Nguyen v Minister for Immigration and Border Protection
[2017] HCATrans 28
[2017] HCATrans 028
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Melbourne No M110 of 2016
B e t w e e n -
THI KIM NGOC NGUYEN
Plaintiff
and
MINISTER FOR IMMIGRATION AND BORDER PROTECTION
Defendant
Summons
GORDON J
TRANSCRIPT OF PROCEEDINGS
AT MELBOURNE ON WEDNESDAY, 15 FEBRUARY 2017, AT 10.06 AM
Copyright in the High Court of Australia
MR A. ALEKSOV: If it please the Court, your Honour, I appear for the plaintiff. (instructed by Williamson Leske Wardlaw Pty Ltd)
MR L.T. BROWN: If it please your Honour, I appear for the defendant. (instructed by DLA Piper Australia)
HER HONOUR: Thank you.
MR ALEKSOV: If your Honour pleases, this is an application for an extension of time under section 486A of the Migration Act seeking to challenge a decision of a delegate of the Minister in refusing to grant the plaintiff a partner visa.
HER HONOUR: Yes.
MR ALEKSOV: Could I just check, your Honour, that the Court has received our submissions and reply?
HER HONOUR: Yes. So I have the plaintiff’s submissions, I have the application for a show cause and the affidavit and your submissions, I have an outline of submissions from Mr Brown and I have a plaintiff’s reply together with a further affidavit from Wardlaw – so two affidavits.
MR ALEKSOV: Yes, thank you, your Honour. I rely on both of those affidavits. Your Honour will notice that the argument and some of the evidence is amplified in reply which in some measure gives Mr Brown little opportunity to respond to it in writing. Regrettable though that is, that is where we are. Your Honour, the test is whether it is in the interests of the administration of justice that there be an extension. Your Honour will be familiar with the decision of Justice McHugh in Marks.
HER HONOUR: Yes.
MR ALEKSOV: Of course an extension is not automatic, it involves a broad discretion. Your Honour, the relevant factors in this case are the length of the delay and the explanation for the delay. The length of delay for the purposes of section 486A is about five and a quarter months. The explanation is set out in the two Wardlaw affidavits. In summary, your Honour, there are a series of different reasons explaining parts of the delay. Your Honour will have read those materials and it is probably not that helpful for me to revisit all of them, but in short, the applicant first learns of the decision after the time that she could apply for review to the AAT.
The reason for this is that her husband – late husband – handled communications with the Department. There was a representation to him about when to expect a decision in the visa; that representation was about September 2015 and was to the extent of 18 months from that date and ultimately a decision is made much sooner than that.
HER HONOUR: Assuming for the moment, Mr Aleksov, that even if the delay was a sufficient explanation, do you not have to deal with the merits?
MR ALEKSOV: Of course, your Honour. Now, I will just rely on our written materials for the explanation.
HER HONOUR: Yes.
MR ALEKSOV: In relation to merit, there are two grounds, and the first ground concerns or is an alleged failure to comply with section 54(1) of the Act. Your Honour will be aware this provision requires the delegate to have taken into account all information in the visa application. The visa application is behind JW2 of the first Wardlaw affidavit, and at pages 22 through 24 of this visa application there is some substantive material about the nature of this relationship. Your Honour, I should just take one step back ‑ ‑ ‑
HER HONOUR: Sure.
MR ALEKSOV: ‑ ‑ ‑ which is that the application needed to satisfy a criterion which was that the relationship essentially was genuine, that they were spouses and in a married relationship which directed attention to section 5F of the Migration Act and there are mandatory relevant considerations specified in regulation 1.15A. The visa application was structured according to – in pages 22 to 24, asked the applicant to give some information which follows the contours of the regulation.
HER HONOUR: Yes.
MR ALEKSOV: The applicant did so. We accept there was not much. We accept that it was expressed in less than perfect grammar, but there were some important arguments that were made in that visa application. Those arguments were that in relation to the financial aspects of the relationship and the nature of the household, there was little evidence that the couple could advance which would usefully improve their prospects or assist their case for the visa because they lived in different countries. This was not fatal to the application because it is not necessary that a couple live together.
In relation to social aspects of the relationship and about the nature of the commitment of the parties to the relationship to one another there were some further arguments made and some evidence given, which was that the husband suffered from a medical condition which was serious and that limited his participation in social events, and that is found at about point 3 to 4 on page 23, and that the plaintiff travelled to Australia to care for him and his mother‑in‑law, about point 5 on page 23; also at point 6 on page 23. There is also a claim that she was named as his next of kin.
On page 24, again, a bit more about the details of the development of the relationship; there is a reference to a holiday in 2012; the development of the relationship through the husband accepting the sponsor’s children, them having each separate relationships prior to this one. Ultimately, your Honour, although perhaps not so detailed, the submission was made that there was good explanation for why the plaintiff and her husband did not have a strong case if attention was given to regulation 1.15A or the considerations set out there, but nevertheless, there was sufficient material from which it could be said to have been open to the delegate to be nevertheless satisfied of the criteria in section 5F of the Act.
Our submission in relation to ground 1 is the delegate did not have regard to this information. Your Honour will be aware of the usual or the standard authorities in relation to how one proves such an allegation and the principal source is the decision record and inferences to be gleaned therefrom.
We set out in writing, your Honour, why we say the inference we urge should be made. The principal argument is that first there is no mention of the arguments that I have just taken your Honour to anywhere in the decision record. Second, the delegate goes to the trouble on about page 2, point 5 of the decision record, which is behind exhibit 1 of the first Wardlaw affidavit, the delegate goes to the trouble of listing all of the information and evidence before her in making the decision and there are 14 points listed just commencing halfway down the page on page 2. It is not mentioned that there is information in the visa application.
HER HONOUR: What do I do about, the Minister takes this point I think with some force, and that is is that throughout this decision there are repeated references to having considered all of the facts and all of the material.
MR ALEKSOV: Yes, there are three points where the delegate makes that ‑ ‑ ‑
HER HONOUR: First is under “Findings” on page 1, as I read it.
MR ALEKSOV: I think the first one is just above that, your Honour, under “Information and evidence considered”.
HER HONOUR: Sorry, you are right, and then there is ‑ ‑ ‑
MR ALEKSOV: Then there is “Findings”.
HER HONOUR: Correct.
MR ALEKSOV: And then there is one more which I do not think the Minister makes but I drew attention to it in the reply.
HER HONOUR: The one that you just referred me to is “Information provided by the Applicant in Support of Application”. That has to be the visa application, does it not?
MR ALEKSOV: Maybe, it could be, your Honour. However ‑ ‑ ‑
HER HONOUR: What else could it be?
MR ALEKSOV: Well, the question is does the statement displace the inference. So if I ask ‑ ‑ ‑
HER HONOUR: No, no, I understand your argument. My question is not rhetorical.
MR ALEKSOV: No.
HER HONOUR: What else could it be? What else did they provide other than the visa application?
MR ALEKSOV: Yes – little, little. It was the visa application plus the 14 pieces of evidence that are mentioned by the delegate. However, your Honour, just because there is a statement in a decision record to a certain effect does not mean that that statement needs to be taken at face value. In my submission, your Honour, two of the three statements on which the Minister might rely suffer from obvious formulaic difficulties in the sense that they are statements which appear – which may not have been, and we would submit that your Honour could infer were not actually generated by the delegate, or if they were generated by the delegate, do not displace the inference that we urge. In relation to ‑ ‑ ‑
HER HONOUR: Are they the ones on the first page?
MR ALEKSOV: The ones on the first page and – I should just find the fourth one, your Honour. It is about page 4, point 6 under the heading “Conclusion”, that is right. The delegate starts, “I have considered all the evidence and information you have provided in relation to the matters prescribed”. So I accept, your Honour, that the language the delegate has used in those three points is broad enough to capture what was provided in the visa application. I accept that, but that does not end the Court’s task, in my submission.
The question is to look at the whole of the decision record and to read it fairly, and having regard to what, in our submission, are the operative parts at pages 2 through to halfway down 4, we submit that the inference – or the rebuttal to our inference, the rebuttal to our argument by the Minister should not be accepted.
Apart from the operative nature of – apart from the failure to mention the information in the visa application, the operative aspects of the decision record together with a failure to mention the substantive arguments at any stage in the decision record, the rather bald statements at the end of the decision also have some additional difficulties.
HER HONOUR: What about what appears at the foot of page 2 and that is that there was a request for further information or evidence but none was provided?
MR ALEKSOV: Yes, your Honour, that is true. It does not affect either party’s argument, in my respectful submission. It is apparent that the plaintiff - although it was formally correctly notified, the affidavit from Wardlaw indicates that the plaintiff was not aware of that. The first passage which the Minister points out on page 1 of the decision record says this:
I have considered the following:
. . .
·all documents and information provided by the applicant(s) in support of their application.
Now, if your Honour were minded to consider or minded to not make the inference we urge on the basis of this statement, your Honour should be aware of two difficulties with this. First, the delegate here does not seem to engage with the specific circumstances of this case. There was only one applicant and the statement “applicant(s) in support of their application” should not be understood as a reference to the particular circumstances of this case.
If it were so, the delegate would have been aware that there was only one applicant. Indeed, the operative parts of the reasons are aware that there is only one applicant and there is a tension between those operative parts and that statement. The statement under “Conclusion” which is on page 4 about point 6, has a similar difficulty in that it refers to regulations and provisions of the Act which had no operation in the circumstances of this case, a fact of which the delegate was aware.
So the conclusion refers to regulation 1.09A and section 5CB of the Migration Act which are provisions concerning de facto partners. But the delegate was clearly aware that this was a marriage situation and not a de facto situation, as is evident from page 2 at about point 3 or 4 on the page.
So, those two statements, your Honour, as indications that the delegate has had regard to the information in the visa application, in my respectful submission, should not be given much weight because they are, respectfully, formulaic. Having regard to the presence of two formulaic statements in the start and the end of the decision and not in the operative part of the decision record, the third one, the third statement under the heading “Findings”, in my respectful submission, should be approached with the same caution and, as a result, this Court should assess whether or not the delegate had regard to the information in the visa application principally by reference to the operative sections which are those which engage with the specific circumstances of this case on pages 2 through 4 of the decision record.
In my submission, it is extremely telling and should be conclusive in this case that there is no mention in those sections – the operative sections, pages 2 through 4 – of what was essentially the plaintiff’s argument. You will not see much on financial aspects or nature of the household because we have lived in different countries, and in relation to social aspects and the nature of our commitment to one another, well, that has been significantly affected by my husband’s poor health, noting that I have cared for him on a day‑to‑day basis, including travelled from my home country to be with him so that I could do so. There is simply no indication of a consciousness or an awareness of those arguments. Those arguments could have been - of course, we do not enter the merits about whether or not they would be ‑ ‑ ‑
HER HONOUR: Sounds like it though, does it not?
MR ALEKSOV: It is impossible not to mention the merits when dealing with a visa application, your Honour, it provides the subject matter for the case ‑ ‑ ‑
HER HONOUR: I know.
MR ALEKSOV: ‑ ‑ ‑ and we are acutely aware not to cavil with them. If we could, of course we would. But the short point there is it was open to succeed under section 5F even though there was clearly a weak case under the regulations, and what appears to have happened here, we say, can be inferred from the features that I have pointed out in writing and orally to your Honour, that in fact there was no consciousness, no awareness, that there was information in the visa application which bore upon this decision. Your Honour, beyond adopting, again, what I have said in writing, I do not think there is anything further I could add, unless your Honour has any questions.
HER HONOUR: Thank you very much.
MR ALEKSOV: In relation to ground 2, your Honour, this probably involves more steps of argument and we have set it out in writing I think best in the reply commencing at 27. I think everything is best done in the reply, your Honour, and we rely on the submissions in‑chief but the reply sets it out neatly.
We say that your Honour can infer – or should infer that the delegate in this case conflated the regulations, the relevant considerations under the regulations, in a way which manifests as supplanting those considerations for the actual test which was under section 5F(2). The test under section 5F(2) is in some measure quite technical, whereas the considerations under the regulations are broad and open‑ended.
In this decision record, your Honour, it is clear that the operative sections follow the structure of the regulations, and your Honour will notice that from the headings, “Financial Aspects”, “Nature of the Household”, they correspond exactly with the regulations. There is also, in our respectful submission - and I will make this good in a moment – no attempt, or no valid attempt, to correlate or relate or refer back the findings in relation to the regulations to the statutory criteria under the Act.
There are simply conclusions, factual conclusions which of themselves are unobjectionable in relation to the relevant considerations, and then there is a conclusion which is bald and uninformative, that is on page 4, which tells us nothing about which of the criteria were met and which of the criteria were not met.
The two points where the Minister might attack me about that suggestion is in relation to the nature of the household which is on page 3 at about point 6 on the page. There is a reference just before the heading “Social Aspects”:
As you and your sponsor applied on spouse grounds, you must establish that you are living together as spouses.
Now, arguably, your Honour, that connects with section 5F(2)(d) of the Act, and so the Minister might point to that and say, well, there is one example where the delegate is seeking to refer her findings under the regulations. We say that if that is the argument that the Minister has put, it opens up a reply which is that, well, that was an unlawful attempt to do so because it wholly ignores subsection (2) of section 5F(2)(d).
The other one, your Honour, is at the very end of the operative section in relation to the nature of the household – beg your pardon, “Nature of the Person’s Commitment to each other”, where the delegate says:
While I am satisfied that you and your sponsor are married, as per the provided marriage certificate, there is no evidence that you see the relationship as a long‑term one, that you draw emotional support and companionship from each other –
pausing there, that is the language of the regulation –
or that you have a commitment to a shared life together.
Now, to the extent the Minister might say, well, that is an attempt to engage with section 5F(2)(b) of the Act, we say your Honour should not make that inference and really what the delegate was just doing is making a conclusion of fact, and the reason for that is that, although it is not necessary for this Court to decide precisely what that regulation means, at least it directs attention to the need for the relationship to be heterosexual and monogamous.
I have given your Honour a reference to Ghazel in footnote 5, which is a case which went on appeal to I think it was the Full Family Court, the appellate division of the Family Court, which discusses the history of the expression adopted in section 5F(2)(b) “to the exclusion of all others” as being effectively a technical expression signifying an exclusion of polygamous relationships.
Now, if the Minister says, by this statement on page 4, point 5, just above the conclusion, the delegate is making an attempt to refer her findings back to section 5F(2)(b), it suffers from the difficulty that there is actually no attempt to engage with those aspects of section 5F(2)(b), and so the better inference is really it is just a statement of fact – unobjectionable on its own terms, not an attempt to refer back to the statutory criteria. It might be said also against us in relation to this inference that, well, the conclusion
says – on one reading of the conclusion, none of the criteria were satisfied, that is:
I have considered all the evidence and information you have provided . . . and consider that it is not sufficient to demonstrate that you are the spouse . . . of the sponsor, as defined under section 5F -
One possible reading is that you failed to satisfy all of the relevant criteria. However, that inference should not be made either because the delegate was clearly satisfied that section 5F(2)(a) was satisfied, and that is evident from page 2, point 3 of the decision record where the delegate accepts that they are married. In fact, it is also evident from the statement immediately above the conclusion, that they were validly married.
So the conclusion in the end, your Honour, is uninformative and does not tell us which of the criteria were met and which of the criteria were not met. So, in sum, when all of those points are distilled, what your Honour will see is a decision record that assesses only the regulations and then purports to make a conclusion against statutory criteria without explaining how the statutory criteria have failed to be satisfied.
The best inference from that situation, your Honour, is that the delegate supplanted the considerations under regulation 1.15A for the statutory test. That would be a failure to apply the correct test and so a jurisdictional error. Unless there are any further questions, your Honour.
HER HONOUR: Thank you very much. Mr Brown.
MR BROWN: Thank you, your Honour. Commencing with the explanation for the delay, obviously on the new material it is much better explained. We still faintly, as it were, press that it is not properly or adequately explained.
HER HONOUR: I think you may have moved past, if I may be so bold as to suggest.
MR BROWN: As your Honour pleases. My objection is getting even fainter.
HER HONOUR: Well done.
MR BROWN: Moving onto ground 1, your Honour, of course we rely on our written submissions and there are a few things we now wish to say in reply. As it came out in the exchange between your Honour and my friend, obviously contained within this statement of reasons is in express terms the fact that the decision‑maker had regard to the information that was provided with the visa application. So we, of course, fix on that, and we say your Honour should resist the urges of my friend to draw the inference because the material that was contained in the visa application cannot be described as being central to the applicant’s claim, for this reason.
There is an essential salient fact that has been passed over by my friend and that is this. The application was made on 13 November 2014 and it seems from the evidence, your Honour, that as at that point there had been a very short period of time of cohabitation in Australia before making the application. But, as your Honour drew my friend’s attention to, on 14 December an exhibit ‑ ‑ ‑
HER HONOUR: Was it 13 November or 3 November?
MR BROWN: Perhaps I am wrong with that, your Honour, early in November.
HER HONOUR: This is the application for the visa.
MR BROWN: Your Honour, it is a typo in my notes, it is 3 November, I do apologise. In any event, on 14 December, so some 13 months later, which exhibited to the first affidavit of James Wardlaw at JW9, is an email from the Department to the applicant seeking further information ‑ ‑ ‑
HER HONOUR: I put that to the plaintiff’s counsel and it was not answered.
MR BROWN: No, it was not answered, and the decision‑maker expressly refers to that, says “provided with procedural fairness letter, request to provide further evidence of your relationship, to date no response has been received”.
HER HONOUR: Yes.
MR BROWN: So, whilst as at the visa application date, 3 November, there might have been an explanation for an inadequacy of evidence of the certain features or considerations set out in the regulations, whatever those difficulties were at that time, by the time of the request for further information those difficulties had to some extent fallen away, or the passage of time had cured some of those difficulties.
So, in my submission, having regard to that chronology, by the time the delegate came to make the decision now in early 2016, there is…..utility to engage with that explanation as at some 15 or 16 months earlier. So, in a sense, that explains why there might be no mention of some of that material. The other aspect of the material, of course, is – I am delving into the merits here myself, your Honour, so ‑ ‑ ‑
HER HONOUR: I do not want – as I said to Mr Aleksov, I do not think that is necessary or appropriate.
MR BROWN: No, your Honour, I will move on from that point. That is what it is. In any event, we say that the Tribunal plainly had regard to the material – the delegate plainly had regard to the material by virtue of those statements that your Honour has been through with my friend, in addition to the fact that at about 4, point 4 of the decision record, there is a reference to the relationship having commenced in 2012. That information, so far as I can tell from information, is gleaned from the application, is gleaned from the material set out in the application. Here is a statement of our relationship and it commences in 2012.
So that would suggest, your Honour, that there had been at least some attention paid to information attached to the application. Plus, your Honour, on that same page at about 4, point 5, there is a reference to the sponsor’s health difficulties and the necessity for the applicant to have some ‑ ‑ ‑
HER HONOUR: I think, to be fair – I should have put this to Mr Aleksov really – there seemed to be a number of matters that were identified or referred to in the delegate’s decision which seemed to have been at least arguably gleaned only from what was set out in the visa application.
MR BROWN: Yes.
HER HONOUR: One is what you took me to. The other is, I think – first of all is the commencement date since 2012, and then two lines down, and this is not an exhaustive list, there is a statement of your relationship by the husband which I understand is not in there but then the evidence you have provided overall is limited, so in a sense it is dealing with – it is testing the proposition of the length and duration of the relationship both as to time and content.
MR BROWN: Yes, it is comparison of various pieces of evidence, a weighing if you like. Yes, your Honour. I will move on from this. All I say in addition about ground 1, your Honour, is my friend’s arguments do bear the hallmark of an eye finely tuned for the perception of error. There are, of course, formulaic statements in this and this is not the first decision‑maker to do so. Where there are some strict statutory criterion fleshed out by mandatory considerations set out in regulations, in my submission, it can be expected there will be some degree of a formulaic nature about the way in which a Tribunal will approach that task.
Now, of course, that does not answer the question. If everything else about the decision indicates the entire decision is formulaic and has had no regard to the actual facts of the matter, then, of course, that would lead to a certain inference, but that is not the case here, your Honour.
My friend complains about the reference to the plural “applicants”. I do not understand this, your Honour, because quite plainly on the first page of the decision record is a reference to a secondary applicant, that there were two applicants. There was a main applicant and a secondary applicant. So, to the extent that that was a mistake and revealed some misapprehension, it does not go anywhere, your Honour.
HER HONOUR: It is dealing with the sponsor, I think, was the way the application was considered properly.
MR BROWN: Possibly but I think the secondary applicant is actually the child of the applicant, your Honour. So, obviously, it is a complex situation.
HER HONOUR: I see. I understand.
MR BROWN: Yes. My friend also complains about the references to section 5CB and regulation 1.09A. These are the provisions dealing with de facto ‑ ‑ ‑
HER HONOUR: De factos, yes, I was going to ask you about that.
MR BROWN: Of course, there seems to be some acceptance that this is a marriage, and again what I would say about that, this would not be the first decision‑maker to take a belt and braces approach. So, if I am wrong – of course, this is not what the decision‑maker says, these are my words, but if I am wrong about my consideration of the marriage relationship, then I am nonetheless not satisfied in accordance with section 5CB and regulation 1.09A, or my reasoning applies to those provisions as well.
So, again, perhaps if the reasons did not otherwise reveal an engagement with the material, that might lead to an inference but that is not the case here, your Honour. So that is all I would say about ground 1, unless your Honour has anything further.
HER HONOUR: No, that is fine. Ground 2?
MR BROWN: Ground 2, it seems to me this is an argument that the delegate made an error in the interpretation and/or application of section 5F is how it actually is put. It is not quite clear, in my submission, what the plaintiff means by or how could it be an error that the delegate failed to relate her findings under the regulatory scheme to the criterion in section 5F because what is abundantly clear from the structure of the reasons is the delegate considered the matters that she was required to consider under the regulatory scheme, under regulation 1.15A, and then having done so expressed a conclusion that she was not satisfied of the requirements of the statutory provision, section 5F.
In my submission, it is difficult to see how that process of reasoning reveals any error in the application of the statutory scheme. My friend makes some specific complaints that are said to reveal that error, I suppose. First he says there is some error in the way in which the delegates approach this issue of living together or apart. So I think the delegate says “you must establish you were living together as spouses”.
In my submission, that reveals no error because that is precisely what the applicant was claiming. Whilst, of course, in the past there had been periods of time that they were apart, they were now living together in Australia, and needed to demonstrate for the purposes of the regulation and the Act that they were living together as spouses.
The issue as to a monogamous relationship and heterosexuality, it is hard to understand what the plaintiff’s complaint is. Ultimately the plaintiff seems to accept that the questions about this that were asked by the Tribunal or the Tribunal asked itself were permissible and gave rise to material that was relevant to the inquiry.
In my submission, it goes nowhere because what is evident from the reasons is the Tribunal rejected that there was – or was not satisfied there was a mutual commitment to a shared life, which if your Honour has regard to the statute, that would seem under section 5F(2)(b), a threshold before the issue of monogamy and heterosexuality is reached. So, having not been satisfied of a mutual commitment to a shared life, it was unnecessary to go to the next step and consider those questions that my friend raises.
My friend also attacks the formulaic nature of the decision as under the first ground and, of course, the decision does record in a conclusion a rolled‑up way of dealing with a lack of satisfaction and, of course, I accept it seems to be accepted that paragraph (a) of subsection (2) had been satisfied, so to that extent it may not be particularly illuminating but what is clear is simply that paragraphs (b) and (c) at the very least, and potentially (d), reading the reasons given by the decision‑maker, is that the decision‑maker was not satisfied of those paragraphs, and that state of satisfaction was open on the material.
Your Honour, unless there is anything further, that is all I want to say on ground 2.
HER HONOUR: Thank you. Mr Aleksov.
MR ALEKSOV: The first point, your Honour, in reply is about the request for further information from the delegate.
HER HONOUR: Yes.
MR ALEKSOV: Your Honour, the delegate notes that there was a request and notes that no information was supplied pursuant to it but then makes nothing of it and moves on to consider what the delegate thought was the information before her. In that circumstance, your Honour, that state of affairs just simply does not affect this case, in my respectful submission.
The most that my learned friend sought to draw from it was, well, the passage of time cured some of the difficulties that the plaintiff and her husband suffered in relation to, I think, meeting the regulations. There is no suggestion that is the way the delegate went about this decision. That is a gloss upon this decision record and so the point just does not assist the Minister, nor does it assist us.
The second point that the delegate appears to have taken some information which could only have been sourced in the visa application has a ready answer as well. The only one that my learned friend drew attention to was the commencement of the relationship in 2012. If your Honour turns to page 22 of the visa application at about point 3 on that page, that is the only place that I can see that 2012 is mentioned as the commencement of a relationship and it is a date fixed for a specific purpose. Otherwise, in the visa application, a date in 2011 is mentioned ‑ ‑ ‑
HER HONOUR: My point was more subtle than that, Mr Aleksov, and that was that if you read that statement together with the next two lines in the decision what it is doing is ascertaining a comparison between the length of time and the content and quality and length of the relationship which can only be taking into account matters referred to in the visa application. They are not found anywhere else.
MR ALEKSOV: Well, with respect, your Honour, we do not know. It says that “the evidence you have provided is limited” which is wholly consistent with a reference being just to those 14 pieces of information mentioned earlier and ‑ ‑ ‑
HER HONOUR: I do not know about that. I think you accepted in your opening submissions that the content of the visa application itself was less than it might have been.
MR ALEKSOV: I can accept that one description of it might be limited as well, yes.
HER HONOUR: Yes.
MR ALEKSOV: But a reading of that paragraph that we are focusing on is that the delegate’s reference to “the evidence you have provided overall is limited” is a reference to those 14 pieces of information that are specifically listed.
HER HONOUR: Yes.
MR ALEKSOV: The reference to “an inconsistency”, your Honour, is unexplained in the decision record. We are not sure what inconsistency has been mentioned, and so, in my submission, would not assist in rebutting the inference we urge first. That is the first way in which we respond to that. The second way in which we respond to that is your Honour will be familiar with the authorities about what having regard to requires, an active intellectual engagement. The information set out in the visa application made two substantive arguments in relation to two of the regulations, “you will not see much useful information from us because we have lived in separate countries”.
HER HONOUR: Is that not what you dealt with by way of opening submissions?
MR ALEKSOV: Yes, your Honour, it made two substantive arguments and added two additional pieces of information which are not mentioned: caring for the husband and then his next of kin in circumstances where it may be accepted there was limited information and that was the best of their case. The failure to expressly mention it, your Honour, supports the inference that we have asserted.
In relation to ground 2, the only points in reply are that we make no complaint about the delegate’s approach to the findings – not a formal complaint anyway, about living together and having a mutual commitment to a shared life together. All we say is that the proper reading of those findings, having regard to the statutory and regulatory context, is that they are just factual findings which make no effort to relate those factual findings back to the statutory criteria and so should be inferred the error that we allege in ground 2. Unless there are any other further questions,
your Honour. Your Honour mentioned there might have been some other parts of the visa application.
HER HONOUR: No, no, that is fine. Thank you, Mr Aleksov.
On 25 August 2016, the plaintiff, a citizen of Vietnam, filed an application for an order to show cause seeking writs of certiorari and mandamus and related relief in respect of a decision of a delegate of the defendant (“the Minister”) made on 11 February 2016 to refuse to grant her a Partner (Temporary) (Class UK) (Subclass 820) and a Partner (Residence) (Class BS) (Subclass 801) visa (together, “the visa”) under section 65 of the Migration Act 1958 (Cth) (“the Act”).
The application for an order to show cause was filed outside the time for the filing of the application pursuant to section 486A(2) of the Act and rules 25.06.1 and 25.07.2 of the High Court Rules 2004 (Cth) (“the Rules”). The plaintiff requires an enlargement of time.
Before I turn to the application for enlargement of time, it is necessary, I think, to set out some aspects of the history of the matter.
The plaintiff applied for the visa on 3 November 2014.
In her visa application, the plaintiff stated that:
(1)in 1995, she met her future husband in Vietnam. At that time, her future husband was married and not living in Vietnam;
(2)in 2011, when her future husband returned to Vietnam for two months, the couple were in contact;
(3)on a subsequent trip to Vietnam in February 2012, her future husband was unwell and the plaintiff cared for him. The plaintiff was a neighbour of a friend of the husband;
(4)in April 2012, the husband proposed to the plaintiff, and they began living together in Vietnam, with the plaintiff caring for the husband;
(5)in June 2012, the husband returned to Australia, and they remained in telephone contact;
(6)in August 2012, the husband returned to Vietnam and they lived together with the plaintiff’s three children;
(7)in March 2013, the husband returned to Australia;
(8)in May 2013, the plaintiff arrived in Australia on a visitor visa;
(9)on 1 July 2013 they married in Australia. Shortly after the wedding, the plaintiff returned to Vietnam, where her children remained;
(10)on 7 August 2014, the plaintiff returned to Australia to visit her husband for a short period. At that time, the plaintiff intended to return to Vietnam to be with her children and to make an offshore partner visa application. However, given the state of her husband’s health, the plaintiff decided to remain in Australia to care for him.
The plaintiff’s visa application was accompanied by a number of documents. The visa application nominated a specific email address.
On 24 November 2015 and 14 December 2015, the delegate of the Minister sent correspondence to the plaintiff at that nominated email address.
On 11 February 2016, the delegate decided to refuse to grant the visa and the plaintiff was notified of that decision by an email sent that day to that nominated email address.
In March 2016, the plaintiff provided a friend with the email address and password to check her emails. The emails of 24 November 2015, 14 December 2015 and 11 February 2016 were in the inbox.
On 4 June 2016, the plaintiff’s husband died.
On 17 June 2016, the plaintiff sought legal assistance resulting on 25 August 2016 with the plaintiff filing the application for an order to show cause in this Court.
As is accepted, in respect of the enlargement of time to commence an application for constitutional relief it must be in the interests of justice for it to do so and, in considering that application, the plaintiff’s prospects of success, including explanation for a delay, are relevant considerations.
It is convenient, I think, to consider the prospects of the plaintiff succeeding in her substantive application. The plaintiff claims that the delegate’s decision was affected by jurisdictional error. Two grounds were identified.First, the delegate failed to have regard to information submitted by the plaintiff in support of the visa application, purportedly contrary to sections 54 and 55 of the Act and, second, the delegate made a legal error in determining whether the plaintiff was the spouse of her sponsor.
Can I deal with the first ground – the alleged failure to have regard to information submitted by the plaintiff in support of the visa application contrary to sections 54 and 55 of the Act.
In my view, this ground does not raise an arguable case necessary for the grant of the relief claimed. I do not consider there is anything to suggest that further information was provided by the plaintiff under section 55 of the Act and there is nothing to suggest, in my view, that the delegate failed to have regard to information within the meaning of section 54 of the Act. That statement needs explanation.
The delegate’s decision records that she considered all documents and information, including the documents and information provided, and, in addition, the decision‑maker referred to specific evidence or information which could only be found, in my view, in aspects of the visa application itself. The delegate was not required to refer to each piece of evidence or information that was before her and the fact that she did not refer to a particular piece of evidence or information does not mean that she did not have regard to it: see, in particular, Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 345‑346 [67]‑[69]; [2001] HCA 30 and Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at 615‑618 [68]‑[73]; [2011] HCA 1.
There is a further difficulty. The plaintiff’s own visa application does not, in my view, support the plaintiff’s current contentions. In this Court, the plaintiff properly accepted that in written answers in that visa application, the plaintiff had “effectively conceded” that she could offer little evidence to show that she was her husband’s “spouse” within the meaning of section 5F of the Act. However, she contended that she had provided explanations for why that was so. The plaintiff contended that because those explanations were not referred to in the decision record, the Court should infer that the delegate did not have regard to the visa application form itself (as opposed to the supporting documents attached to it). In addition, the plaintiff criticised the delegate’s use of “formulaic statements” to the effect that the delegate had in fact considered all the evidence and information provided.
I do not accept the plaintiff’s contentions. On the plaintiff’s own case, her answers in the visa application amounted to a concession that she could not offer “strong evidence” to address the relevant visa criteria – a concession consistent with the delegate’s own assessment. Moreover, there is no arguable error disclosed in the fact that the delegate did not then address, line by line, the plaintiff’s explanations for why that might have been the case. In addition, insofar as the plaintiff criticised the use of generic phrases in the delegate’s reasons, it is sufficient to say, as the plaintiff properly conceded, that to identify the use of “formulaic” statements is not, in itself, to identify any arguable error on the part of a decision‑maker.
Can I then deal with the second ground – the delegate made a purported legal error in determining whether the plaintiff was the spouse of her sponsor.
Section 5F(2) of the Act imposes statutory criteria, or conditions, for the purpose of determining whether someone is the “spouse” of someone else for the purpose of the legislative scheme. Section 5F(3) provides, relevantly, that “[t]he regulations may make provision in relation to the determination of whether one or more of the [relevant conditions] exist”. Regulation 1.15A(3) of the Migration Regulations 1994 (Cth) (“the Regulations”) then provides a list of “matters” that must be considered for the purpose of determining whether one of more of the conditions in section 5F(2) exist. That list is not exhaustive.
The plaintiff contends that the delegate erred by conflating or merging the statutory criteria or “test” under section 5F(2) of the Act and the non‑exhaustive considerations under regulation 1.15A. Put another way, the plaintiff contends that the delegate made factual findings in relation to the matters set out in regulation 1.15A(3) and then “immediately transposed [those findings] as conclusions with respect to the s 5F(2) criteria”.
Two examples were relied upon to demonstrate “this conflation”. It is appropriate that I deal with each in turn.
First, the plaintiff submitted that the delegate did not consider (or excluded) the possibility that, for the purposes of section 5F(2)(d)(ii), it was not necessary for the plaintiff and her husband to “live together (or to have established a joint household)” provided that they “did not live separately and apart on a permanent basis, which did not require any history of cohabitation”: see SZOXP v Minister for Immigration (2015) 231 FCR 1.
In my view, this complaint does not raise an arguable case necessary for the grant of the relief claimed. The plaintiff did not contend that she and her husband did not live together. Her claim was that she and her husband lived together as spouses. The delegate accepted that the plaintiff and her husband were married. However, considering the evidence and information provided, the delegate concluded that it was not sufficient to demonstrate that the plaintiff was the spouse or de facto partner of the sponsor within the meaning of sections 5F and 5CB of the Act.
The second complaint concerned the delegate’s conclusion that there was no evidence that the plaintiff saw the relationship as a long‑term one, that the plaintiff and her husband drew emotional support and companionship from each other or that they had a commitment to a shared life together. It is the last matter – “a commitment to a shared life together” – that the plaintiff contended did not engage with any of the mandatory considerations and was inconsistent with the statutory language in section 5F(2)(b) of the Act.
The plaintiff contended that the statutory expression in section 5F(2)(b) – “have a mutual commitment to a shared life as husband and wife to the exclusion of all others” – is more precise, and aspects of this phrase should be understood as connoting technical meanings derived from matrimonial law. For example, the expression “to the exclusion of all others” is found in the definition of “marriage” in section 5(1) of the Marriage Act 1961 (Cth). In that respect, the plaintiff further contended that the statutory language “necessarily directs” attention to findings about monogamy and heterosexuality.
Again, in my view, this complaint does not raise an arguable case necessary for the grant of relief. The delegate did not refer to the precise terms of the Act. Although that might be seen as unfortunate, it is clear in the passages complained of the delegate was considering and applied the condition in section 5F(2)(b) of the Act and given the delegate’s findings, it is not apparent why the delegate was required to consider whether a commitment which was found not to exist would, had it existed, have been to the exclusion of all others. There is no identifiable error.
Under rule 25.03.3(a) of the Rules, on the hearing of an application for an order to show cause, the Court may dismiss the application. One basis for doing so is that the Court is not satisfied that the application raises an arguable case for the relief claimed. I have reviewed the plaintiff’s complaints and the delegate’s decision. There is no identifiable error. The application does not raise an arguable case necessary for the grant of the relief claimed. Neither of the arguments sought to be advanced by the plaintiff has sufficient or substantial prospects of success. The plaintiff’s challenges to the delegate’s decision do not support the relief claimed.
The plaintiff provides an explanation for the delay in applying to this Court. However, having regard to the merits of the substantive application, it is not in the interests of the administration of justice to make an order extending the time for the filing of that application. But for that fact, I would have granted the plaintiff her application for an extension of time for the filing of the application for an order to show cause.
The orders I make are as follows:
1.The plaintiff’s application for an extension of time under section 486A(2) of the Migration Act is refused.
2.The plaintiff’s application for an order to show cause filed on 25 August 2016 is dismissed.
3.The plaintiff is to pay the Minister’s costs of the application.
Anything else, Mr Brown?
MR BROWN: No, your Honour, thank you.
HER HONOUR: Mr Aleksov.
MR ALEKSOV: No, your Honour.
HER HONOUR: Thank you both.
AT 11.00 AM THE MATTER WAS CONCLUDED
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