NEWAL v Minister for Immigration

[2017] FCCA 1237

FEDERAL CIRCUIT COURT OF AUSTRALIA

NEWAL v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1237

Catchwords:
MIGRATION – Application for judicial review of decision of Migration Review Tribunal (Tribunal) affirming decision of a delegate of the first respondent not to grant the applicant a Partner (Temporary) (Class UK) (subclass 820) visa – whether the Tribunal failed to consider corroborative evidence – whether corroborative evidence was cogent and material – jurisdictional error found - whether the Tribunal failed to consider all of the evidence before it and for that reason is to be taken to have misconstrued s.5CB of the Migration Act 1958 (Cth) – whether Tribunal acted unreasonably in not granting applicant further hearing because of asserted translation problems at hearing before the Tribunal.

Legislation:

Migration Act 1958 (Cth), ss.5CB(1), 5CB(2), 5CB(3)

Migration Regulations 1994 (Cth), reg.1.09A(2), 1.09A(3)
Migration Regulations 1994 (Cth), Schedule 2, cl.820.211(2), 820.211(2)(a), 820.211(2)(d)

Cases cited:

Bondelmonte v Bondelmonte [2017] HCA 8

Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114

Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99

Minister for Immigration & Multicultural Affairs v Anthonypillai [2001] FCA 274

SZTIF v Minister for Immigration & Anor [2014] FCCA 945

Applicant: AMIT NEWAL

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 83 of 2015

Judgment of: Judge Manousaridis

Hearing date: 27 May 2016

Delivered at: Sydney

Delivered on: 9 June 2017

REPRESENTATION

Counsel for the Applicant: Mr A Kumar

Solicitors for the Respondents:

Mr A Keevers of

Sparke Helmore Lawyers

ORDERS

1. The decision of the Migration Review Tribunal made on 18 December 2014 affirming the decision of the delegate of the first respondent made on 31 October 2013 not to grant the applicant a Partner (Temporary) (Class UK) (subclass 820) visa (Partner visa) is quashed.

2. The Administrative Appeals Tribunal is substituted for the Migration Review Tribunal as the second respondent.

3. Pursuant to Item 15AG of Schedule 9 to the Tribunals Amalgamation Act 2015 (Cth) the Administrative Appeals Tribunal determine according to law the application made to the Migration Review Tribunal to review the decision of a delegate of the first respondent made on 31 October 2013 not to grant the applicant a Partner visa.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 83 of 2015

AMIT NEWAL

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant applies for judicial review of a decision made by the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant a Partner (Temporary) (Class UK) (subclass 820) visa (Partner visa).

Application for Partner visa

1. On 3 September 2012 the applicant, who is a national of Fiji, applied for a Partner visa. To have been entitled to a Partner visa, the applicant had to satisfy at the time of application cl.820.211(2) of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations) which required that the applicant “is the spouse or de facto partner of a person who” is, among other things, an Australian citizen.

2. Under s.5CB(1) of the Migration Act 1958 (Cth) (Act) a person is the de facto partner of another person if, under s.5CB(2) of the Act, the person is in a de facto relationship with the other person. Subsection 5CB(2) provides:

   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. Subsection 5CB(3) of the Act provides that 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”. Regulations have been made under s.5CB(3), and these are to be found in reg.1.09A of the Regulations. Under reg.1.09A(2) of the Regulations, when considering an application for a Partner visa, the Minister must consider all the circumstances of the relationship, including the matters set out in reg.1.09A(3). The matters in that paragraph 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.

4. The applicant supported his application for a partner visa with a number of documents. First, he relied on a statutory declaration he made on 2 September 2012.[1] In that declaration the applicant said he met the sponsor, Ms S, at a party in Rooty Hill, after which the applicant and Ms S commenced regular contact with each other. Ms S was married at the time and had three children. On 25 May 2011, after Ms S informed the applicant it was very hard to keep their relationship “incognito”, the applicant and Ms S moved in together. Ms S’s children moved in with the applicant and Ms S, and the children adopted the applicant as their natural father.

   [1] CB58

5. Second, the applicant relied on a statutory declaration made by Ms S on 2 September 2012.[2] The contents of that declaration mirrored what the applicant said in his statutory declaration. Ms S said she met the applicant on 10 April 2011 at a party, in May 2011 she moved in with the applicant, her children moved in with her and the applicant, and the children adopted the applicant as their natural father.

   [2] CB59

6. Third, the applicant relied on two statutory declarations, one made by Mr DP on 31 August 2012,[3] and one made by Mr K on 1 September 2012.[4] Mr DP said he had known the applicant for 14 months as a result of the applicant coming to Mr DP’s shop. He further said he had seen the applicant shopping with Ms S and her kids, the applicant and Ms S have been attending functions, and he visited the applicant and Ms S at [B] Road, Kingswood. Mr K, on the other hand, said he is the applicant’s cousin, and that he had come to know about Ms S approximately “15 months ago” when the applicant introduced Ms S to him. Mr K further said he visited the home of the applicant and Ms S and “I usually see them enjoying with their kids”.

   [3] CB42

   [4] CB45

7. Fourth, the applicant relied on the following email Ms S sent to the Department of Immigration and Border Protection (Department) on 12 September 2013 (errors in original):[5]

   I [Ms S], am writing to notify immigration of my relationship with [the applicant], who I sponsored as a defecto.

   Our relationship has broken down since 06/06/2013. I have tried to reconciliate, but not achieving any affect [sic] from [the applicant], and I would like to withdraw my application”.

   [5] CB109

8. Fifth, the applicant relied on: (a) a letter from the ANZ Bank dated 17 September 2013 attaching a bank statement of an account of which the applicant is the only named holder, but which shows the applicant’s address to be [B] Road, Kingswood;[6] (b) a statement from a credit union addressed to Ms S at [B] Road, Kingswood that covers the period 1 August 2013 to 31 August 2013;[7] and (c) a document titled “Tenant Detail” which purports to record rent payments received from the applicant and Ms S in relation to room 6 at [B] Road, Kingswood from 6 December 2012 to 8 September 2013.[8]

   [6] CB115-121

   [7] CB122

   [8] CB123-124

9. Finally, the applicant relied on a report by a psychologist dated 18 October 2013.[9] The report said the applicant stated he met and moved in with his partner after which he was able to feel secure and felt he had a family. This changed when the applicant’s partner told the applicant she wished to sponsor another person. The applicant’s partner became aggressive and violent, making unreasonable demands of the applicant and throwing objects at him. After the applicant’s partner moved out, and when the applicant was at work, his partner returned and went through the applicant’s documents.

   [9] CB127-129

Before the Tribunal

1. Before the Tribunal the applicant said he met Ms S on 10 April 2011 at a social gathering. At that time Ms S was living in Liverpool and the applicant was living at [B] Road, Kingswood. When they met Ms S was living with her three children, but was no longer living with her ex-husband.[10] On 26 May 2011 Ms S moved in to live with the applicant on a full time basis at [B] Road, Kingswood. Ms S’s children lived with her husband’s parents until 7 May 2012 when the children moved in with her and the applicant at [B] Road, Kingswood.[11] The applicant ceased living with Ms S in September 2013.

   [10] CB214, [10]

   [11] CB214, [12]

2. The applicant gave evidence that when they were together he and Ms S had an intermingling of financial affairs. That included a joint bank account.[12] The applicant said that at all times he cohabitated with Ms S he had a strong relationship with her children. The applicant further said he and Ms S gave each other companionship, emotional support, and, at the time, he and Ms S saw their relationship as being long term.[13]

   [12] CB219, [46]

   [13] CB219, [46]

3. Two other persons gave evidence at the hearing. One was Mr P. He said he lived at [B] Road, Kingswood until December 2012. He said he recalled Ms S moved into those premises in May 2011, and that she and the applicant lived very happily together. Mr P also said that at the beginning Ms S was “in and out”, that the children moved in in May 2012, and that the children were close to the applicant. The other person who gave evidence was Mr G, the nephew of Mr P, who said that, until December 2012, when Mr P moved out, Mr G visited [B] Road, Kingswood most weeks. He said that when he first met the applicant and Ms S he thought their relationship was a very good one. He said, however, that sometime in early 2012 Ms S attacked the applicant in front of Mr G, stating the applicant had no money. Mr G said the relationship went bad at the end of 2011.[14]

   [14] CB216, [26]-[27]

4. After the hearing, the Tribunal sent to the applicant a letter dated 20 November 2014 (359A Letter) in which it identified three items of information the Tribunal considered would be the reason or a part of the reason for affirming the decision under review.[15] The first was a letter from Centrelink that stated Ms S was granted “parenting payment single” from February 2012, and that Ms S “was not partnered”. The second item of information was the evidence Mr G gave about when the applicant’s relationship with Ms S ended. The third item of information was the applicant’s not mentioning he was in a de facto relationship with Ms S in the application the applicant made to the Refugee Review Tribunal (RRT) for review of a decision not to grant the applicant a Protection (Class XA) visa (Protection visa).

   [15] CB200-204

5. The 359A Letter also referred to the applicant’s having entered Australia on a visitor visa that ceased to have effect on 27 November 2010, which meant the applicant did not hold a substantive visa on 3 September 2012 when the applicant applied for a Partner visa. The Tribunal noted that cl.820.211(2)(d) of Schedule 2 to the Regulations provided that an applicant who is not the holder of a substantive visa at the time of application had to satisfy criteria 3001, 3003, and 3004 unless the Minister is satisfied there are compelling reasons for not applying those criteria.

6. The applicant, through his representative, responded to the 359A Letter by a letter dated 14 December 2014.[16] The representative accepted Ms S represented to Centrelink she was single. The representative stated, however, that the applicant was Ms S’s partner, he was unemployed, and Ms S did not want to risk losing welfare support for her children. The representative also explained Mr G’s evidence as having been affected by “interpretation disaster” because the Tribunal did not provide a “Fiji Hindi” interpreter at the hearing. The representative also said that the address the applicant gave the RRT was his postal address, being the address at which the applicant lived before he moved to [B] Road, Kingswood. The representative said he did not change the address because there were a number of people living at [B] Road, Kingswood, but there was only one letter box, and it was possible that one person could take another person’s mail.

   [16] CB206-208

Tribunal’s reasons

1. The Tribunal accepted that, if it were to accept the evidence the applicant gave, it would support a finding that the applicant and Ms S had been in a de facto relationship.[17] The Tribunal found, however, that the information identified in the 359A Letter cast “serious doubt on” the applicant’s “credibility when it comes to his evidence concerning his relationship with” Ms S.[18]

   [17] CB219, [47]

   [18] CB219, [48]

2. First, the letter from Centrelink indicated Ms S was granted parenting payment single from 13 February 2012. The Tribunal considered that to be inconsistent with the applicant’s claim he was in a de facto relationship with Ms S from 25 May 2011 up to March 2013.[19] The Tribunal noted that Ms S was granted a parenting payment single from 13 February 2012, which indicates Ms S lodged a claim for that payment at that time. The Tribunal considered this to be “a very different proposition to a person who happens to be on parenting payment single and then forms relationship and then either fails or delays telling Centrelink about a change in her circumstances”.[20] The Tribunal also noted that the implication of the response to the 359A Letter is that Ms S engaged in fraud. The Tribunal, however, found that the “obvious reason that [Ms S] applied for and was granted parenting payment single from February 2012 is because at that period of time she was indeed eligible for the particular payment because she was indeed single at that point”.[21]

   [19] CB219, [49]

   [20] CB219, [50]

   [21] CB219-220, [50]

3. Second, the Tribunal found Mr G’s evidence about the history of the relationship between the applicant and Ms S was inconsistent with the applicant’s evidence. Mr G said he thought the applicant’s relationship ended in the middle of 2012 whereas the applicant claimed it ended in 2013. As to the applicant’s representative’s claim that the interpreter did not speak “Fiji Hindi”, the Tribunal noted that the question of the interpreter’s ability or competency was not raised during the hearing. The Tribunal was prepared to accept, however, that there may have been interpreting problems in relation to Mr G’s evidence.[22] In any event, the Tribunal was not prepared to place much weight on the witness’s evidence or the statutory declarations “due [to] the fact that there have been claims of interpreting problems at the hearing and that . . . the statutory declarations do not [indicate] that the contents had been explained to the declarants in their own language”.[23]

   [22] CB220, [53]

   [23] CB220, [56]

4. Third, the Tribunal referred to the information the applicant provided to the RRT. The Tribunal noted the applicant had given a residential address different from [B] Road, Kingswood, and the applicant did not mention Ms S to the RRT even though he claimed that he commenced his de facto relationship with Ms S before the day on which he appeared before the RRT.[24] The Tribunal acknowledged it was plausible that the applicant provided a postal rather than a residential address. The Tribunal found more problematic the applicant’s responses during the RRT hearing about “his current circumstances”. The Tribunal noted the applicant’s representative’s submission that the applicant assumed the questions asked by the RRT  “were pertaining for blood relatives only”, but said it was also plausible that the reason the applicant did not tell the RRT about his relationship with Ms S is that “he was not in any relationship with her”.[25]

   [24] CB220, [58]

   [25] CB221, [59]

5. The Tribunal concluded it was not satisfied the applicant was a credible witness when it came to his evidence about the history of his relationship with Ms S.[26]

   [26] CB221, [60]

Ground 1

1. The applicant relies on three grounds of review.

2. Ground 1 is as follows:

   The Tribunal fell into error when it failed to take into account all the relevant considerations at the time of the application and took into account irrelevant considerations and failed to make appropriate determinations.

   Particulars

   1.1The Tribunal determined that the Applicant and sponsor were not in de facto relationship at the time of the visa application.

   1.2The application for visa was made on 03 September 2012.

   1.3The Tribunal found that there was no de facto relationship on the basis of letter of 12 February 2012 and 18 May 2012 (MRT decision at [50]) and engagement with Centrelink.

   1.4The Tribunal fell into error in its determination as has [sic] failed to the relevant [sic] evidence of de facto relationship at the time of the visa application and extrapolated its finding rather than address this question and make determination as at the time of the application.

   1.5Failed to take into account the Sponsor’s statutory declaration (CB59) and the Sponsor’s email (CB109) in its determination that the [sic] was no de facto relationship.

   1.6The Tribunal thereby committed jurisdictional error.

3. This ground appears to make two distinct claims. The first, which is made in paragraphs 1.3 and 1.4 of the particulars, is that it was not reasonably open to the Tribunal to infer from the fact that from 13 February 2012 Ms S was granted “parenting payment single” that the applicant and Ms S were not in a de facto relationship at the time the applicant applied for the Partner visa. This claim was not developed in the applicant’s written submissions, and was not developed in oral submissions. In my opinion, it was reasonably open to the Tribunal to rely on Ms S’s applying for and being granted “parenting payment single” from February 2012 as a ground for not accepting Ms S and the applicant were in a de facto relationship at the time the applicant applied for a Partner visa.

4. The second claim is made in paragraph 1.5 of the particulars. In his written submissions, counsel for the applicant submitted Ms S’s statutory declaration and her email to the Department corroborated the applicant’s claims, and the Tribunal “failed to consider a corroborative document”.[27] In his written submissions the Minister submitted the Tribunal “plainly considered and made findings in respect of the relationship as at the date of the application”.[28] The Minister further submitted the Tribunal “specifically considered” Ms S’s email,[29] the Tribunal noted that “various material” had been provided to the Department and the Tribunal concerning the relationship,[30] and the Tribunal noted the applicant’s oral evidence was supported by “the various statutory declarations provided to the Department and the Tribunal”.[31] The parties repeated the substance of these submissions in oral address.

   [27] Applicant’s Outline of Submissions, [25]

   [28] First respondent’s Written Submissions, [17]

   [29] First respondent’s Written Submissions, [18] referring to CB214, [5]

   [30] First respondent’s Written Submissions, [18] referring to CB219

   [31] First respondent’s Written Submissions, [18] referring to CB219 at [46]

5. Before I consider the competing submissions, it would be useful to set out the Tribunal’s duties when undertaking a review of a decision of a delegate. I considered that question in some detail in the context of applications for review to the Refugee Review Tribunal (RRT) in SZTIF v Minister for Immigration & Anor,[32] but what I there said applies to reviews by the Tribunal. In my opinion, therefore, the Tribunal in the case before me, when undertaking a review of the delegate’s decision, at the very least was required to do the following:

   a)It had to “consider” the information that may have been provided to it, or which the Tribunal obtained. That is, the Tribunal was required to “view or contemplate attentively . . . examine . . . scrutinise . . . to fix the mind upon . . . [or] to reflect upon” that information.[33] Stated another way, the Tribunal was required to give “proper, genuine and realistic consideration” to the applicant’s claims.[34]

   b)The Tribunal had to consider the information, or, stated another way, it was required to engage in a process of reasoning in relation to such information, for the purpose of:

   i)identifying the “material questions of fact”; that is, identifying the facts asserted by the applicant or which are apparent from the information before it which, if accepted by the Tribunal, would satisfy the criteria for the grant of a Partner visa; and

   ii)making findings on each material question of fact it identified on the basis of evidence and other matters before it.

   [32] [2014] FCCA 945

   [33] Minister for Immigration & Multicultural Affairs v Anthonypillai [2001] FCA 274 at [71] (Heerey, Goldberg and Weinberg JJ)

   [34] Bondelmonte v Bondelmonte [2017] HCA 8, [43]

1. Also relevant is the judgment of the Full Federal Court in Minister for Immigration and Border Protection v MZYTS.[35] Speaking of the RRT, the Full Federal Court said that a “failure to consider the claim advanced by a visa applicant is plainly and uncontroversially a failure to perform the statutory task imposed on the Tribunal”;[36] and the RRT will be held not to have performed that task if “the Tribunal did not assess in any real or active way” the applicant’s claims,[37] or if the RRT did not disclose any “consciousness of the contents” of materials “as opposed to their existence”,[38] and if the RRT did not disclose “any evaluation”[39] of the materials or any “process of weighing evidence and preferring some over the other”. [40]

   [35] Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114 (Kenny, Griffiths and Mortimer JJ)

   [36] Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114 (Kenny, Griffiths and Mortimer JJ) at [62]

   [37] Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114 (Kenny, Griffiths and Mortimer JJ) at [39]

   [38] Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114 (Kenny, Griffiths and Mortimer JJ) at [41]

   [39] Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114 (Kenny, Griffiths and Mortimer JJ) at [45]

   [40] Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114 (Kenny, Griffiths and Mortimer JJ) at [50]

2. Also relevant is the judgment of Robertson J in Minister for Immigration and Citizenship v SZRKT where his Honour said:[41]

   In my opinion there is no clear distinction in each case between claims and evidence: see SHKB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 545 at [24], set out at [69] above. 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.

   [41] [2013] FCA 317; (2013) 212 FCR 99; [111]

3. The evidence that was in question in SZRKT was, like the case before me, evidence it was claimed corroborated the applicant’s claims. Robertson J said the following in relation to a Tribunal’s obligation to consider such evidence:[42]

   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. To the extent that the Minister’s submissions involved the contention that it is always the case that these matters may be dealt with without reference to the Tribunal’s reasons I do not agree.

   [42] [2013] FCA 317; (2013) 212 FCR 99; [112]

4. I now turn to the evidence the applicant submits the Tribunal in the case before me did not consider, namely, the statutory declaration of Ms S and Ms S’s email to the Department. I am satisfied the Tribunal was aware of the existence of Ms S’s statutory declaration and Ms S’s email. Being aware, however, of the existence of these items of evidence does not necessarily mean the Tribunal assessed in any real way Ms S’s evidence, or that it evaluated or weighed Ms S’s evidence. There is no suggestion the Tribunal expressly did any of these things in relation to Ms S’s evidence.

5. Mr Keevers, who appeared for the Minister, submitted I should infer the Tribunal gave no credit to Ms S’s evidence. As a matter of logic, that submission must be correct; the rejection of the evidence given by one party to a de facto relationship about the existence of that relationship necessarily implies the rejection of the evidence given by the other partner. But that, again, does not necessarily mean the Tribunal considered Ms S’s evidence in the required sense. If anything, it suggests the Tribunal did not consider Ms S’s evidence. More particularly, it suggests the Tribunal rejected Ms S’s evidence as a necessary implication from the Tribunal’s rejection of the applicant’s evidence, which the Tribunal considered and rejected without considering the corroborating evidence provided by Ms S’s statutory declaration and email to the Department.

6. In my opinion, the Tribunal did not impliedly consider the question whether it should give credit to the statements Ms S made in her statutory declaration and in her email to the Department, in the sense of giving “proper, genuine and realistic consideration” to that question. There is nothing in its reasons for decision to suggest the Tribunal considered Ms S to be a liar or a person who was willing to make false statements. If anything, the Tribunal was not prepared to find Ms S was a person who would make fraudulent claims. That is apparent in the Tribunal’s rejection of the applicant’s representative’s explanation for Ms S’s having applied to Centrelink for “parenting payment single”. One reason the Tribunal did not accept that explanation is the Tribunal considered that, if true, it would have implied Ms S “engaged in Centrelink fraud for financial reasons”.[43] The Tribunal was not prepared to find Ms S engaged in Centrelink fraud because it concluded “that the obvious reason that Ms Singh applied for and was granted parenting payment single from February 2012 is because at that period of time she was indeed eligible for the particular payment because she was indeed single at that point”. If the Tribunal was not prepared to find Ms S engaged in fraud for financial reasons, it is not apparent from its reasons why the Tribunal did not accept Ms S’s evidence as set out in her statutory declaration, or the assertion she made in her email to the Department about her having been in a de facto relationship with the applicant. That the Tribunal did not consider that question indicates the Tribunal did not consider whether Ms S’s evidence was worthy of credit, in the sense of giving “proper, genuine and realistic consideration” to that question, but that it instead assumed no credit should be given to it because it had considered and rejected the applicant’s evidence without considering Ms S’s evidence.

   [43] CB219, [50]

7. I am satisfied the Tribunal did not consider, in the requisite sense, the statements Ms S made in her statutory declaration or in her email to the Department. I am also satisfied the Tribunal made a jurisdictional error by not considering Ms S’s evidence. That evidence was cogent in the sense that, if accepted, it would have corroborated the applicant’s claim that he and Ms S had been in a de facto relationship. For that reason, Ms S’s evidence was also highly material to the applicant’s claim for a Partner visa.

8. The applicant, therefore, succeeds on ground 1.

Ground 2

1. Ground 2 of the application is as follows:

   The Tribunal misconstrued s 5CB of the Act and misdirected its enquiries.

   Particulars

   2.1The Tribunal found there was evidence such at rent receipts and lease (MRT decision at [45]).

   2.2The Tribunal rejected that at the time of the application that the applicant was in spousal relationship.

   2.3The Tribunal misconstrued s 5CB of the Act and misdirected its enquiries. There was evidence of residence and lease sufficient to establish a degree of cohabitation.

   2.4The Tribunal fell into error in finding that there was no spousal relationship.

2. The gist of this ground, as developed in the applicant’s written submissions, is that the Tribunal did not consider the intentions of both the applicant and Ms S about their living together.[44] In his oral submissions, counsel for the applicant submitted the Tribunal did not consider all of the material; and from that it should be inferred the Tribunal did not hold a correct understanding of s.5CB of the Act. The Minister, on the other hand, submits the Tribunal considered all of the circumstances of the relationship which it was required to do by reg. 1.09A(3) of the Regulations, noting that limited material had been provided to the Department and the Tribunal concerning the relationship.[45]

   [44] Applicant’s Outline of Submissions, [33]-[54]

   [45] First respondent’s Written Submissions, [21], [22]

3. I have already concluded the Tribunal did not consider cogent and material evidence that corroborated the applicant’s claims. In an important sense, that omission affected the Tribunal’s consideration of all other evidence that was before the Tribunal. For example, it is difficult to conclude the Tribunal considered in the required sense the evidence of rent payments in circumstances where, as I have found, the Tribunal did not consider Ms S’s evidence. I am not prepared to infer, however, from the Tribunal’s not having considered Ms S’s evidence, that the Tribunal misconstrued s.5CB of the Act.

4. Ground 2, therefore, fails.

Ground 3

1. Ground 3 is as follows:

   The Tribunal misconstrued legislation regarding the time [of] application and misdirected its enquiries.

   Particulars

   3.1The Sponsor has provided statutory declaration regarding the application.

   3.2The Tribunal has not properly addressed and made findings [as at] time of application.

   3.3The Tribunal fell into error in finding there was no spousal relationship.

2. In his written submissions, counsel for the applicant submitted the Tribunal failed to consider whether it should waive the Schedule 3 criteria referred to in cl.820.211(2)(d) of Schedule 2.[46] It is true the Tribunal did not consider those criteria. But, given the ground on which it decided the applicant’s claim, the Tribunal was not required to consider the criteria. The criteria required the applicant to have held a substantive visa at the time of application, unless the Minister was satisfied there are compelling reasons for not applying the criteria. The Tribunal affirmed the delegate’s decision because it was not satisfied the applicant and Ms S were in a de facto relationship within the meaning of s.5CB of the Act and, hence, the applicant did not satisfy cl.820.211(2)(a).

   [46] Applicant’s Outline of Submissions, [55]-[59]

3. Ground 3, therefore, also fails.

Ground 4

1. Ground 4 is as follows:

   The Tribunal denied Applicant natural justice and procedural fairness at the hearing.

   Particulars

   4.1The Tribunal accepted that there may have been problem with interpretation (at [53]).

   4.2The Tribunal has not complied with the request that further evidence be led.

   4.3The Tribunal was procedurally unfair in denying further hearing (at [53]).

   4.4The Tribunal committed jurisdictional error.

2. This ground arises from the request the applicant’s representative made in his letter to the Tribunal dated 14 December 2014 that there be a fresh hearing with a genuine Fijian Hindi interpreter.[47] As I have already noted, that letter was written in response to the 359A Letter. The representative requested the fresh hearing to overcome what the applicant’s representative claimed was poor interpreting of the evidence given by witnesses. The Tribunal decided there was no utility “in obtaining fresh evidence from the witnesses about the chronology of events because any future evidence may be coloured by the above history”.[48] The words “the above history” appears to have been intended by the Tribunal to refer to its summary of the evidence that had already been given by Mr G.

   [47] CB208

   [48] CB220, [57]

3. In substance, the applicant complains the Tribunal denied the applicant procedural fairness, and thus acted unreasonably, in refusing to grant the applicant a further hearing. I am not satisfied the Tribunal’s decision was one which lacked any evident and intelligible justification, or was one a reasonable decision-maker could not reasonably have made.

4. In his written submissions, counsel for the applicant submitted there was poor interpretation such that the applicant was not permitted to present his case properly.[49] The difficulty with this submission is there is no evidence there was any interpretation errors, even though the Tribunal was prepared to accept there may have been interpretation problems in relation to Mr G’s evidence.

   [49] Applicant’s Outline of Submissions, [63]

5. Ground 4, therefore, also fails.

Conclusion and disposition

1. The applicant has succeeded on one of the grounds stated in the amended application. I propose, therefore, to quash the Tribunal’s decision. I also propose to order that the Administrative Appeals Tribunal be substituted for the Tribunal as the second respondent, and that the applicant’s application for review be considered by the Administrative Appeals Tribunal according to law.

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  9 June 2017