decision.”
Ground 1
Ground 1 asserts that the Tribunal failed to comply with s.359AA of the Act when giving to the Applicant, for comment, information that was part of the reason for affirming the decision under review. The information was said to be two letters referred to by the Tribunal in its reasons, as follows:
“15. Additionally the Tribunal has considered the claims made in two letters to the Department by the sponsor’s friend and children. The claims are that the review applicant abused the sponsor and she became physically unwell as a result. They had fears for her safety and questioned the review applicant's intentions and motivation for the marriage. These claims were set out by the delegate in the decision (a copy of which was provided to the Tribunal).”
Counsel for the Applicant also referred to the following exchange as disclosed in the transcript annexed to the affidavit of Hafizah Binte Syed Ismail, affirmed 16 December 2014, as follows:
“Member: Six of Betty’s children in March 2011 – they wrote a letter to the Department. They said they do not believe you had genuine intentions in the marriage. They say you knew that she was to inherit considerable estate. They noticed dramatic changes in her personality for the worse…
In this letter they say when you are not working, you are out leaving her at home. They worry about her safety and claim that you swore at one daughter who spoke to you with concerns about her mother. Would you like to comment on this letter?
Interpreter: Betty’s children, I didn’t have a problem with them, and when they say that I married her because of an inheritance, I didn’t want her money and I came to find out about her money after we were married and she made me sign a power of attorney – she wanted me to sign a power of attorney and I said to her, “no you have your children, they’re adult children. I’m your husband.” Money matters – I don’t know, and I did not sign the power of attorney. She came back again and asked me to sign again, and the money that she’s talking about is the house and money that she didn’t tell me before and her matters are in Court; they have not been settled. I did not want her money.”
Counsel for the Applicant contended that this exchange was an attempt by the Tribunal to give information to the Applicant for comment in accordance with s.359AA of the Act. Mr Cutler identified the exchange to be the two letters. The First Respondent conceded that, if the Tribunal was obliged to give that information to the Applicant, it did not do so in accordance with s.359AA of the Act.
However, the counsel for the First Respondent contended that this information was given to the Tribunal by the Applicant for the purpose of his review application and was therefore excluded from the obligation under s.359A or s.359AA of the Act by reason of s.359A(4)(b) of the Act.
Counsel for the Applicant conceded that the particulars of the two letters set out in the Delegate’s decision were the same particulars relied upon by the Tribunal, and that a copy of the Delegate’s decision had been provided to the Tribunal as part of his application for review. In SZCKD v Minister for Immigration and Multicultural Affairs [2006] FCA 451, Graham J at [34] found that information provided by an applicant in support of an application for review constituted information that the applicant gave for the purposes of the application within the meaning of s.424(3)(b) of the Act. Graham J found that s.424A of the Act had no application in the circumstances of such a case. The information provided in that case in support of the review application included a copy of the delegate’s determination of the appellant’s application for a protection visa.
Moreover, and in any event, particulars of the two letters were also set out in annexures to the Applicant’s first set of written submissions to the Tribunal. Those submissions were provided to the Tribunal for the purpose of the Applicant’s application for review. All information contained within those submissions comprised information of the kind identified in s.359A(4)(b) of the Act as being excluded from the obligation of s.359A of the Act.
In the circumstances, the information identified by the Applicant in Ground 1 was not information that enlivened any obligation under s.359A(1) of the Act. In the circumstances, where there was no duty otherwise imposed by s.359A of the Act, any non-compliance with s.359AA of the Act is of no legal consequence (see SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 415).
Accordingly, Ground 1 is not made out.
Ground 2
Ground 2 contends that the Tribunal erred in taking into account irrelevant material in considering whether the Applicant and the Sponsor were in a spousal relationship at the time of the visa application.
Clause 820.211(2)(a) of Schedule 2 to the Regulations prescribes a “Time of Application” criterion for the grant of a temporary partner visa that plainly is not determined until the decision maker makes the “Time of Decision” determination pursuant to cl.820.221 of Schedule 2 to the Regulations.
Regulation 1.15A(2)(c) of the Regulations requires that, in considering whether the parties are in a married relationship as defined in s.5F of the Act, the Tribunal must have regard to “all the circumstances of the relationship”. The Tribunal’s discretion as to the matters it takes into account are broad and unconfined, save that the relevant circumstances must pertain to the relationship between the parties.
Each of the matters identified by the Applicant as being irrelevant considerations pertained to the issue of whether the Applicant and the Sponsor were in a married relationship. The breadth of information that the Tribunal took into account in considering whether the Applicant and the Sponsor were in a married relationship involved consideration of many aspects of the relationship, including the unusual age difference between the parties.
None of the factors considered by the Tribunal in considering whether the Applicant met the “Time of Application” criterion were irrelevant in the sense of being mandatorily forbidden by the statute for consideration. I accept the submission of counsel for the First Respondent that for a matter to be irrelevant, consideration of that matter must be forbidden by the statute (see Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 40 per Mason J).
The Tribunal identified with specificity the material to which it had regard in considering whether the Applicant met the “Time of Application” criterion in cl.820.211(2)(a) of Schedule 2 to the Regulations. The Tribunal’s conclusion that the Applicant did not, was open to it on the evidence and material before it, and for the reasons it gave.
Otherwise, the complaints in Ground 2 are more in the nature of a disagreement with the findings and conclusions of the Tribunal, thereby inviting merits review which this Court cannot undertake (see Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [53] – [54] per Gleeson CJ and McHugh J; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ). The following was stated in Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 at [20] per North, Lander and Katzmann JJ:
“It was not for the Federal Magistrate’s Court, nor for this Court, to review the merits of [the Tribunal’s] decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611. A wrong finding of fact is not an error of law: Waterford v The Commonwealth (1987) 163 CLR 54 at 77. Unsound reasoning is not an error of law: Reg v The District Court; Ex parte White (1966) 116 CLR 644 at 654; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356.”
Accordingly, Ground 2 is not made out.
Ground 3
Ground 3 asserts that the Tribunal failed to consider material which was relevant, being information contained in documents obtained pursuant to a Freedom of Information (“FOI”) request. That information was identified by counsel for the Applicant as follows:
a)Report on Interview dated 18 March 2011 prepared by BFU Officer, Ms Natalie Veitch;
b)File Notes by Ms Natalie Veitch dated 18 March 2011 and 25 March 2011; and
c)File Notes by Ms Vesna Trajcevski dated 23 April and 8 August 2012.
The Report on Interview was a report prepared following a meeting with the Applicant and the Sponsor. Inter alia, the report expressed some continuing concerns about the commitment of the parties.
On 18 March 2011, a File Note by Ms Veitch stated that she had some concerns about the level of commitment and whether the relationship was mutually exclusive.
On 25 March 2011, a further File Note by Ms Veitch noted that while the “home visit uncovered some concern that the [the Sponsor] had she has since confirmed that the relationship is genuine and continuing and that her concerns were raised from an involvement that the [primary applicant] had prior to their relationship commencing. Case returned to the case officer for continued processing”.
Additionally, a File Note dated 14 May 2012 from a different officer, prepared in the context of a family violence referral, stated that “given that this is not a clear cut case, agree that case should be referred to Centrelink for an opinion”.
Further, a File Note recorded by Ms Trajcevsi dated 8 August 2012, stated the following: “relationship bona fides assessment (820.221(2)(a) – genuine @ time of L/date”. However, that File Note does not provide any other information, including any information for the basis of that statement.
Counsel for the Applicant submitted that those materials appeared to show that officers of the Department investigating the case were satisfied that the relationship between the Applicant and the Sponsor was genuine, and therefore transferred the matter to the Family Violence Unit for assessment. Mr Cutler further submitted that if the officers had reached the conclusion that the Applicant and the Sponsor were not in a spousal relationship, then the referral would not have been necessary.
I do not accept that submission. Plainly, it was not for the officers of the Department to make any determination as to the genuineness of the relationship between the Applicant and the Sponsor. That obligation reposed in the Delegate and the Tribunal. The Department officers are obliged to refer a matter to the Family Violence Unit for assessment in the event of a complaint of domestic violence.
I do not accept that the referral of the case by the Department’s officers to the Family Violence Unit for assessment was based on any determination by them that the Applicant and the Sponsor were in a spousal relationship at the time of the application. In light of the information before them relating to family violence, it was obvious that such complaints should be referred to the Family Violence Unit.
None of the authors of the File Notes or Report on Interview gave evidence to the Tribunal, and no written or oral submissions were received from them.
In any event, the material referred to was attached to the Applicant’s written submissions to the Tribunal dated 27 May 2014. The Tribunal referred to the written submissions and confirmed that they were in the possession of the Tribunal.
Moreover, it was open to the Tribunal at least not to consider the information to be material, and for that reason, not to make any express reference to it.
In relation to the material, it is well established that the Tribunal is not under an obligation to comment on every item of material before it “to the extent of saying why it rejected a particular item, or attributed less weight to it than another item” (see NAHI v Ministerand Multicultural and Indigenous Affairs [2004] FCAFC 10 at [14] per Gray, Tamberlin & Lander JJ).
Moreover, it is not always a jurisdictional error for relevant material to be overlooked. In Minister for Immigration and Citizenship v SZRKT [2013] FCA 317, Robertson J stated the following at [111] – [112]:
“111. The fundamental question must be the importance of the material to the exercise of the Tribunal’s function and thus the seriousness of any error. In my opinion the distinction between claims and evidence provides a tool of analysis but is not the discrimen itself. Further, it is important not to reason that because a failure to deal with some (insubstantial or inconsequential) evidence will, in some circumstances, not establish jurisdictional error, then a failure to deal with any (substantial and consequential) evidence will also not establish jurisdictional error.
112. As the Full Court said in VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [77] whether the Tribunal is obliged to consider a document or documents will depend on the circumstances of the case and the nature of the document. In my opinion, the relevant factors in relation to (corroborative) evidence include first, the cogency of the evidentiary material and, second, the place of that material in the assessment of the applicant’s claims.”
(Emphasis added).
The material referred to by the Applicant, whilst capable of being taken into consideration, was not cogent in the sense referred to by Robertson J and the failure by the Tribunal to specifically refer to that evidence does not amount to jurisdictional error.
Otherwise, the Tribunal identified the documents to which it had particular regard, including past recognition by the Sponsor’s children of the relationship. The Tribunal referred specifically to statutory declarations provided by two daughters at the outset of the relationship in support of the Applicant’s visa application. In considering that material, the Tribunal also had regard to the evidence before it and a subsequent letter submitted by the children in which they expressed serious reservations about the Applicant’s intentions and fears for their mother.
In the circumstances, I draw the inference that the Tribunal had regard to the FOI documents referred to in Ground 3, however, did not find them to be material. Alternatively, I am satisfied that the material in those documents was not sufficiently cogent such that the Tribunal’s failure to consider them amounts to jurisdictional error.
Accordingly, Ground 3 is not made out.
Ground 4
Ground 4 asserts that the Tribunal failed to consider the Applicant’s claim as a victim of family violence.
A fair reading of the Tribunal’s decision record makes clear that when the Tribunal stated that it did not consider the claims of the Applicant that he was the victim of family violence, it was in the context of that being a requirement of cl.820.221(3)(a) of Schedule 2 to the Regulations. A fair reading of the Tribunal’s decision record makes clear that the Tribunal considered in some detail the relatively “turbulent relationship” of the parties in the context of determining whether the parties were in a genuine spousal relationship as required by the “Time of Application” criteria in cl.820.221 of Schedule 2 to the Regulations.
Having found that the Applicant did not meet the “Time of Application” requirements of cl.820.211(2)(a) of Schedule 2 to the Regulations, the Tribunal was entitled not to consider whether, in any event, the Applicant met the requirements of cl.820.221(3)(a) of Schedule 2 to the Regulations (see Minister for Immigration and Border Protection v Truong [2016] FCAFC 54 at [46] per Tracey, Flick & Griffiths JJ).
As stated above, the Tribunal’s decision record is peppered with references to the recurring allegations of family violence by each of the Applicant and the Sponsor against the other. The Tribunal was entitled to have regard to that as part of the history of the relationship between the parties in determining whether or not they were in a genuine spousal relationship.
As stated above, the Tribunal’s finding that the Applicant did not meet cl.820.211(2)(a) of Schedule 2 to the Regulations was open to it on the evidence and material before it, and for the reasons it gave including its adverse credibility findings in respect of the Applicant. Credibility findings are a matter par excellence for the Tribunal (see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J). A credit finding is sound if it was “open to [the Tribunal] on the material, was based on rational grounds and was arrived at on consideration of matters that were logically probative of the issue of credibility” (see Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547).
Accordingly, Ground 4 is not made out.
Ground 5
Ground 5 alleges a reasonable apprehension of bias on the part of the Tribunal because of the reference by the Tribunal to the fact that the Sponsor “was old enough to be [the Applicant’s] grandmother.”
Ground 5 was withdrawn by Mr Cutler. Had it been pressed, I would have accepted the First Respondent’s submissions in their entirety that the Tribunal was merely highlighting the unusual nature of the parties’ relationship. At the time of the hearing before the Tribunal, the Applicant was 26 years of age and the Sponsor was 79 years of age. I accept that the 53 year age difference was merely commented on by the Tribunal as an unusual matter, which it is. Any allegation of bias would need to be distinctly made and clearly proven (see Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507 at 531 per Gleeson CJ and Gummow J).
Conclusion
A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the Applicant; explored those claims with the Applicant at a hearing; and, had regard to all material provided in support. The Tribunal put to the Applicant matters of concern it had about his evidence and noted the Applicant’s responses.
The Tribunal then made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for the reasons it gave. A fair reading of the Tribunal’s decision record makes clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law.
In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.
The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The proceeding before this Court should be dismissed with costs.
I certify that the preceding eighty-one (81) paragraphs are a true copy of the reasons for judgment of Judge Emmett
Associate:
Date: 1 June 2016
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