Phan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2020] FCCA 3228
•27 November 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
Phan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 3228
| File number(s): | SYG 2195 of 2017 |
| Judgment of: | JUDGE MANOUSARIDIS |
| Date of judgment: | 27 November 2020 |
| Catchwords: | MIGRATION – Application for remedies under s.476 of the Migration Act 1958 (Cth) of decision of Administrative Appeals Tribunal (Tribunal) affirming decision not to grant Prospective Marriage (Temporary) (Class TO) visa – whether Tribunal made an irrational finding – whether finding if irrational was material – jurisdictional error found. |
| Legislation: | Federal Circuit Court Rules 2001 (Cth), Part 3, Schedule 1 Migration Act 1958 (Cth), ss.5F(1), 5F(2), 5F(3), 338(5), 338(8), 347(2)(b), 476, 477, 477A 479(a), 500 Migration Regulations 1994 (Cth), regs.1.15A, 2.08E, Schedule 2, cl.300.215, 300.216 |
| Cases cited: | CNY17 v Minister for Immigration and Border Protection [2019] HCA 50 Fattah v Minister for Home Affairs [2019] FCAFC 31 Minister for Immigration and Border Protection v SZMTA; CQZ15 v Minister for Immigration and Border Protection; BEG15 v Minister for Immigration and Border Protection [2019] HCA 3 Minister for Immigration and Citizenship v Li [2013] HCA 18 Muggeridge v Minister for Immigration and Border Protection [2017] FCAFC 200 Tran v Minister for Immigration & Anor [2019] FCCA 2859 |
| Number of paragraphs: | 41 |
| Date of last submission/s: | 18 May 2020 |
| Date of hearing: | 8 May 2020 |
| Place: | Sydney |
| Solicitor for the Applicants: | Ms E Anang of Christopher Levingston & Associates, by telephone |
| Solicitor for the First Respondent: | Mr P Knowles of Mills Oakley Lawyers, by video |
ORDERS
| SYG 2195 of 2017 | ||
| BETWEEN: | THI HUYEN PHAN First Applicant KHAC TOAN LE Second Applicant | |
| AND: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Respondent ADMINISTRATIVE AFFAIRS TRIBUNAL Second Respondent | |
ORDER MADE BY: | JUDGE MANOUSARIDIS |
DATE OF ORDER: | 27 NOVEMBER 2020 |
THE COURT ORDERS THAT:
Pursuant to s.477(2) of the Migration Act 1958 (Cth) (Act) the 35 day period prescribed by s.477(1) of the Act for making an application for relief under s.476 of the Act in relation to the decision of the second respondent (Tribunal) made on 5 June 2017 is extended to 12 July 2017.
The decision of the Tribunal made on 5 June 2017 affirming the decision of a delegate of the first respondent made on 4 August 2016 not to grant the second applicant a Prospective Marriage (Temporary) (Class TO) (delegate’s decision) visa is quashed.
The Tribunal review the delegate’s decision according to law.
Subject to order 5, the first respondent pay the first applicant’s costs set in the amount of $7,206.
The parties have liberty to apply within 21 days after the day on which these orders are pronounced to vary or discharge order 4.
REASONS FOR JUDGMENT
INTRODUCTION
Before the Court is an application for an order under s.477(2) of the Migration Act 1958 (Cth) (Act) to extend the 35 day period prescribed by s.477(1) of the Act for making an application for a remedy under s.476 of the Act in relation to a decision made by the second respondent (Tribunal) and, if such order is made, for remedies under s.476 of the Act in relation to the Tribunal’s decision. By that decision the Tribunal affirmed the decision of a delegate of the first respondent (Minister) not to grant the second applicant a Prospective Marriage (Temporary) (Class TO) visa (PM visa).
PROPER PARTIES AND EXTENSION OF TIME
The application names two persons as applicants. The second applicant (visa applicant) is the person who applied for the PM visa. He was not, however, the person who applied to the Tribunal for review of the delegate’s decision; and that is because he was not entitled to apply to the Tribunal. The person who was entitled to apply to the Tribunal for review of the delegate’s decision was the first applicant (Sponsor) because she was the sponsor in relation to the visa applicant’s application for a PM visa; and, under s.347(2)(b) of the Act, an application for review of a Part 5-reviewable decision covered by s.338(5) or (8) of the Act may only be made by a sponsor or nominator referred to in those subsections. The delegate’s decision not to grant the visa applicant a PM visa is a Part 5-reviewable decision covered by s.338(5) of the Act.
Given that s.479(a) of the Act provides that an applicant for review of a migration decision that is made on review under Part 5 or Part 7 or s.500 of the Act resulting from an application under s.477 or s.477A of the Act must be “the applicant in the review by the relevant Tribunal”, it follows that the visa applicant has no standing to make the application under s.477(2) of the Act for an extension of time. The Minister, however, does not oppose my making an order extending time under s.477(2) of the Act in relation to the Sponsor; and I am satisfied that it is necessary in the interests of the administration of justice that an order be made under s.477(2) of the Act extending the time by which the Sponsor may apply to this Court in relation to the Tribunal’s decision to 12 July 2017, being the day on which the applicants commenced this proceeding.
BACKGROUND
The visa applicant, who is a citizen of Vietnam, applied for the PM visa on 30 June 2015. To have been entitled to the grant of the PM visa the visa applicant had to meet the requirements of Subclass 300 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations).[1] Relevant to the issues that arise in this application are the requirements of cl.300.215 and cl.300.216. Clause 300.215 requires that the “parties genuinely intend to marry”, and that “the marriage is intended by the parties to take place within the visa period”. Clause 300.216 required that the Minister “is satisfied that the parties genuinely intend to live together as spouses”.
[1] Although for ease of expression I will refer to the provisions of the Act and Regulations in the present tense, it is the provisions of the Act and Regulations as they applied at the time the visa applicant lodged his application for the PM visa that are relevant.
Subsection 5F(1) of the Act provides that a person is the “spouse” of another person if, under s.5F(2) of the Act, the two persons are in a “married relationship”. Under s.5F(2) of the Act persons are in a “married relationship” if:
(a)they are married to each other under a marriage that is valid for the purposes of this Act; and
(b)they have a mutual commitment to a shared life as husband and wife to the exclusion of all others; and
(c)the relationship between them is genuine and continuing; and
(d)they live together, or do not live separately and apart on a permanent basis.
Subsection 5F(3) of the Act provides that the Regulations “may make provision in relation to the determination of whether one or more of the conditions in paragraphs (2)(a), (b), (c) and (d) exist”. The Regulations have made provision, and this is to be found in reg.1.15A. Subregulation 1.15A(2) provides that, when considering an application for the classes of visa identified in that subregulation, the Minister must consider all the circumstances of the relationship, including the matters set out in reg.1.15A(3) of the Regulations. The PM visa is not one of the classes of visa identified in reg.1.15A(2) of the Regulations. Subregulation 1.15A(4), however, provides that if the Minister is considering an application for a visa other than a class mentioned in reg.1.15A(2), the Minister may consider any of the circumstances mentioned in reg.1.15A(3) of the Regulations. Those circumstances are:
(a)the financial aspects of the relationship, including any joint ownership of real estate or other major assets; any joint liabilities; the extent of any pooling of financial resources, especially in relation to major financial commitments; whether one person in the relationship owes any legal obligation in respect of the other; the basis of any sharing of day-to-day household expenses; and
(b)the nature of the household, including any joint responsibility for the care and support of children; the living arrangements of the persons; and any sharing of the responsibility for housework; and
(c)the social aspects of the relationship, including whether the persons represent themselves to other people as being married to each other; the opinion of the persons’ friends and acquaintances about the nature of the relationship; any basis on which the persons plan and undertake joint social activities; and
(d)the nature of the persons’ commitment to each other, including the duration of the relationship; the length of time during which the persons have lived together; the degree of companionship and emotional support that the persons draw from each other; and whether the persons see the relationship as a long-term one.
According to a document headed “Statement on Relationship” dated 26 June 2015 that formed part of the application for the PM visa:[2]
(a)The visa applicant was married in 1991, he had a child from that marriage in 1994, but in 1995 he divorced.
(b)The Sponsor was born in 1980 in Vietnam, and she came to Australia in 1996. The Sponsor has four daughters, one born in 2005, one in 2007, one in 2010, and one on “10/10/2015”. The fathers of the four children are four different men with each of whom the Sponsor had a one night stand after which they left the Sponsor; and the Sponsor does not know their names or where they currently are.
(c)The Sponsor visited Vietnam in March 2011, and she met the visa applicant with the help of the visa applicant’s younger sister. The visa applicant and Sponsor began a relationship after “talking [sic] each other in the next few weeks”.
(d)The visa applicant and Sponsor continued their relationship after the Sponsor returned to Australia. The visa applicant and Sponsor decided to be husband and wife, and they held an engagement ceremony in 2013 at Hai Phong.
(e)The visa applicant and Sponsor plan that when the visa applicant returns to Australia they “will live with [the visa applicant’s] parents” and will help his younger siblings with work on the farm.
[2] CB37
The visa applicant supported his application with the following additional evidence:
(a)Ten receipts of money transfers totalling $1,560 from the Sponsor to the visa applicant from June 2013 to December 2015.[3]
(b)Photographs of the visa applicant and Sponsor in some social settings with family.[4]
(c)Photographs of what the visa applicant and the Sponsor claimed was their wedding ceremony.[5]
(d)Statutory declarations from family members and friends.[6]
[3] CB142
[4] CB143
[5] CB143
[6] CB143
At an interview before the delegate, the visa applicant and Sponsor said the Sponsor travelled to Vietnam in March 2011, March 2013, August 2014, and March 2015. Although the visa applicant said he and the Sponsor intended to marry when he arrives in Australia, the Sponsor and visa applicant were unable to provide a date when their marriage would be held, or the venue at which they intended to hold their wedding.[7] According to the delegate’s decision record,[8] while the visa applicant said the Sponsor had travelled to Vietnam four times since they met in 2011, he did not know exactly when the Sponsor travelled to or departed from Vietnam; the visa applicant did not know where the Sponsor was living, or whether the Sponsor owns or rents the house in which she lives; the visa applicant says he met the Sponsor through his sister, but he did not know how the Sponsor got to know the visa applicant’s sister or family; the visa applicant did not know whether his parents had met the Sponsor; the visa applicant did not know any of the Sponsor’s friends; the visa applicant had no knowledge of the Sponsor’s “previous relationship”; and the visa applicant did not know who was the father of the Sponsor’s fourth child that was born in October 2015.
[7] CB140-141
[8] CB144
BEFORE THE TRIBUNAL
In support of her application for review the Sponsor provided a statement dated 1 May 2017 (Sponsor Statement).[9] The Sponsor said:
(a)she had given birth to four daughters, one in 2005, one in 2007, one in 2010, and one “recently” in 2015; and that “[t]he fathers of these children are four different men and all are men who I had a one night stand with or had contact for a few days then they left and I do not know their names or where they currently are”;
(b)she was devastated at the delegate’s rejection of the application for the PM visa; her life on the farm with her parents is a lonely one;
(c)she has been doing pretty well financially as a farmer and business owner, sending financial support to the visa applicant;
(d)she and the visa applicant intend that when the visa applicant comes to Australia she and the visa applicant will live with the visa applicant’s parents and help his younger siblings on the farm;
(e)she and the visa applicant had “tied the knots [sic] via a traditional ceremony and a home wedding reception in Vietnam on 15 March 2017”; and
(f)she and the visa applicant continue to communicate by telephone.
[9] CB327
Relevant to the ground on which the visa applicant relies is that part of the Sponsor Statement in which the Sponsor says she “would like to clarify on the circumstances of the birth” of her fourth daughter. The Sponsor said that in around Christmas time in 2014 and “New Year 2015”, while keeping regular contact with the visa applicant the Sponsor was “so lonely and stressed due to the long wait of the result of my prospective marriage visa application and other worrying matters on my farm” that she frequented the local hotel. The Sponsor met an Asian gentleman who introduced himself as a visitor from South Korea. The Sponsor found him very friendly and approachable. The Sponsor does not think she was drunk after a couple of beers, but after waking up the next morning the Sponsor was not sure whether she had slept with the Korean stranger who had disappeared without saying goodbye or “leaving any traces”. Sometime later the Sponsor found out she was pregnant. The Sponsor told the visa applicant about this later, and only after she was about to give birth. The visa applicant was very understanding; he suggested the Sponsor’s beers “would have been spiked”. The Sponsor continued (errors in original):
I dared not asking for any advice nor reporting this to Police as I have been very ashamed of myself. I believe that I have to try to avoid more trouble with legal matters and more very possible humiliating experiences. Besides, I do not know the father of my other daughters very well either. They all are product of my one night stand! I just want to forget about this and move on with [the visa applicant’s] forgiveness and understanding. I thought that generally people still think that the child is ours, [the visa applicant’s] and me.
The Tribunal asked the Sponsor questions about her pregnancy at the time she was engaged to the visa applicant:[10]
MEMBER: When you lodged the visa application, it was June – or your fiancé lodged the visa application, it was June 2015. In lodging that you are saying or your fiancé is saying that you intend to marry.
SPONSOR: Yes.
MEMBER: And a concern I have is that at the time you were doing that you were pregnant with a child from another person. I have read what you have had to say about that, but it seems to me you are saying that all four children were born in similar circumstances; have I understood that correctly?
SPONSOR: Yes.
MEMBER: And that may suggest to me that it’s not compatible with you intending to marry [the visa applicant]. I understand you had told him about it and he was supportive of you. It’s not just that fact, it’s also a factor that . . . .
[10] Exhibit A, T16.30
TRIBUNAL’S REASONS
The Tribunal found or accepted that the Sponsor met the visa applicant through his sister in Vietnam in March 2011; the Sponsor had travelled to Vietnam five times from March 2011 to March 2017; in August 2015, when the visa applicant applied for a PM visa, the Sponsor had three children and was pregnant with her fourth; the Sponsor received a Centrelink pension; she lived near the visa applicant’s parents for whom she occasionally did some work on their farm; and the visa applicant lives in Vietnam, is divorced, and has one child from that marriage.[11] The Tribunal also accepted the visa applicant and Sponsor went through a wedding ceremony in Vietnam in March 2017, but it found that the ceremony is not recognised in Vietnam and, for that reason, is not a marriage that is valid for the purpose of the Act.[12] That meant the Tribunal was required to consider the visa applicant by reference to Subclass 300 of Schedule 2 of the Regulations, rather than having to follow the procedure provided for by reg.2.08E of the Regulations.[13]
[11] CB449, [14]-[17]
[12] CB449, [9]-[10]
[13] CB449, [11]
The Tribunal noted that, when considering whether the criteria prescribed by Subclass 300 of Schedule 2 have been met, it would not be appropriate for the Tribunal to consider whether the parties are spouses at the time of application or time of decision. The Tribunal further noted, however, that “an investigation of the parties’ intentions with regard to the definition of spouse in legislation may assist in determining the parties’ aspirations”, although the Tribunal said it “does not place undue weight on the provisions as it is the ‘intention’ which is relevant for this visa subclass”.[14]
[14] CB449, [13]
The Tribunal considered the evidence before it by reference to the matters identified in reg.1.15A(3) of the Regulations. The Tribunal found that the financial aspects of the parties’ relationship, and the “very limited” time the visa applicant and Sponsor had spent together, are “not determinative”.[15] As for social recognition of the relationship, the Tribunal accepted the visa applicant’s parents support the relationship, and that the Sponsor’s parents, who live in Victoria, visited the visa applicant’s parents in December 2016; and that this indicates some level of support.[16] The Tribunal accepted that representatives of both sides of the family attended the wedding ceremony although “[s]ignificantly, the review applicants [sic] [that is, Sponsor’s] parents and siblings did not attend the wedding”.[17] The Tribunal also found there is little other evidence about the relationship.[18]
[15] CB450, [19], [20]
[16] CB450, [21]
[17] CB450, [22]
[18] CB450, [23]
The Tribunal then turned to the nature of the parties’ commitment; and it found it was not satisfied there is a genuine mutual commitment to live together as husband and wife to the exclusion of all others.[19] The Tribunal said its lack of satisfaction “derives from a number of factors in combination”, these being the following: [20]
(a)The Tribunal considered “[o]f significance” that the Sponsor was pregnant with her fourth child on 30 June 2015 when the visa applicant lodged the application for a PM visa. The Tribunal noted the child was born in October 2015; the Sponsor “claims that her drink was spiked”, and she does not know the father of her child; and that in the Sponsor Statement the visa applicant stated that the “fathers of these children are four different men and all are men who I had a one night stand with or had contact for a few days then they left and I do not know their names or where they currently are”. The Tribunal set out what the Sponsor said in the Sponsor Statement about the circumstances in which she believes she conceived her fourth child, and the visa applicant’s suggestion that the Sponsor’s drinks might have been spiked, after which the Tribunal said: “In effect [the Sponsor] was suggesting that this occurred each time her children were conceived”.[21]
(b)The visa applicant knew very little about the Sponsor at the interview before the delegate.[22]
(c)There is a strong motivation for the visa applicant to live in Australia because his parents and four siblings live in Australia. That motivation is evidenced by the visa applicant’s previous application for a subclass BO115 visa to permanently reside in Australia which was refused in February 2007.[23]
(d)The Tribunal acknowledged the visa applicant’s mother appears to love the Sponsor’s children, and that she visits the children two to three times a week. The Tribunal also accepted that the visa applicant’s mother or parents pay the Sponsor a monthly sum of around $1,700-$1,800. The Tribunal found this might indicate a genuine relationship and support for the visa applicant’s mother’s future daughter in law; but it also allows the Sponsor to send money to the visa applicant. Given the Sponsor is on a Centrelink pension, the Tribunal was not satisfied that funds would allow the Sponsor to contribute much to the visa applicant without additional financial support.[24]
(e)In answer to the Tribunal’s question about where he would live when he would come to Australia the visa applicant said he would live with his parents and brother. After the hearing the Tribunal was provided with information which attempted to explain that the visa applicant’s answer was not intended to exclude the Sponsor.[25]
[19] CB450, [24]
[20] CB450, [24]
[21] CB450, [24], first dot point
[22] CB450, [24], second dot point
[23] CB451, [24], third dot point
[24] CB451, [24], fourth dot point
[25] CB451, [24], fifth dot point
The Tribunal concluded it was not satisfied “the parties genuinely intend to live together as spouses, and therefore cl.300.216 is not met”. In so concluding the Tribunal noted:[26]
The Tribunal makes clear that the fact of the [Sponsor’s] pregnancy, of itself, does not preclude a positive outcome but the explanation given, in light of the similar circumstances of the three previous pregnancies, does not allay its concerns there is not [sic] commitment to an exclusive spousal relationship by the parties.
[26] CB451-452, [27]
GROUND OF APPLICATION
The applicants rely on the following ground contained in the amended application (errors and emphasis in original):
The Second Respondent fell into jurisdictional error by making an illogical and irrational finding of fact to the effect that the First Applicant’s explanation of the four pregnancies could not allay the Tribunal’s concerns arising in the context of Section 5(F) of the Migration Act 1958 and Clause 300.216 of the Migration Regulations 1994.
Particulars
(a)The Second Respondent says at Paragraph 27 of the decision record as follows: (paragraph 27, CB451-452)
‘At the time of application, the Tribunal is not satisfied that the parties genuinely intend to live together as spouses, and therefore clause 300.216 is not met. The Tribunal makes clear that the fact of the review applicant’s pregnancy, of itself, does not preclude a positive outcome but the explanation given, in light of the similar circumstances of the three previous pregnancies, does not allay its concerns that there is not commitment to an exclusive spousal relationship by the parties” (emphasis added)
(b)The incorrect characterization of the evidence to the effect that the First Applicant was either the victim of serial drink spiking or in the alternative was engaged in conduct post the “engagement” and lodgement of the Application (April 2013 and 30 June 2015 respectively) [paragraph 24, first bullet point, CB450] and thus constituted a traversal of the requirement for “exclusivity” expressed as follows:
“Clause 300.216 requires that at the time of application “the parties genuinely intend to live together as spouses. Spouse is defined in s5F of the Act and provides that a person is the spouse of another where those two people are in a married relationship. Persons in a married relationship must be married to each other under a marriage that is recognised as valid for the purposes of the Act: there must be a mutual commitment to a shared life as husband and wife to the exclusion of all others, the relationship must be genuine and continuing, and the couple must live together, or live separately and apart on a permanent basis: S5F(2)(a)-(d) [paragraph 12, CB449].
Sponsor’s submissions
The applicants, in their written submissions, direct attention to the Tribunal’s statement that “[i]n effect [the Sponsor] was suggesting that this occurred each time her children were conceived”.[27] The applicants submit this “conclusion was not reasonably available to the [Tribunal] on the evidence before it”.[28] The applicants submit that a question of materiality arises in the face of the “alleged incorrect characterization [sic] of the evidence to the effect that the first Applicant [the Sponsor] was either the victim of serial drink spiking or in the alternative was engaged in conduct post the “engagement” and lodgement of the Application”.[29] The applicants make two submissions in relation to materiality. The first is the Tribunal “fell into error in a material way by reason of its incorrect finding to the effect that the [Sponsor] had traversed the statutory requirement for “exclusivity” by having engaged in sexual intercourse with an unknown person” in circumstances where the “exact circumstances are not known and were not before the” Tribunal.[30] The second submission is that the Tribunal fell into jurisdictional error “by reason of its misapprehension of the evidence before it in its conclusion to the effect that it did not believe the [Sponsor’s] explanation”.[31]
[27] CB450, [24] first dot point
[28] Applicants Written Outline of Submissions, [34]
[29] Applicants Written Outline of Submissions, [35]
[30] Applicants Written Outline of Submissions, [37]
[31] Applicants Written Outline of Submissions, [40]
In her oral submissions Ms Anang, who appeared for the applicants, submitted the Tribunal misunderstood the Sponsor’s evidence to be that her drinks were spiked in all of the four one night stands that resulted in the Sponsor becoming pregnant. Ms Anang further submitted this was material because the Tribunal relied on its erroneous understanding of the Sponsor’s evidence in not being satisfied the explanation the Sponsor gave of the fourth pregnancy allayed the Tribunal’s concerns.
In his written submissions, the Minister submits the Tribunal did not mischaracterise the Sponsor’s evidence. The Minister further submits that even if the Tribunal mischaracterised the Sponsor’s evidence, that does not necessarily mean the Tribunal’s decision is affected by jurisdictional error. The Minister refers to the following passage from the judgment of the Full Federal Court in Muggeridge v Minister for Immigration and Border Protection:[32]
[N]evertheless, as Wigney J said (with respect correctly) in Minister for Immigration and Border Protection v SZUXN [2016] FCA 516; (2016) 69 AAR 210 (at [55]):
… allegations of illogical or irrational reasoning or findings of fact must be considered against the framework of the inquiry being whether or not there has been jurisdictional error on the part of the Tribunal: SZRKT at 137 [148]. The overarching question is whether the Tribunal’s decision was affected by jurisdictional error: SZRKT at [151]. Even if an aspect of reasoning, or a particular factual finding, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reasoning or finding of fact was immaterial, or not critical to, the ultimate conclusion or end result: Minister for Immigration and Citizenship v SZOCT (2010) 189 FCR 577 at [83]-[84] (Nicholas J); SZNKO v Minister for Immigration and Citizenship (2013) 140 ALD 78 at [113]. Where the impugned finding is but one of a number of findings that independently may have led to the Tribunal’s ultimate conclusion, jurisdictional error will generally not be made out: SZRLQ v Minister for Immigration and Citizenship (2013) 135 ALD 276 at [66]; SZWCO at [64]-[67].
[32] Muggeridge v Minister for Immigration and Border Protection [2017] FCAFC 200, at [35(6)]
The Minister submits that, if the Tribunal did mischaracterise the Sponsor’s evidence, the error would not have been critical or even material to the ultimate conclusion; and that is because the finding in relation to the Sponsor’s pregnancies was but one of a range of matters on which the Tribunal relied in concluding it was not satisfied the parties were genuinely committed to an exclusive spousal relationship.
Questions arising
Two principal questions arise on the parties’ competing submissions: did the Tribunal misunderstand the Sponsor’s evidence? If so, was the Tribunal’s misunderstanding of such nature and significance that its decision is liable to be set aside for jurisdictional error?
The particulars to the ground, however, make an alternative claim. If the Tribunal did not proceed on the view that the Sponsor’s first three pregnancies arose in circumstances where her drinks had been spiked, the Tribunal proceeded on the view that the circumstances in which the Sponsor had become pregnant with her fourth child was not consistent with the Sponsor and visa applicant having an intention to live together as spouses (relevant intention), or was not consistent with their having a commitment to an exclusive spousal relationship (relevant commitment), and this view was irrational. That, then, gives rise to two further questions; did the Tribunal proceed on the view that the Sponsor’s becoming pregnant was not consistent with having the relevant intention or the relevant commitment? If so, was that view irrational?
Before I consider these questions, it will be necessary to consider the elements of paragraph 27 of the Tribunal’s reasons, being the paragraph the applicants submit manifest irrationality.
Elements of paragraph 27
Paragraph 27 of the Tribunal’s reasons comprises the following elements:
(a)First, the Tribunal states its conclusion, namely, it is not satisfied the Sponsor and visa applicant have the relevant intention.
(b)Second, the Tribunal states that the Sponsor’s pregnancy did not preclude a positive outcome. In other words, the Tribunal recognises that the Sponsor’s (fourth) pregnancy did not by itself necessarily mean that the Sponsor and visa applicant do not have the relevant intention. Given the third element I identify in the next subparagraph, however, the Tribunal appears to mean that the Sponsor’s fourth pregnancy does not necessarily mean that the Sponsor and visa applicant do not have the relevant intention, provided a reasonable explanation is given in relation to the circumstances in which the Sponsor became pregnant with her fourth child.
(c)Third, the explanation the Sponsor gave of the circumstances in which she became pregnant with her fourth child did not allay the Tribunal’s concerns that the parties do not have the relevant commitment.
(d)Fourth, that which prevented the Tribunal’s concerns being allayed about the parties having the relevant commitment is what the Tribunal found to be “the similar circumstances of the three previous pregnancies”.
The following observations may be made in relation to these elements.
(a)First, the Tribunal does not appear to have rejected the Sponsor’s explanation of the circumstances in which the Sponsor became pregnant in relation to any of her four children. A fair reading of the Tribunal’s reasons is that the Tribunal did accept the Sponsor’s evidence; and I so find.
(b)Second, the Tribunal does not explain why it considered the Sponsor’s fourth pregnancy in the circumstances in which the Sponsor said it occurred is a matter that weighed against the Sponsor and visa applicant having the relevant intention or the relevant commitment.
(c)Third, the Tribunal does not identify what it considered to be the circumstances in which the Sponsor became pregnant with her three other children. It may be inferred the Tribunal had in mind the Sponsor’s evidence that each of the first three pregnancies were the product of a one night stand as a result of her frequenting a particular hotel.
(d)Fourth, the Tribunal does not identify what it is about the circumstances of the Sponsor’s first three pregnancies that led the Tribunal to conclude that the Sponsor’s explanation of the circumstances in which she became pregnant with her fourth child did not allay the Tribunal’s concerns about the parties having the relevant intention and the relevant commitment.
Did the Tribunal misunderstand or mischaracterise the Sponsor’s evidence?
The Minister submits it is unreasonable to read the Tribunal’s statement that “[i]n effect [the Sponsor] was suggesting that this occurred each time her children were conceived” as meaning that the Sponsor claimed her drinks were spiked on each of the occasions she became pregnant with her first three children. The Minister relies on the Tribunal using the expression “similar circumstances” in paragraph 27 of its reasons, and the form of the question the Tribunal asked the visa applicant at the hearing, namely, “you are saying that all four children were born in similar circumstances; have I understood that correctly”, to which the Sponsor answered “Yes”.
The question is to what the Tribunal intended to refer by the words “this occurred” in the expression “[i]n effect [the Sponsor] was suggesting that this occurred each time her children were conceived”.[33] The answer is to be determined by the immediate context of the Tribunal’s reasons in which this expression is found. The expression came after the Tribunal set out what the Sponsor said in the Sponsor Statement occurred on the night she conceived her fourth child. The Tribunal quoted from the Sponsor Statement that “the fathers of these children are four different men and all are men who I had a one night stand with or had contact for a few days then they left and I do not know their names or where they currently are”; and the Tribunal then set out what the Sponsor said about the circumstances in which she conceived her fourth child, this being that at around Christmas 2014 and “New Year 2015” she was lonely and stressed due to the long wait for approval of the PM visa, and she often frequented a particular hotel to have a couple of beers after work on the weekends by herself. In that context, the Tribunal intended “this occurred” to be a reference to what the Sponsor, not the visa applicant, said occurred on the occasion on which she became pregnant with her fourth child, namely, that she went to the hotel she often frequented to have a couple of beers. Thus, what the Tribunal intended to find is that the Sponsor became pregnant with each of her four children in circumstances where she went to the hotel she often frequented to have a couple of beers. The Tribunal did not intend to find that the Sponsor’s drinks were spiked on each of the occasions she became pregnant with her four children.
[33] CB450, [24], first dot point
It is true the Tribunal referred to the Sponsor having claimed that, on the occasion of her conceiving her fourth child, her drink had been spiked. The Tribunal, however, only records a claim which it was reasonably open to it to have understood the visa applicant and Sponsor made, being a claim based on the Sponsor having repeated what the visa applicant speculated or rationalised might have accounted for the Sponsor’s becoming pregnant with her fourth child. The Tribunal itself concentrated on what the Sponsor said in the Sponsor Statement. The Sponsor did not say that her drinks had been spiked.
Pregnancy not consistent with the relevant intention or the relevant commitment?
It is clear the Tribunal was of the view that the Sponsor’s fourth pregnancy was not consistent with the parties having the relevant intention or the relevant commitment. The first of the matters on which the Tribunal relied for not being satisfied the visa applicant and the Sponsor have the relevant commitment, and which it characterised as “[o]f significance”, is the Sponsor and visa applicant having been engaged since April 2013, and the visa applicant lodging his application for a PM visa on 30 June 2015 when the Sponsor was pregnant with her fourth child.[34] Second, there is the effect of what the Tribunal said in paragraph 27 of its reasons; its concerns about the parties not having the relevant intention or the relevant commitment were not allayed by the explanation the Sponsor had given of the circumstances in which she became pregnant with her fourth child, given the similar circumstances of the Sponsor’s three previous pregnancies.
[34] CB450, [24], first dot point
Irrational?
It is apparent from the elements of paragraph 27 of the Tribunal’s reasons, which I have set out above, and my observations on those elements, that the Tribunal’s reasons do not disclose an evident and intelligible justification for the Tribunal’s finding, or apparently finding, that:
(a)the circumstances in which the Sponsor became pregnant with her fourth child was not consistent with the visa applicant and the Sponsor having the relevant intention or the relevant commitment; and
(b)the circumstances in which the Sponsor became pregnant with each of the Sponsor’s first three children prevented the explanation the Sponsor gave of the circumstances in which she became pregnant with her fourth child to allay concerns the Tribunal had about whether the parties have the relevant intention or the relevant commitment.
A conclusion that a finding is not supported by any evident and intelligible justification bespeaks legal unreasonableness in the making of the finding.[35] The absence of any evident or intelligible justification of a finding, however, is also relevant to determining whether the finding is illogical or irrational. To “discern illogicality (or irrationality) one must demonstrate that there is only one conclusion open on the evidence or that there is no logical connection between the evidence and the inferences drawn”.[36] Where a decision maker, therefore, does not expressly rely on evidence to support a finding, then, in the absence of there being a basis for inferring that the fact finder might implicitly have relied on some probative evidence, or might otherwise have relied on a reasonable generalisation for which no evidence is required,[37] the absence of an evident and intelligible justification for a finding may be a basis for finding there is no logical connection between the finding and any of the material that was before the decision maker.
[35] Minister for Immigration and Citizenship v Li [2013] HCA 18, at [76]: “Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.” (Hayne, Kiefel and Bell JJ)
[36] Fattah v Minister for Home Affairs [2019] FCAFC 31, at [45]
[37] As for the use of generalisation in drawing inferences, see my discussion in Tran v Minister for Immigration & Anor [2019] FCCA 2859, at [23]-[28]
I cannot identify any evidence before the Authority that is capable of providing rational support for the Tribunal’s finding that the circumstances in which the Sponsor conceived her fourth child was not consistent with the parties having the relevant intention or the relevant commitment; nor can I identify any generalisation that reflects the ordinary course of human affairs that could rationally support such finding. I am therefore satisfied that the Tribunal’s finding that the Sponsor’s fourth pregnancy was not consistent with the parties having the relevant intention or the relevant commitment is irrational.
Materiality
It has been said that materiality:[38]
is a question of counter-factual analysis to be determined by the court as a matter of objective possibility as an aspect of determining whether an identified failure to comply with a statutory condition has resulted in a decision that has in fact been made being a decision that is wanting in statutory authorisation.
[38] CNY17 v Minister for Immigration and Border Protection [2019] HCA 50, at [47] (Kiefel CJ and Gageler J)
The required counterfactual analysis is to posit a state of affairs that is predicated on the decision-maker having not done that which the decision maker was prohibited from doing, or having done that which the decision maker ought to have done, but did not do; and then enquire whether in this posited state of affairs there is a possibility the decision could have been different. The degree of possibility of the decision being different in the posited state of affairs has been expressed in terms of “could realistically” have resulted in a different decision.[39] This expression is premised on an applicant’s bearing the burden of establishing that a particular act or omission said to give rise to jurisdictional error was material.[40] Another formulation is premised on the party seeking to uphold the validity of a decision to prove that the alleged act or omission said to constitute jurisdictional error could not have deprived the applicant of a successful outcome.[41]
[39] Minister for Immigration and Border Protection v SZMTA; CQZ15 v Minister for Immigration and Border Protection; BEG15 v Minister for Immigration and Border Protection [2019] HCA 3, at [45] (Bell, Gageler and Keane JJ)
[40] Minister for Immigration and Border Protection v SZMTA; CQZ15 v Minister for Immigration and Border Protection; BEG15 v Minister for Immigration and Border Protection [2019] HCA 3, at [46]: The “question of the materiality of the breach is an ordinary question of fact in respect of which the applicant bears the onus of proof.”
[41] Minister for Immigration and Border Protection v SZMTA; CQZ15 v Minister for Immigration and Border Protection; BEG15 v Minister for Immigration and Border Protection [2019] HCA 3, at [127]
On the assumption the Sponsor bears the onus of proving materiality, the question is whether, had the Tribunal not made what I have found to be the irrational finding that the Sponsor’s fourth pregnancy was not consistent with the parties having the relevant intention or the relevant commitment, that could realistically have resulted in a different decision. That question is to be answered in the affirmative. First, as I have already noted, the Sponsor’s having conceived her fourth child was the first of the matters on which the Tribunal relied for not being satisfied the Sponsor and visa applicant do not have the relevant intention or the relevant commitment; and the Tribunal referred to the Sponsor’s fourth pregnancy as being “[o]f significance”. Second, although the Tribunal relied on a number of matters for not being satisfied the visa applicant and the Sponsor have the relevant intention or the relevant commitment, the Tribunal did not treat any of the matters as being determinative by themselves; and, apart from referring to the Sponsor’s fourth pregnancy as being “[o]f significance”, the Tribunal did not attempt to assign particular weight to any of the matters on which it relied for not being satisfied the Sponsor and visa applicant have the relevant intention or the relevant commitment.
In these circumstances, had the Tribunal not found the fourth pregnancy was inconsistent with the parties having the relevant intention or the relevant commitment, there is a real possibility the Authority would have viewed the evidence differently. In particular, there is a real possibility the Tribunal would have viewed the circumstances in which the Sponsor conceived her fourth child, and the disclosure of that to the visa applicant, in a very different light. Having accepted the Sponsor’s evidence of these matters, there is a realistic possibility that the Tribunal could have viewed the Sponsor’s and the visa applicant’s evidence that they intended to marry, notwithstanding the Sponsor’s fourth pregnancy, as powerful evidence that the parties have the relevant intention and the relevant commitment.
Conclusion
The Sponsor has succeeded on her ground of review.
DISPOSITION AND COSTS
I propose to make an order under s.477(2) of the Act. I also propose to order that the Tribunal’s decision made on 5 June 2017 be quashed, and that the Tribunal consider the Sponsor’s application for review according to law.
There is no apparent reason why costs should not follow the event. I will order that the Minister pay the Sponsor’s costs in the amount provided for in Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth) as the rules operated at the time the applicants filed their application with this Court. That amount is $7,206. I will, however, reserve to the parties liberty to apply within 21 days for an order varying or discharging the order for costs I propose to make.
| I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis. |
Associate:
Dated: 27 November 2020
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