Nouv v Minister for Immigration
[2006] FMCA 1101
•4 August 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NOUV v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1101 |
| MIGRATION – Application for review of decision by the Migration Review Tribunal refusing to grant Partner (Migrant) (Class BC) visa – sponsorship – sponsor of spouse deceased – Tribunal not satisfied that cohabiting in spousal relationship – spouse requirement not satisfied – documentary evidence created for migration purposes – credibility of applicant is a question for the Tribunal –no jurisdictional error disclosed – application dismissed. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), rule 44.05, s.367 Migration Regulations 1994 (Cth.)- reg. 1.15A |
| Craig v South Australia (1995) 184 CLR 163 Minister for Immigration & Multicultural Affairs v Yusef (2001) 206 CLR 323 NAVQ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 3 Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407 WABY v RRT [2005] FCA 209 WAEE v Minister of Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184 |
| Applicant: | CHINDA NOUV |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INIGENOUS AFFAIRS |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File number: | MLG 1710 of 2005 |
| Judgment of: | Connolly FM |
| Hearing date: | 4 May 2006 |
| Date of last submission: | 4 May 2006 |
| Delivered at: | Melbourne |
| Delivered on: | 4 August 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr Gibson |
| Solicitors for the Applicant: | Cope Thornton |
| Counsel for the Respondent: | Mr Livermore |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
That the application dated 22 December 2005 be dismissed.
That the applicant pay the respondent’s costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1710 of 2005
| CHINDA NOUV |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INIGENOUS AFFAIRS |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The proceedings
This judgment stems from the application lodged by the applicant on 22 December 2005 for judicial review of the decision of the Migration Review Tribunal dated 6 December 2005 which affirmed the decision of a delegate of the Minister for Immigration and Multicultural Affairs dated 29 October 2004 that the applicant was not entitled to the grant of a Partner (Migrant) (Class BC) visa pursuant to the Migration Act 1958 (Cth.) (“The Migration Act”).
The history
The applicant is a Cambodian citizen.
On 13 August 2002 the applicant’s sponsor, Phath Soum (“The Sponsor”) made an application for sponsorship of his partner, Chinda Nouv (“The applicant’) to migrate to Australia.
The sponsor is an Australian citizen by grant. (Date of grant 19 June 1991.)
On 13 August 2002 the sponsor made an application to the Department of Immigration and Multicultural Affairs to sponsor the applicant to migrate to Australia. Both a form 40SP ‘Sponsorship for a partner to migrate to Australia’ and a form 47SP ‘Application for migration to Australia by a partner’ were filed.
On 1 December 2003 the applicant wrote the Department of Immigration & Multicultural & Indigenous Affairs and advised that the sponsor had died on 18th November 2003 in Cambodia. An extract of his death certificate was attached to the letter.
On 24 February 2004 departmental officer Ian Robertson and Thu Bannan visited the new residential address of the applicant at
5 Stephens Street Springvale, Victoria, to ascertain the living arrangements of the applicant and ‘view whether the applicant and the sponsor were cohabitating in a spousal relationship at the same address prior to his death.’
A simultaneous home visit occurred at 6 Mainehey Crescent Springvale, Victoria, in the presence of departmental officers Rebecca Cowen and John McLeod. This address was the alleged previous address of the applicant and sponsor before the applicant had taken up residence at 5 Stephens Street Springvale, Victoria.
On 1 March 2005 a telephone interview was conducted between an officer of the Department of Immigration and Multicultural Affairs and the applicant with the aid of an interpreter. During the interview the officer asked the applicant about her partner’s death. The applicant stated that the extent of her knowledge of the circumstances of the Sponsor’s death was limited. She stated that the Sponsor died on
18 October 2003 in Cambodia and then stated that according to the fax sent to her by the hospital in Cambodia where he was alleged to have received treatment, he was admitted to hospital on 19 November 2003. The applicant stated: ‘You know the Hospitals in Cambodia, they don’t keep the records when he went to the Hospital.’
On 27 September 2005 the solicitors for the applicant submitted further material supporting her claim presented in a document entitled ‘Identity Documents,’ a document entitled ‘Timeline of Various official Documents (1998-2005) and ‘Statutory Declarations and Supporting Letters’. Of the 48 documents, 39 are addressed to the Mainehey Crescent home but none are dated within alleged the period of co-habitation between the applicant and sponsor.
The supporting material also contains a psychologist’s report by
Ms. Colleen Crutchfield dated 10 August 2005. Ms. Crutchfield recants the applicant’s account of her relationship with the sponsor and the events surrounding her arrival in Australia and the sponsor’s death.
Thu Bannan, an officer the Department of Immigration and Multicultural Affairs wrote to the applicant on 29 October 2004 and informed her that her application for a spouse (Migrant) visa had been refused. In the letter the officer:
a)Stated that the purpose of the home visits were to ascertain the living arrangements of the applicant prior to the final decision on her spousal application.
b)Stated that she found no sign of the applicant’s remembrance of her husband who had just died about three months ago. The applicant failed to provide any of the deceased’s clothing and claimed that she had sent his clothes back to Cambodia or had thrown them away.
c)Accepted that the documentation including phone and utility bills provided by the applicant which included the names of both the applicant and the sponsor was evidence that both parties were residing at the same address.
d)Did not accept that the applicant and the sponsor were cohabitating as husband and wife in a genuine relationship.
e)Argued that the documentary evidence referred to in point (c) was largely created for migration purposes.
f)Found discrepancies in the dates given by the applicant for her period of residence at both 6 Mainehey Crescent Springvale and 12 Jane Lane Court Springvale.
g)Found conflicting information in relation to the statements given by the applicant concerning her places of residence in the home visit on 24 February 2004 and the statutory declaration of Chung Davy, the house owner of 12 Jane Lane Court Springvale.
h)Found improbable the applicant’s explanation that the reason she did not reside at 6 Mainehey Crescent Springvale as per her indication on the Immigration forms was that she did not have money to buy a bed or domestic items for the house.
i)Found that the applicant displayed a lack of knowledge of the sponsor’s regular travels and personal history.
j)Found that he applicant showed a lack of awareness of the illness that caused the sponsor’s death.
k)Found that the applicant’s numerous photos of the couple in Cambodia combined with more recent photos of the sponsor’s funeral, while constituting prima facie evidence of their relationship, did not of themselves, amount to persuasive evidence of the applicant and sponsor’s alleged spousal relationship.
l)Found that the applicant did not display a photo of the sponsor on the shrine in her bedroom as she had for her uncle and her grandparents.
m)Found no evidence that the applicant and sponsor had joint ownership of any major assets.
The delegate refused the grant of the Partner Class BC (Migrant) visa to the applicant and her sponsor.
The applicant made an application for review of the decision of the delegate of the Minister to the Migration Review Tribunal on
19 November 2004.
On 21 October 2005 a hearing was conducted by the Migration Review Tribunal before Tribunal Member Lennon.
On 28 October 2005 an officer of the Migration Review Tribunal sent a letter to the applicant inviting her to provide additional information in relation to her visa claim.
On 31 October 2005, Cope Thornton, solicitors for the applicant wrote to the Migration Review Tribunal and took issue with the observations made by Tribunal Member Lennon at hearing on 21 October 2005. The solicitor’s for the applicant stated that Member Lennon took the view that:
a)There was no documentary evidence of the parties residing together at 6 Mainehey Crescent Springvale during the relevant period from August to October 2003.
b)The applicant’s evidence had been historically inconsistent, and;
c)The overall evidence of a genuine relationship was weak
The solicitors for the applicant lodged a statutory declaration sworn by the applicant in order to address the claim of evidentiary inconsistency. The solicitors for the applicant then outlined detailed reasons as to why it was their belief that there was no inconsistency between the basic information that applicant gave to the Immigration officers and the information that she gave to the Tribunal. In particular it was submitted that:
a)When arriving in Australia the applicant and the sponsor did not immediately reside in the house at 6 Mainehey Crescent as the weather was cold and the applicant had few blankets and no heater. The applicant took up the offer of Davi Chung to accommodate the whole family until such time as the applicant could arrange other accommodation of her own. When interviewed by the officers for the Department on 24 February 2004 the applicant stated that she and her husband lived at the ‘other address’ until the sponsor left for a trip to Cambodia. She also stated that upon her arrival to Australia, the applicant had stayed with a relative for ‘about a month.’ The applicant contends that there is no inconsistency between the statements made on 24 February 2004 and those made to the Tribunal.
b)The applicant claims that the references made to the person ‘Vy’ in her statements of 24 February 2004 were a reference to ‘Davi’ (i.e. Davi Chung) The applicant claims that the apparent confusion or claimed inconsistency was due to the misinterpretation of the word ‘Vy’ for the word ‘Davi’.
c)The applicant’s solicitor also made reference to the evidence submitted to the Tribunal showing that the parties resided together at 6 Mainehey Crescent Springvale between August and October 2003 and made reference to the evidence submitted purporting to show that the nature of the relationship between the applicant and the sponsor was genuine.
The Migration Review Tribunal handed down its decision on
6 December 2005 and I accept that paragraphs [18] to [22] of the respondent’s Contentions contain an accurate summary of the applicant’s claims and the Tribunal findings as follows:
“18 In short summary, the applicant claimed to have been the spouse of the sponsor within the meaning of the definition and that she would have continued to be his spouse if he had not died.
19 The Tribunal examined the applicant’s claim and evidence and submissions submitted, including evidence given by the applicant at a hearing. (CB 151-156)
20 The Tribunal took into account evidence of departmental home visits of 24 February 2004 to two addresses and an interview of the applicant on 1 March 2005. (CB 151-154)
21 The Tribunal analysed the evidence and sent a letter pursuant to ss359A and 359(2) of the Act (CB 124) inviting the applicant to respond to matters that the Tribunal regarded as relevant to determining if the applicant was the spouse of the sponsor. The applicant responded by way of additional material and submission. (CB 127-145)
22 The Tribunal rejected the applicant’s claims on numerous substantive issues. It found that:
(i) There was no evidence of combined financial affairs or shared assets or liabilities (CB 167.9 – 168.1)
(ii)The evidence in relation to two asserted periods of cohabitation involved inconsistent accounts being given by the applicant. (CB 168-170)
(iii) It was not satisfied that the applicant and the sponsor had lived at premises in Mainehey Crescent. (CB 170)
(iv)The applicant and the sponsor may have socialised but did so in a relationship that fell short of a spouse relationship as defined. (CB 170.9)
(v) It was not satisfied that the parties resided together following the applicant’s arrival from Cambodia in June 2003. (CB 171)
(vi)The applicant displayed a lack of knowledge of the sponsor’s personal history, including that he had been married several times before. This tended to indicate a lack of candour that would be reasonably expected of parties to a genuine relationship. (CB 171)
(vii)The spouse application was contrived for migration purposes. (CB 171)
(viii) The parties were not in a genuine spouse relationship. (CB 171)
The applicant filed an application under rule 44.05 of The Migration Act 1958 on 22 December 2005. The applicant applied for an order that the ‘respondents show cause why a remedy should not be granted in exercise of the Court’s jurisdiction under s.367 of The Migration Act1958 in respect of the decision made by the Migration Review Tribunal on 6 December 2005. The applicant submitted the following:
‘1. The decision of the Tribunal was made in breach of an imperative duty imposed on the Tribunal or an essential pre-condition to or an inviolable limitation or restraint upon its power and its jurisdiction necessary for the existence of the satisfaction required by s 65 to grant or refuse the application and its powers to conduct a review under s 348 of the Act. The Tribunal exceeded its jurisdiction in that it misunderstood and/or misconstrued and essential criterion or criteria for the grant of the visa of which it was required to be satisfied in that
PARTICULARS
i) It misunderstood the meaning of cl 100.221 (3) (b) and (c) as to whether the visa applicant and the sponsor could be said to have been in a married relationship.
ii) The misunderstood the test for what constitutes being a spouse of a sponsoring spouse or a married relationship what would have continued if the sponsoring spouse had not died.
iii) It misunderstood the meaning of ‘married relationship’ in Regulation 1.15A’
iv) It failed to take account of a relevant consideration being the prior determination by the MRT that the visa applicant and sponsor were in a married relationship and the grant of a Partner (Provisional Class UF) subclass 309 visa on that basis.
v) it treated the consideration of ‘cohabitation’ as determinative of the application,
vi) It made a finding which was critical to the ultimate decision that the sponsor and visa application did not reside at all at the Mainehy Rd. premises when there was no evidence supporting such a finding
vii) It ignored or failed to take into account a relevant consideration under Reg 1.15A and or an element of the claim being the social aspects of the relationship in the form of the representation that the participating in his funeral celebrations, that the nature of her commitment of the sponsor in the form of the same acts.
viii) It made a finding which was critical to the ultimate decision regarding the address on the Centrelink health card when there was no evidence supporting such a finding.
ix) The reasoning of the Tribunal was irrational, illogical and unreasonable.
2. The decision of the Tribunal was made in breach of an imperative duty imposed on it or an essential pre-condition to or an inviolable limitation or restraint upon its power and its jurisdiction necessary for the existence of the satisfaction required by s 64 of the Act to grant or refuse the application and its powers to conduct a review under s348 of the Act. It exceeded its jurisdiction and/or constructively failed to exercise jurisdiction by reason of a breach of the rules of natural justice and/or a denial of procedural fairness and/or s 360 of the Act in that:
Particulars
i) It failed to invite comment on an adverse conclusion that the marriage was contrived – i.e. it was a sham or fraudulent marriage – which was not implicitly or explicitly an issue in the hearing and/or made findings that the marriage of the visa applicant and the sponsor was contrived without raising the issue with her during the hearing, or at all, and without giving her any opportunity to answer the allegation or to provide further information or evidence in relation to the allegation or issue.
The applicant filed contentions of fact and law on 6 April 2006. In particular, but not exhaustively, the contentions contained arguments concerning the alleged existence of jurisdictional error, scope of the privative clause and outlined alleged errors in the Tribunal’s reasoning.
The respondent filed contentions of fact and law on 19 April 2006.
The law
The criteria and policy relevant to the review are as follows:
a.)The criteria for a subclass 100 (spouse) visa are set out in subclause 100.221:
100.221(2) The applicant meets the requirements of this subclause if:
(a) the applicant:
(i) is the holder of a Subclass 309 (Spouse (Provisional)) visa; or
...
and
(b) the applicant is the spouse of the sponsoring spouse; and
(c) subject to subclauses (5), (6) and (7), at least 2 years have passed since the application was made.
(3) The applicant meets the requirements of this subclause if the applicant:
(a) first entered Australia as the holder of a Subclass 309 (Spouse (Provisional)) visa and either:
(i) continues to be the holder of that visa: or
…
and
(b) would meet the requirements of subclause (2) or (2A) except that, after the applicant first entered Australia as the holder of the visa mentioned in paragraph (a), the sponsoring spouse has died; and
(c) satisfies the Minister that the applicant would have continued to be the spouse of the sponsoring spouse if the sponsoring spouse had not died.
Regulation 1.15A of the Procedures Advice Manual contains the test for determining whether one person is the spouse of another person:
Spouse
(1) For the purposes of these Regulations, a person is the spouse of another person if the 2 persons are:
(a) in a married relationship, as described in subregulation (1A); or
(b) in a de facto relationship, as described in subregulation (2).
(1A) Persons are in a married relationship if:
(a) they are married to each other under a marriage that is recognised as valid for the purposes of the Act; and
(b) the Minister is satisfied that:
(i) they have a mutual commitment to a shared life as husband and wife to the exclusion of all others; and
(ii) the relationship between them is genuine and continuing; and
(iii) they:
(A) live together; or
(B) do not live separately and apart on a permanent basis.
(2) Persons are in a de facto relationship if:
(a) they:
(i) are of opposite sexes; and
(ii) are not married to each other under a marriage that is recognised as valid for the purposes of the Act; and
(iii) are not within a relationship that is a prohibited relationship for the purposes of subsection 23B (2) of the Marriage Act 1961 ; and
(b) they are of full age, that is:
(i) if either of the persons is domiciled in Australia – both of them have turned 18; or
(ii) if neither of the persons is domiciled in Australia – both of them have turned 16; and
(c) the Minister is satisfied that:
(i) they have a mutual commitment to a shared life as husband and wife to the exclusion of all others; and
(ii) the relationship between them is genuine and continuing; and
(iii) they:
(A) live together; or
(B) do not live separately and apart on a permanent basis; and
(d) subject to paragraph (e) and subregulation (2A), where either of them is an applicant for a permanent visa, a Student (Temporary) (Class TU) visa, a Partner (Provisional) (Class UF) visa, or a Partner (Temporary) (Class UK) visa – the Minister is satisfied that, for the period of 12 months immediately preceding the date of application of the party relying on the existence of the relationship:
(i) they had a mutual commitment to a shared life as husband and wife to the exclusion of all others; and
(ii) the relationship between them was genuine and continuing; and
(iii) they had:
(A) been living together; or
(B) not been living separately and apart on a permanent basis; and
(e) where either of them is an applicant for a Resolution of Status (Residence) (Class BL) or Resolution of Status (Temporary) (Class UH) visa – the Minister is satisfied (unless the applicant can establish compelling and compassionate circumstances for the grant of the visa) that, for the period of 12 months immediately preceding 13 June 1997:
(i) they had a mutual commitment to a shared life as husband and wife to the exclusion of all others; and
(ii) the relationship between them was genuine and continuing; and
(iii) they had:
(A) been living together; or
(B) not been living separately and apart on a permanent basis.
(2A) Paragraph 2 (d) does not apply if:
(a) the applicant is applying as:
(i) the spouse of a person who:
(A) is, or was, the holder of a permanent humanitarian visa; and
(B) before that permanent humanitarian visa was granted, was in a relationship with the applicant that satisfies the requirements of subparagraphs (2) (c) (i), (ii) and (iii) and of which Immigration was informed before the visa was granted; or
(ii) a member of the family unit of a person who is an applicant for a permanent humanitarian visa; or
(b) the applicant can establish compelling and compassionate circumstances for the grant of the visa.
Note permanent humanitarian visa is defined in regulation 1.03.
(3) In forming an opinion whether 2 persons are in a married relationship, or a de facto relationship, in relation to an application for:
(ad) a Partner (Migrant) (Class BC) visa; or
(ae) a Partner (Provisional) (Class UF) visa; or
(af) a Partner (Residence) (Class BS) visa; or
(ag) a Partner (Temporary) (Class UK) visa;
the Minister must have regard to all of the circumstances of the relationship, including, in particular:
(a) the financial aspects of the relationship, including:
(i) any joint ownership of real estate or other major assets; and
(ii) any joint liabilities; and
(iii) the extent of any pooling of financial resources, especially in relation to major financial commitments; and
(iv) whether one party to the relationship owes any legal obligation in respect of the other; and
(v) the basis of any sharing of day‑to‑day household expenses;
(b) the nature of the household, including:
(i) any joint responsibility for care and support of children, if any; and
(ii) the parties’ living arrangements; and
(iii) any sharing of responsibility for housework;
(c) the social aspects of the relationship, including:
(i) whether the persons represent themselves to other people as being married or in a de facto relationship with each other;
(ii) the opinion of the persons’ friends and acquaintances about the nature of the relationship; and
(iii) any basis on which the persons plan and undertake joint social activities;
(d) the nature of the persons’ commitment to each other, including:
(i) the duration of the relationship; and
(ii) the length of time during which the persons have lived together; and
(iii) the degree of companionship and emotional support that the persons draw from each other; and
(iv) whether the persons see the relationship as a long‑term one.
(4) In forming an opinion whether 2 persons are in a married relationship, or a de facto relationship, in relation to an application for a visa of a class other than a class specified in paragraph (3) (ad), (ae), (af) or (ag), the Minister may have regard to any of the factors set out in subregulation (3).
(5) If 2 persons have been living together at the same address for 6 months or longer, that fact is to be taken to be strong evidence that the relationship is genuine and continuing, but a relationship of shorter duration is not to be taken not to be genuine and continuing only for that reason.
Following the decision of the High Court in Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 a Tribunal decision would be reviewable if it were to be established that the Tribunal had exceeded its jurisdiction or constructively failed to exercise its jurisdiction. Section 474 of the Migration Act does not exclude consideration by the Court of decisions which involve a failure to exercise jurisdiction or which involve an excessive jurisdiction as such decisions are not decisions made under the Act for the purposes of
s.474. Section 474 does not apply to decisions which involve jurisdictional error whatever the scope or extent of the jurisdictional error; see for example Minister for Immigration & Multicultural Affairs v Yusef (2001) 206 CLR 323 at 351.
An administrative Tribunal exceeds its power, and thus commits a jurisdictional error, if it identifies a wrong issue, asks itself a wrong question, ignores relevant material, relies on irrelevant material, or, in some circumstances, makes erroneous findings or makes a mistaken conclusion in a way that affects the exercise, or purported exercise, of the Tribunal’s power (Craig v South Australia (1995) 184 CLR 163 per McHugh, Gummow and Hayne JJ at 179). This is not exhaustive. Those kinds of errors may well overlap (see Minister for Immigration & Multicultural Affairs v Yusef (2001) 206 CLR 323).
Conclusions & findings
The applicant contends that the Tribunal misconstrued the visa criteria by nowhere expressly referring to the time at which the applicant must satisfy the spouse requirement. It is further asserted on behalf of the applicant that the applicant satisfied the criteria at the time of the application because she was granted a provisional visa although there is no time of application criterion for the subclass 100 visa. It is further contended by the applicant that the Tribunal fell into error by not making a finding with respect to satisfying the spouse criteria as at a specific point in time.
The respondent contends that this submission misunderstands the task that the Tribunal faced in this case. I agree with the respondent’s submission and accept the respondent’s contention that it was for the Tribunal to determine whether the applicant would have satisfied the definition of spouse but for the fact that the sponsor had died; and that she would have continued to satisfy the definition had the sponsor not died. The Tribunal on the basis of the material before it determined exactly that question on the basis of the material before it. The Tribunal found the application was contrived and there was no spousal relationship for the purposes of the regulation. The principal findings of the Tribunal were credit findings adverse to the applicant. The Tribunal evaluated and rejected the applicant’s central claims as indicated in paragraph 18 hereof. The making of those findings of fact including the findings in relation to credit is a matter solely for the Tribunal (see McHugh J. in Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407 at [67]: “credibility is a matter for the Tribunal par excellence”).
The respondent further contends and I accept that the assessment of the applicant’s knowledge relating to matters including the personal circumstances of the sponsor were matters for the determination of the Tribunal and the matters it referred to are relevant. In NAVQ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 3 Hill J. stated at paragraphs [33] and [34]:
“33 Each of the various matters raised by counsel for the applicant may rightly be said to involve, as counsel said, "minor inconsistencies". Ultimately, the Tribunal had to decide whether it accepted the case which the applicant put before it. This involved the Tribunal in assessing the applicant’s credit. While the Tribunal should not be quick to reject an applicant’s credit, particularly where there are minor discrepancies, ultimately it is the Tribunal which must assess whether an applicant is telling the truth. Findings of credit involve not merely assessing minor inconsistencies. They involve also assessing credit of an applicant from matters such as body language, manner of answering questions, and the like. As the High Court itself pointed out in the context of an appeal from a single judge, an assessment of credit may involve the fact finders impressions of the witness, even thought [sic] the fact finder may make no reference to them: Abalos v Australian Postal Commission (1990) 171 CLR 167 at 179 per McHugh J with whose judgment Mason CJ, Deane, Dawson and Gaudron JJ agreed. The procedure before the Tribunal differs from that before a court because it is inquisitorial in nature. But the Tribunal in questioning has, like a court, to form a view on the credibility of an applicant in reaching a satisfaction concerning the applicant’s claim to be a refugee.
34 The Tribunal has, like a single judge, the advantage of observing the applicant under questioning. A court in an application for judicial review will be cautious indeed in finding that the Tribunal’s assessment of an applicant’s credit involved an abuse of process by the Tribunal, particularly where that assessment involves the weight which a Tribunal gives to inconsistencies in an applicant’s version of the facts. This is so notwithstanding that it would be unsafe for a Tribunal to found a finding of credit or demeanour alone especially where evidence is given through an interpreter.”
It is further contended by the applicant that jurisdictional error is demonstrated by the fact that the Tribunal “overlooked” the claim of the applicant that she returned to Cambodia for the funeral of the sponsor. It is contended that this is a critical integer of the claim in applying the definition of spouse. I agree with the respondent’s submission that there was no requirement upon the Tribunal to make reference to this matter. I am satisfied that it as merely a piece of evidence and can not be elevated to an integer of the claim. The Full Court of the Federal Court in WAEE v Minister of Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184 at [46]-[47] held:
“46 It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [87]-[97]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The Tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised `with an eye keenly attuned to error'. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.
47 The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.”
The final submission relied on by the applicant is that the Tribunal denied the applicant procedural fairness by not expressly raising with her that it intended to “discount certain affidavits filed on her behalf.” The applicant argues that she should have been invited to comment on the proposition that the declarations “were all primarily prepared with a view to assisting the applicant in establishing a matter that was not trust that she had been in a genuine married relationship.” At CB 170 at [41] the Tribunal found:
“41. Given the inconsistencies the Tribunal is not satisfied that the visa applicant and the sponsor resided at the Mainehey Cres premises.
The social aspects of the relationship
The Tribunal notes the statutory declarations and the oral evidence provided by the visa applicant’s friends at the hearing. The Tribunal accepts that the parties may have socialised and gone shopping together. However, the Tribunal finds that they did so in a relationship that fell short of a spouse relationship as defined by the regulations. The Tribunal notes that the evidence in the statutory declarations and at the hearing was minimal and considers that the declarants are primarily motivated by a concern to assist the visa applicant in her endeavours to obtain permanent residence.
The Tribunal also notes in this context that, while both parties gave the Mainehey Cres premises to Centrelink the sponsor indicated on his “Application to Continue Payment” during an absence overseas dated 28 March 2003 (provided to the Tribunal by the visa applicant’s agent on 27 September 2005) that the sponsor described his marital status as “single” whereas the visa applicant’s evidence is that they married 9 months earlier on 16 August 2002.
The nature of the persons’ commitment to each other-whether there was a mutual commitment to a shared life as husband and wife to the exclusion of all others
The visa applicant claims she met the sponsor in 2000 or 2001. The Tribunal notes that there is very little evidence to substantiate the claim that the parties were in a relationship prior to the visa applicant’s arrival in Australia in June 2003. As indicated above the Tribunal is not satisfied that the parties resided together following the visa applicant’s arrival in Australia in June 2003.
The Tribunal notes that the psychologist’s report was complied in August 2005 based on interviews in February and April 2005. The psychologist’s opinion that the visa applicant had demonstrated grief over the sponsor’s death is qualified by the observation that it is likely that the grief has been complicated by her fears she will be forced to return to Cambodia. The Tribunal accepts that the visa applicant may have experienced sadness for the time of the sponsor’s death and accepts that she and the sponsor may have been friends or become friends in the process of preparing and pursuing the visa application. However, for the reasons identified above, the Tribunal is not satisfied that the parties were in a spousal relationship and finds that the spouse application was contrived for migration purposes.
The visa applicant displayed a lock of knowledge of the sponsor’s personal history. She told the Tribunal that the sponsor did not tell her about his family and lied to her when she asked about it. She was also under the impression that he had only been married once before and initially told the Tribunal that had she known that he had been married several times before she would not have married him before saying that she would have married him even if she had been aware of his marital history. The visa applicant’s lack of knowledge about these matters tends to indicate a lack of candour that would reasonably be expected of parties to a genuine relationship. Whilst this evidence is not, in itself, determinative the outcome of the review it reinforces the Tribunal’s conclusion that the parties were not a genuine spouse relationship.”
Again I accept the respondent’s contention that the Tribunal did not make a finding of “serious wrong doing” against the declarations as alleged by the applicant. And it was open to the Tribunal to reject or not be persuaded by evidence without specifically putting the applicant on notice of these findings. It is well established that a decision maker is not obliged to expose his or her reasoning process for comment by the person affected: per French J in WABY v RRT [2005] FCA 209.
Further, I agree with the respondent that the rules of natural justice did not require the Tribunal to provide notice to the applicant of the weight to be afforded to the evidence in the declarations. I am not satisfied that there has been any denial of natural justice. The Tribunal’s decision is made after a comprehensive consideration of all relevant matters including the credibility of the applicant. Furthermore, Division 5 of the Act deals comprehensively with the duty of the Tribunal to invite comment on adverse information. The applicant does not allege any breach of the provisions contained in Division 5. S.357A of the act excludes any further application of the rules of procedural fairness in relation to such matters.
In all the circumstances I am satisfied that no jurisdictional error has been disclosed and the application should be dismissed with costs and I order accordingly.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Connolly FM
Associate: Nadia Morales
Date: 4 August 2006
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