Pharikan v Minister for Home Affairs

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FEDERAL COURT OF AUSTRALIA

Pharikan v Minister for Home Affairs [2019] FCA 49

Appeal from: Pharikan v Minister for Home Affairs & Anor [2018] FCCA 1453
File number: NSD 1163 of 2018
Judge: GLEESON J
Date of judgment: 31 January 2019
Catchwords: MIGRATION – appeal from decision of Federal Circuit Court of Australia to affirm Administrative Appeals Tribunal’s decision to deny appellant partner visa – application for leave to rely on fresh grounds of appeal – whether Tribunal’s credibility finding based on illogical or irrational reasoning – appeal allowed
Legislation:

Migration Act 1958 (Cth) ss 5CB(2), 104(1), 476

Migration Regulations 1994 (Cth) reg 1.15A, Sch 2 cl 801.221(2)(c)
Cases cited:

Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576

DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2

Gauci v Federal Commissioner of Taxation [1975] HCA 54; (1975) 135 CLR 81

Minister for Immigration and Multicultural Affairs; Ex parte Applicant S154/2002 [2003] HCA 60; (2003) 201 ALR 437

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152

SZEJF v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 724

SZLGP v Minister for Immigration and Citizenship [2008] FCA 1198

SZLPH v Minister for Immigration and Border Protection [2018] FCAFC 145

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

Tran v Minister for Immigration and Multicultural Affairs [2006] FCA 1229

W148/00A v Minister for Immigration and Multicultural Affairs [2001] FCA 679; (2001) 185 ALR 703

WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 74; (2004) 80 ALD 568
Date of hearing: 20 November 2018
Registry: New South Wales
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 77
Counsel for the Appellant: Ms T Baw
Solicitor for the Appellant: Turner Coulson Immigration Lawyers
Counsel for the First Respondent: Ms N Laing
Solicitor for the First Respondent: Minter Ellison

ORDERS

NSD 1163 of 2018
BETWEEN:

PHINIT PHARIKAN

Appellant
AND:

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:

GLEESON J

DATE OF ORDER:

31 JANUARY 2019

THE COURT ORDERS THAT:

1.The appellant have leave to file an amended notice of appeal containing the following ground of appeal:

The Tribunal made a jurisdictional error by finding that the appellant deliberately withheld information from the Department which finding affected the Tribunal’s assessment of the appellant’s case that he was in a de facto relationship with his sponsor.

2.The appeal be allowed.

3.The orders made by the Federal Circuit Court of Australia dated 8 June 2018 be set aside, and in lieu of those orders it is ordered that:

(a)a writ of certiorari be issued quashing the decision of the second respondent dated 14 January 2016;

(b)the matter be remitted to the second respondent, differently constituted, for determination of the application for review dated 12 January 2015 according to law; and

(c)the first…

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Details
Case
[2019] FCA 49
Decision Date

CaseChat Overview and Summary

Pharikan, a national of Thailand, appeals a decision of the Federal Circuit Court of Australia to dismiss an application for judicial review of a decision of the Administrative Appeals Tribunal. The Tribunal had affirmed a decision of the Minister for Home Affairs to refuse to grant the appellant a Partner (Residence) (Class BS) visa on the basis that he had not satisfied the Tribunal that he was in a de facto relationship with his sponsor. The appellant contends that the Tribunal’s credibility finding was based on illogical or irrational reasoning. The court was required to decide whether the Tribunal had made a jurisdictional error in its assessment of the appellant’s credibility and the evidence presented. The court found that the Tribunal’s reasons did not reveal a jurisdictional error and dismissed the appeal. However, the court granted leave to the appellant to file an amended notice of appeal, allowing the appeal and setting aside the orders made by the Federal Circuit Court of Australia. The decision of the Tribunal was quashed, and the matter was remitted to the Tribunal, differently constituted, for determination according to law. The Minister was ordered to pay the appellant's costs of and incidental to the appeal and of the proceedings in the Federal Circuit Court of Australia as agreed or assessed.

Orders

Orders of the court

1. The appellant have leave to file an amended notice of appeal containing the following ground of appeal:

The Tribunal made a jurisdictional error by finding that the appellant deliberately withheld information from the Department which finding affected the Tribunal’s assessment of the appellant’s case that he was in a de facto relationship with his sponsor.

2. The appeal be allowed.

3. The orders made by the Federal Circuit Court of Australia dated 8 June 2018 be set aside, and in lieu of those orders it is ordered that:

(a) a writ of certiorari be issued quashing the decision of the second respondent dated 14 January 2016;

(b) the matter be remitted to the second respondent, differently constituted, for determination of the application for review dated 12 January 2015 according to law; and

(c) the first respondent pay the appellant's costs of and incidental to the appeal and of the proceedings in the Federal Circuit Court of Australia as agreed or assessed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

The appellant appeals from a decision of a judge of the Federal Circuit Court of Australia (“FCCA”) dated 8 June 2018, dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal (“Tribunal”) made on 14 January 2016 to affirm the decision of the delegate of the first respondent (“Minister”) to refuse to grant the appellant a Partner (Residence) (Class BS) visa: Pharikan v Minister for Immigration & Anor [2018] FCCA 1453.BACKGROUND TO APPEAL The appellant is a national of Thailand, born in 1961. He came to Australia on a visa granted on the basis of a sponsorship by the appellant’s former wife. The relationship between the appellant and his former wife ended and, on 10 March 2011, the appellant applied for the visa on the basis of his relationship with a different sponsor. On 18 December 2014, the delegate refused the appellant’s visa application because she was not satisfied that the appellant was the de facto spouse of the sponsor. The Tribunal conducted a hearing on 14 January 2016, at which the appellant (represented by his lawyer, Mr Ray Turner) gave evidence and made arguments. The Tribunal also received oral evidence from the sponsor and the appellant’s daughter. The hearing was conducted with the assistance of an interpreter in the Thai and English languages. At the hearing, the Tribunal questioned the appellant about when he had separated from his former wife. The appellant gave evidence to the effect that the separation was effected by a telephone call made by his former wife to the Department. That is, his evidence was that he did not consider them to have separated until he was informed by the Department of his former wife’s call. Although the appellant acknowledged that he had moved out of his former wife’s house to live with a friend and his daughter, the appellant claimed that he had been asked to do so to enable the former wife’s relatives to stay with her and that he expected that he would return to live with the former wife after the relatives had left. The Tribunal questioned the veracity of this evidence, on the basis of the appellant’s statutory declaration which had accompanied his visa application. The Tribunal then questioned the appellant about why he had not informed the Department about matters set out in the statutory declaration, to the effect that the relationship with the former wife had broken down. The relevant passage of the transcript is as follows:[Tribunal]:According to your written statement your relationship wasn’t good for a long time before you came – after you came to Australia. You hadn’t shared the bedroom. She hasn’t give you access to the house, she didn’t (indecipherable), she kicked you out of the house and threw our [sic] clothes. Who didn’t you inform the Immigration Department about any of this?[Appellant]: I told that to a lawyer once um [sic] I said (indecipherable) the lawyer requested $1,700. I paid him half and then he just closed the office and ran away. Mr (indecipherable) and I tried to contact him but I couldn’t and at the time I didn’t even know what visa I was –[Tribunal]:Well, I suppose my concern is how truthful is your evidence. You have now given me a very different picture of your relationship with your ex-wife than what is written in your (indecipherable) declaration and it seems to me that when that relationship wasn’t going well, when that relationship broke down you didn’t inform the Immigration Department which you could have done yourself without paying $1,700 to someone. But you waited for the Immigration Department to call you and tell you that your ex-wife had (indecipherable) sponsorship.I don’t really understand how you could not have known what visa you are holding given that you have applied for a (indecipherable) visa then you must … documents to show you are in a relationship with your ex-wife before you were granted the (indecipherable) visa.[Appellant]: After I contacted the lawyer I did not know visa [sic] I was on because his office was closed and I got my other daughter to contact Immigration.[Tribunal]:So you told the Immigration officer of your relationship with you ex-wife broke down?[Appellant]: The Immigration officer gave me a form to write a letter and so I wrote the letter. I got this girl to help me write it.[Tribunal]:Before or after the Immigration Department contacted you?[Appellant]: After.[Tribunal]:So my question was why did you not inform the Immigration Department that your relationship broke down if that was the basis on which you were being in Australia, why did no not do the right thing and tell them what was going on in your relationship?[Appellant]: I didn’t know how to inform the Immigration Department.[Tribunal]:So did you think you were able to stay in Australia if you came here on the basis of the relationship with your ex-wife and that relationship wasn’t going well, why did it not occur to you that you had to inform the Immigration Department?[Appellant]: I just didn’t (indecipherable).[Tribunal]:Did you have contact with your ex-girlfriend while you were in the relationship with your ex-wife?[Appellant]: Sometimes.[Tribunal]:Right so I understand your relationship with your ex-wife broke down around May 2008, early 2008 you say?[Appellant]: Yes.Tribunal decision

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The Tribunal then questioned the appellant about why he had not informed the Department about matters set out in the statutory declaration, to the effect that the relationship with the former wife had broken down. The relevant passage of the transcript is as follows:[Tribunal]:According to your written statement your relationship wasn’t good for a long time before you came – after you came to Australia. You hadn’t shared the bedroom. She hasn’t give you access to the house, she didn’t (indecipherable), she kicked you out of the house and threw our [sic] clothes. Who didn’t you inform the Immigration Department about any of this?[Appellant]: I told that to a lawyer once um [sic] I said (indecipherable) the lawyer requested $1,700. I paid him half and then he just closed the office and ran away. Mr (indecipherable) and I tried to contact him but I couldn’t and at the time I didn’t even know what visa I was –[Tribunal]:Well, I suppose my concern is how truthful is your evidence. You have now given me a very different picture of your relationship with your ex-wife than what is written in your (indecipherable) declaration and it seems to me that when that relationship wasn’t going well, when that relationship broke down you didn’t inform the Immigration Department which you could have done yourself without paying $1,700 to someone. But you waited for the Immigration Department to call you and tell you that your ex-wife had (indecipherable) sponsorship.I don’t really understand how you could not have known what visa you are holding given that you have applied for a (indecipherable) visa then you must … documents to show you are in a relationship with your ex-wife before you were granted the (indecipherable) visa.[Appellant]: After I contacted the lawyer I did not know visa [sic] I was on because his office was closed and I got my other daughter to contact Immigration.[Tribunal]:So you told the Immigration officer of your relationship with you ex-wife broke down?[Appellant]: The Immigration officer gave me a form to write a letter and so I wrote the letter. I got this girl to help me write it.[Tribunal]:Before or after the Immigration Department contacted you?[Appellant]: After.[Tribunal]:So my question was why did you not inform the Immigration Department that your relationship broke down if that was the basis on which you were being in Australia, why did no not do the right thing and tell them what was going on in your relationship?[Appellant]: I didn’t know how to inform the Immigration Department.[Tribunal]:So did you think you were able to stay in Australia if you came here on the basis of the relationship with your ex-wife and that relationship wasn’t going well, why did it not occur to you that you had to inform the Immigration Department?[Appellant]: I just didn’t (indecipherable).[Tribunal]:Did you have contact with your ex-girlfriend while you were in the relationship with your ex-wife?[Appellant]: Sometimes.[Tribunal]:Right so I understand your relationship with your ex-wife broke down around May 2008, early 2008 you say?[Appellant]: Yes.Tribunal decision

Ratio Decidendi

Legal Principle Established

In determining whether procedural fairness has been denied, it may be relevant to note the distinction between an adverse assessment of a witness’s credit and a positive finding of fact on an issue about which the witness’s evidence is tested. Thus, for example, as Barwick CJ observed in Gauci v Federal Commissioner of Taxation [1975] HCA 54; (1975) 135 CLR 81 at 87, “[d]isbelief does not amount to positive evidence of the opposite of what is disbelieved”.ConsiderationParticulars (1) to (4) I am not satisfied that the Tribunal’s decision record reveals jurisdictional error of the kind identified in the first four of the five particulars to the first proposed ground of appeal. First, particular (1) implicitly acknowledges that the appellant had an obligation under s 104(1) of the Act “if his circumstances change[d]”. There is nothing illogical or irrational in an expectation that the appellant would be aware of his legal obligations. It is a separate question whether the appellant was, in fact, so aware. Second, the Tribunal’s finding that the appellant’s evidence was “unconvincing” was nothing more than an observation or side comment. Accepting, as was said in the passage from W148/00A set out above, that it is not sufficient to make passing comments where the issue is important or significant, the appellant’s evidence on this point was not such an issue. That is demonstrated by the fact that the Tribunal did not make findings as to the truthfulness of the evidence. Third, it was open to the Tribunal to form the view that the evidence was unconvincing. The appellant’s evidence was that he had paid a lawyer who had disappeared, rather than a migration agent. On its face, it is surprising that a lawyer or a migration agent might have disappeared given that both occupations are regulated and it is also surprising that the appellant claimed not to know what visa he held given the significance of the visa to his legal status in Australia. At the hearing of the appeal, it was submitted that the Tribunal had an obligation to quiz the appellant about his evidence, apparently in order to determine whether he might have been able to substantiate it with more detail. The Tribunal did not have such an obligation as a matter of procedural fairness. It was a matter for the appellant to put forward such evidence as he considered would support his application: see SZBEL at [40] and [48]; Minister for Immigration and Multicultural Affairs; Ex parte Applicant S154/2002 [2003] HCA 60; (2003) 201 ALR 437 at [57]-[58] per Gummow and Heydon JJ (Gleeson CJ agreeing at [1]). Fourth, the Tribunal’s decision record does not reveal the evidentiary basis for its finding that the appellant “could have easily contacted Immigration himself” notwithstanding the appellant’s evidence that he did not know how to inform the Department of the breakdown of his previous relationship. However, the appellant did give evidence that, after the Department had initiated contact with him, his daughter assisted him to contact the Department. That evidence provides a basis (albeit thin) for the Tribunal’s finding. In my view, the Tribunal’s reasons should not be construed as meaning that the appellant could have contacted the Department without the assistance of his daughter but, rather, without the assistance of a migration agent. The other matters identified by the appellant, being his lack of English speaking skills and his statement that he did not know how to inform the Department, did not require the Tribunal to refrain from making the finding. Particular (5)