Parvin v Minister For Immigration and Anor (No.2)

[2016] FCCA 2120

FEDERAL CIRCUIT COURT OF AUSTRALIA

PARVIN v MINISTER FOR IMMIGRATION & ANOR (No.2) [2016] FCCA 2120

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Spouse subclass 100 visa – whether the Tribunal failed to consider relevant information – whether the Tribunal failed to follow the statutory requirements – no jurisdictional error identified – further amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5F, 99, 101, 107, 109, 118, 359A, 375A, 476

Migration Regulations 1994, reg.1.15A

Applicant: NASREEN PARVIN

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2994 of 2014

Judgment of: Judge Street

Hearing date: 16 August 2016

Date of Last Submission: 6 September 2016

Delivered at: Sydney

Delivered on: 17 October 2016

REPRESENTATION

Counsel for the Applicant: Mr L Karp

Counsel for the First Respondent: Mr P Knowles

Solicitors for the First Respondent: DLA Piper

ORDERS

1. The further amended application is dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the amount of $6,825.00

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2994 of 2014

NASREEN PARVIN

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Tribunal made on 1 October 2014 affirming a decision of the delegate to cancel the first-named applicant’s Spouse subclass 100 visa. 

2. The first and second applicants are citizens of Bangladesh.  The first applicant is the mother of the second applicant who, at the time of the hearing before the Tribunal, was 16 years of age. 

3. The applicants arrived in Australia on 27 November 2007 on the form 47SP application for migration to Australia by a partner lodged on 23 March 2006.  The applicant provided an answer to question 74 which asked: 

   Did you enter into this relationship with your partner solely to gain permanent residence in Australia? 

   The applicant answered “No.”  The applicant also provided an answer on the statement on partner relationship that was provided to the Department on 11 May 2008 in support of the spouse application.  The question asked:  

   State whether you and your partner are currently living at the same address.  Provide details on how long you have lived at the same address.  List all the people who lived there with you and their relationship to you.  If you are living separately, state reasons why and whether this is a permanent arrangement.

   The applicant answered the question: 

   Me and my husband living at this address since I arrived in Australia from 27.11.07. The people who live with me in three bedroom house.

   Anwar Hossain (Husband)

   Salsabil Hossain (Daughter)

   Abul Kashem (Brother in law)

   Dilruba Afrose(Sister)

   Zarin Kashem (niece)

   Zubair Kashem (nephew)

4. The applicant also signed a declaration on the statement in partner relationship: 

   I declare that the information given in this statement is complete, correct and up to date in every detail and that I have read and understood the penalties for providing false or misleading information.

5. On 8 December 2010 and 16 May 2011, the applicant was notified of an intention to consider cancellation of the applicant’s VC visa subclass 100 granted on 12 November 2008. On 30 May 2012, a delegate decided that the applicant had not complied with s.101 of the Migration Act 1958 and decided to exercise the discretion to cancel the applicant’s visa. 

6. The delegate’s decision referred to confidential information received by the Department to the effect that the applicant and Mr Hossain, her ex-husband and sponsor, were not in a genuine married relationship. The delegate made reference to the requirements of reg.1.15A(1A)(a) for a married relationship and referred to the criteria under s.5F and found that the visa applicant was not in a genuine married relationship. The delegate found that the applicant had deliberately deceived the Department in relation to a marriage by making false statements. The delegate found that the visa holder did not comply with s.101 of subdivision C of the Act. The delegate considered whether to cancel a visa under s.109 and concluded under s.118 that there was non-compliance by the visa holder under s.101 and exercised the delegate’s discretion under s.109 to cancel the visa.

7. The certificate dated 6 June 2012 on behalf of the Secretary of the Department of Immigration and Citizenship certified in accordance with s.375A that the disclosure otherwise made to the Migration Review Tribunal of any matter or information contained in certain folios would be contrary to the public interest because they contained information provided in confidence when the provider of the information had not consented to the disclosure of the information to the review applicant.

8. The applicants applied for review on 1 June 2012 by letter dated 5 October 2012.  The applicants were invited to attend a hearing on 6 November 2012.  The primary review applicant appeared on that date, together with the applicant’s representative to give evidence and present submissions, and evidence was also adduced from two other witnesses.  On 6 November 2012, the applicants’ migration agent also provided information in relation to the alleged particulars of non-compliance and sought to advance submissions and evidence in support of the applicant being in a genuine spouse relationship, as well as addressing the issue of discretion in relation to cancellation.  A further letter dated 15 November 2012 was sent to the Tribunal by the applicants’ representative in relation to the discretionary considerations in respect of a cancellation which included a psychologist’s report, as well as having a medical certificate and a further statement.

9. On 6 March 2014, the Tribunal sent a letter to the applicants providing particulars of information relevantly as follows: 

   The Department received information from a number of different sources between October 2009 and April 2011 that you and your sponsor had not lived together in a spousal relationship at any time, and that you married your sponsor for the sole purpose of obtaining permanent residence in Australia. 

   The letter explained the relevance of the information.  Relevantly:

   This information is relevant because you have suggested in written statements and in your evidence before the Tribunal that the sole source of the confidential information was the sponsor’s current wife and former de facto spouse, Ms Dalia Hussain. You claim that the information provided was false and motivated by jealousy on her part and that you and your sponsor were in a genuine relationship until you separated some 3 months after the grant of permanent residence in November 2008.

   However, the confidential information received between October 2009 and April 2011 was provided by a significant number of different sources and was supported by other documents. If the Tribunal accepts this information as correct it may conclude that you have breach s.101(b) of the Migration Act 1958 (The Act) and that there are grounds for cancellation of your permanent residence visa

10. The letter then provided the applicant with an invitation to comment or respond to the information in writing and identified the applicants an event by a timeframe in that regard.

11. The applicants’ migration representative provided a response on 16 March 2014 attaching a statement from the review applicant asserting that the relationship was genuine. 

12. The Tribunal identified the material relating to the notice of intention to cancel the permanent visa and summarised the applicants’ evidence and arguments, as well as what occurred at the hearing on 6 November 2012, and made reference to the s.359A letter sent on 6 March 2014 and the applicants’ response to that invitation dated 1 June 2012. The response was, in fact, received by the Tribunal on 16 March 2014, but the letter was erroneously dated 1 June “2012”. It is apparent that the reference to 1 June 2014 is a reference to the letter erroneously dated 1 June 2012 that was received on 16 March 2014 and which the Tribunal took into account.

13. The Tribunal correctly identified the relevant law. The Tribunal found that the s.107 notice sent to the applicant was valid. The Tribunal found that the applicant provided incorrect answers on the 47SP application for migration to Australia by partner, and provided an incorrect answer to the statement on partner’s relationship referred to above. The Tribunal found that the s.107 notice of 16 May 2011 accurately describes the answer to question 74 on the statements made on the statement of partner relationship form.

14. The Tribunal made reference to the fact in February 2010 the Department received confidential information indicating that the visa holder and Mr Hossain had entered into a contrived marriage solely for the purpose of obtaining permanent migration.  Reference was made by the Tribunal to the information indicating that Mr Hossain had been in a long-term de facto relationship with another person, Ms Taguiam, during the period of the claimed spousal relationship and had been living with Ms Taguiam.  The Tribunal noted that the information had been received from a variety of sources and covered the years 2005 to 2009.  The Tribunal made reference to the letter sent to the applicant on 3 April 2012 by the delegate in relation to the confidential checks and the information that was provided, that the relationship entered into for the purpose of the permanent residence had ended on 29 June 2008.  That is five months prior to the grant of the subclass 100 visa. 

15. The Tribunal raised with the review applicant that the claims that she had made were false.  The Tribunal made reference to the letter sent on 6 March 2014 and summarised the applicant’s response.  The Tribunal found that the review applicant lodged an application in which she stated she had not entered into a relationship with Mr Hossain solely to gain permanent residence in Australia.  The Tribunal found that on 11 May 2008 Ms Parvin provided a statement on partner relationship in which she stated an answer to question 1 as to whether she and her partner were currently living at the same address.  The Tribunal found that on 11 May 2008 in answer to question 1 to list all the persons living at the applicant’s address, the applicant listed a number of persons.  The Tribunal noted that the review applicant denied that she provided an incorrect answer in the application form and statement of relationship.  The Tribunal found that the review applicant married Mr Hossain and claimed that they were in a genuine spousal relationship solely to gain permanent residence for herself and her daughter. 

16. The Tribunal made reference to the review applicant’s response to the s.359A letter, that she claimed a group of friends from the same ethnic background had conspired to provide information suggesting she and Mr Hossain were not in a genuine relationship at the time. The Tribunal made reference to the fact that the information provided to the Department was from various confidential sources and was to the effect that Mr Hossain and Ms Taguiam were in a de facto relationship for 20 years before they married on 20 February 2010 and that they had one son who is now over the age of 20. The Tribunal referred to the information that between 2007 and 2010, it was observed that the couple, Mr Hossain and Ms Taguiam lived together in the Kooringal Place address and had never lived separately and apart. Reference was also made by the Tribunal to the information that Mr Hossain and Ms Taguiam attended social functions together as a couple.

17. The Tribunal made reference to further information indicating that Ms Parvin, the review applicant, lived at a different address with her sister and brother from the time of her arrival in Australia in 2007, and that Mr Hossain and Ms Taguiam were regular visitors to that particular address.  The Tribunal made reference to statutory declarations asserting that the review applicant and Mr Hossain were in a genuine spouse relationship.  The Tribunal weighed the evidence and preferred the evidence which suggests that Mr Hossain was not living in a spouse relationship with Ms Parvin from 2007 to 2009.  The Tribunal observed that certain evidence was written in the hands of the declarants and set out specific observations that came from a variety of different sources. 

18. The Tribunal found that the review applicant in the application forms, as identified above, gave an incorrect answer to a question for the purposes of s.101(b) of the Act. The Tribunal also found that the information given by the review applicant in a statement of partner relationship, as referred to above, is taken to be an answer on the application form for the purpose of s.101(b) in accordance with s.99 of the Act. The Tribunal found that the review applicant filled in or completed her application form and the statement of partner relationship in such a way that incorrect answers were given or provided. The Tribunal found that the review applicant breached s.101 of the Act. It was in those circumstances that the Tribunal found there was non-compliance with s.101 in the way described in the s.107 notice.

19. The Tribunal then turned to the consideration of whether there are factors relevant to the exercise of its discretion under s.109 in respect of cancellation of the visa. Relevantly, the Tribunal found that the marriage and claimed spousal relationship between Ms Parvin and Mr Hossain was contrived solely to obtain a migration outcome for Ms Parvin and her daughter. The Tribunal found that the review applicant and her sponsor, Mr Hossain, were not living together in a spouse relationship at the time the statement on partner relationship was made. The Tribunal found that the non-compliance was deliberate, planned and intentional. The Tribunal found that the review applicant was aware of and complicit in the false nature of the claimed spouse relationship, and had misled the Department to obtain the desired migration outcome for herself and her daughter. The Tribunal found that the conduct of the review applicant was deceitful, deliberate and planned.

20. It was in these circumstances that the Tribunal decided not to exercise its discretion in respect of the non-compliance by the review applicant and was satisfied that the subclass 100 spouse visa should be cancelled and affirmed the decision of the delegate. 

21. The grounds of further amended application are as follows:

    1. The certificate, allegedly issued pursuant to s. 375A of the Migration Act, was invalid

    Particulars

    (a) The certificate did not provide any description of the information or matters required not to be disclosed, ands. 375A required it to do so.

    2. The second Respondent (the Tribunal) failed to comply with the requirements of s. 359A of the Migration Act.

    Particulars

    (a) Failure to disclose, and disclose in the manner required by that section, particulars of information which did not constitute “non-disclosable information” within the meaning of s. 359A( 4)(c) of the Migration Act and were not prevented from disclosure by a certificate purportedly issued under s. 375A of the Migration Act.

    Further Particulars

    (i) That it had been observed that the applicant's former husband and Dalia Taguiam were living together and attended social functions as a couple whilst the applicant and her former husband were allegedly in a genuine marital relationship..

    (ii) Mr Hussain and Ms Taguiam were regular visitors to the applicant's home.

    (iii) The allegedly confidential documents were written “in the hands of the declarants”, and set out specific observations.

    3. The Tribunal failed, in considering whether the applicant had given incorrect answers within the meaning of s.101, to consider the matters it was required to consider in s 5F read with reg 1.15A(3)

22. The applicants made an unsuccessful application to subpoena the material the subject of the s.375A certificate.

23. In relation to ground 1, it was argued that the reference to folios in the s.375A certificate meant that there was no valid certificate issued under that section. I reject that submission. The claim of public interest immunity was in relation to the matter or information in the folios. It would be contrary to the purpose of s.375A to identify the content of the information the subject of the public interest immunity. Whilst there may be occasions where masking of information on a particular document may be appropriate, it is apparent that the certificate in the present case was issued in respect of matter contained in the document or of information within the language of s.357A. The certificate on its face complies with s.357A.

24. It is a practical and proper method to identify matter or information by reference to particular folios. This is not a case where the certificate has been issued in a manner that inaccurately identifies the application of the protection identified under s.375A. Ground 1 fails to make out any jurisdictional error.

25. In relation to ground 2, it was submitted that the s.359A letter failed to provide clear particulars referrable to the content of three matters relevantly as follows:

    (i) That it had been observed that the applicant's former husband and Dalia Taguiam were living together and attended social functions as a couple whilst the applicant and her former husband were allegedly in a genuine marital relationship..

    (ii) Mr Hussain and Ms Taguiam were regular visitors to the applicant's home.

    (iii) The allegedly confidential documents were written “in the hands of the declarants”, and set out specific observations.

26. Section 359A identifies that it is for the Tribunal to give to the applicant, in a way the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason or part of the reasons for affirming the decision that is under review. Clear particulars do not require the giving of evidence. The matter referred to by the applicant in the three particulars referred to above was, in substance, evidence in respect of the particular that the visa applicant and the sponsor had not lived together in a spousal relationship at any time. On no view was the reference to confidential information being in the hands of particular declarants’ information that could enliven any obligation under s.359A of the Migration Act 1958. 

27. Whilst I accept that the evidence relating to particulars (i) and (ii) are matters that can be said to negate the applicant’s claim, both (i) and (ii) are matters subsumed within and clearly identified by the particulars provided to the applicant that the applicant and the sponsor had not lived together in a spousal relationship. I reject the submission that the matters identified in particular (i) and (ii) engaged any obligation under s.359A beyond the content of the s.359A letter sent on 6 March 2014.

28. I find that the Tribunal did, in the circumstances, provide clear particulars of the information that the Tribunal considered would be a reason or part of the reasons for affirming the decision that is under review, and that the applicants had an explanation that made it clear as to why the information was relevant to the review and were given an opportunity to comment and respond, consistent with s.359A.

29. I reject the submission that the information identified by Ms Moore was not “non-discoverable information” within s.5 of the Act. Further, the founding of an action for breach of confidence does not require the cause of action to be established. Objectively, there were sufficiently arguable grounds to found an action where the informants had been assured of continuing confidentiality. I reject the submission that the information in Exhibit 2 of the further provided affidavit was not “non-discoverable information”. The particulars given in the s.359A letter were sufficient.

1. The allegation of a contravention of s.359A of the Migration Act 1958 is not made out.  No jurisdictional error is made out by ground 2.

2. In relation to ground 3, the issue before the Tribunal was one of the provision of incorrect information contrary to s.101, and whether there should be a cancellation under s.109. I accept the first respondent’s submission that the visa application in the present kind was not one falling within reg.1.15A(2) of the Migration Regulations 1994. Counsel on behalf of the first respondent submitted that the Minister was not considering an application for a visa within the language of reg.1.15A(4). I reject that submission. The cancellation of the visa is, in my opinion, within the meaning of the language in reg.1.15A(4), albeit a cancellation issue in respect of that visa under s.109. However, reg.1.15A(4) makes consideration of the factors referred to in sub regulation (3) discretionary. No jurisdictional error is made out in relation to ground 3.

3. I have taken into account the supplementary submission of Mr Karp dated 23 August 2016 and response dated 6 September 2016 to Mr Knowles’ submission dated 30 August 2016. In relation to s.5F, Mr Karp of counsel contended that the answer provided in relation to whether the visa applicant entered into this relationship with your partner solely to gain permanent residence in Australia should be understood to mean a married relationship. I accept that the question being asked should be so read. The issue that then arises is whether or not, for the purposes of the Act, s.5F has work to do in relation to the deliberation of the Tribunal. There are specific provisions in the Act and regulation that identify a spouse. Section 101 and s.109 are not provisions of the Act that of themselves engage or enliven any obligation under s.5F, nor, in my opinion, is the determination of whether there has been an incorrect answer, albeit relating to whether a person is a spouse, a matter on its face a matter that can be said to be for the purposes of this Act where the issue arises in respect of ss.101 and 109.

4. I accept that the delegate did refer to s.5F and also reg.1.15A. The question in the present case was not one whether there was a married relationship. The question was one as to whether the entering into of the married relationship was solely to gain permanent residence in Australia. The question was not something that engaged application of s.5F. I note that counsel for the first respondent properly conceded that if s.5F had application, the Tribunal could not be said in the present case to have considered the cumulative requirements in accordance with s.5F(2).

5. However, for the reasons I have given, it was not necessary for the Tribunal in its deliberation as to whether there was an incorrect answer to apply s.5F of the Migration Act 1958 in that assessment.  The adverse findings by the Tribunal in relation to the incorrect answers by the applicant were open on the material before the Tribunal.  The adverse findings in relation to the applicant’s dishonesty were also open on the material before the Tribunal.  No jurisdictional error as alleged in ground 3 is made out. 

6. Further, this is a case where even if there had been a jurisdictional error in relation to the answer given to the question on the application for migration to Australia by partner, form 47SP, there is a separate finding in relation to incorrect information as to whether the applicant and partner were currently living at the same address. I find that that was an independent finding of fact that supported the conclusion of the Tribunal that there was non-compliance with s.101.

7. Further, there was an incorrect answer under s.101, being a non-compliance with that provision in the way described in the s.107 notice. It was submitted by Mr Karp on behalf of the applicant that that finding was not independent because the discretionary considerations appeared to take into account the combined false answers by the applicant. I reject that submission.

8. I accept that the onus is upon the first respondent to persuade the Court, if there was a jurisdictional error, that the granting of relief would be of no utility.  The Court has a discretion in that regard.  This is a case in which, because of the independent finding in respect of the false answer relating to the applicant and her partner living together, there is properly enlivened consideration as to whether there would be any utility in the grant of relief.  The finding that the applicant was deceitful is, in my opinion, a relevant matter also in relation to that independent finding and whether or not any relief should be granted. 

9. In the circumstances of the present case, given the independent finding relating to the client’s incorrect answer under s.101, and the finding of dishonesty, if there had been any finding of jurisdictional error in relation to s.5F being taken into account by the Tribunal, the Court would have declined to grant any relief on the basis that the Court is satisfied that it would be of no utility.

10. The further amended application is dismissed.  

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 17 October 2016