Riquelme v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FedCFamC2G 99
•1 October 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Riquelme v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 99
File number(s): SYG 2790 of 2017 Judgment of: JUDGE MANOUSARIDIS Date of judgment: 1 October 2021 Catchwords: MIGRATION – application for remedies under s 476 of the Migration Act 1958 (Cth) in relation to a decision of the Administrative Appeals Tribunal (Tribunal) affirming a decision not to grant a Partner visa – whether the Tribunal made any error in approaching its task on the basis that whether the applicant and sponsor were in a married relationship was to be determined at the time of decision – whether the Tribunal acted on false evidence – whether the applicant was impaired at the hearing before the Tribunal due to what the sponsor said and evidence given at the hearing – whether the Tribunal considered information in support of genuine marriage – no jurisdictional error Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth), s 8
Migration Act 1958 (Cth), ss 5F(2), 476
Migration Regulations 1994 (Cth), reg 1.15A, Sch 2, cl 820.211(2)(a)
Division: Division 2 General Federal Law Number of paragraphs: 32 Date of hearing: 22 September 2021 Place: Sydney The Applicant: Appeared in person, assisted by an interpreter, by telephone Solicitor for the First Respondent: Mr J Dadgar of HWL Ebsworth Lawyers, by telephone ORDERS
SYG 2790 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: PATRICIO LEONARDO RIQUELME RIQUELME
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE MANOUSARIDIS
DATE OF ORDER:
1 OCTOBER 2021
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The applicant pay the first respondent’s costs set in the amount of $5,600.
THE COURT NOTES THAT:
3.These are the orders of the Federal Circuit and Family Court of Australia (Division 2).
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION
The applicant applies for remedies under s 476 of the Migration Act 1958 (Cth) (Act) in relation to a decision of the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant a Partner (Temporary) (Class UK) visa (Partner visa).
BACKGROUND
The applicant is a citizen of Chile. He entered Australia in March 2015 as the holder of a tourist visa; and he applied for a Partner visa on 11 June 2015 on the basis that he was married to an Australian citizen (Sponsor).
To have been entitled to be granted a Partner visa the applicant had to satisfy, among other things, the criterion specified in cl 820.211(2)(a) of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations). That paragraph requires that at the time of application for a Partner visa the applicant is the spouse or de facto partner of an Australian citizen. 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 the Act; and
(b)they have a mutual commitment to a shared life as a married couple 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 of the Regulations. Subregulation 1.15A(2) of the Regulations provides that, when considering an application for, among other subclasses of visas, a Partner visa, the Minister must consider all the circumstances of the relationship, including the matters set out in reg 1.15A(3) of the Regulations. Those matters 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; and 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; and 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.
In his application for a Partner visa the applicant said he and the Sponsor met in May 2014 through a particular webpage, and commenced a friendship. They regularly contacted each other through Skype, and they met members of each other’s families. In September 2014 the applicant asked the Sponsor to be his girlfriend. They started to spend more time together, and in early 2015 the applicant decided to visit Australia and surprise the Sponsor. The applicant and Sponsor married in May 2015. The applicant supported his application for a Partner visa with statements made by a number of persons, including a Mr O.
By letters dated 16 May 2016 and 2 August 2016 the delegate requested the applicant provide documents to support his application, but the applicant did not respond to the requests.[1] On 2 November 2016 the delegate refused to grant the applicant a Partner visa.
[1] CB135
BEFORE THE TRIBUNAL
On 16 November 2016 the applicant applied to the Tribunal for review of the delegate’s decision.[2]
[2] CB167
By letter dated 19 May 2017 the Tribunal requested the applicant provide the information identified in the letter.[3] By email sent on 3 June 2017 the applicant submitted various documents.
[3] CB235
By letter dated 22 June 2017 the Tribunal invited the applicant to attend a hearing on 31 July 2017 to give evidence and present arguments.[4] The letter stated the Tribunal may wish to take evidence from the Sponsor, and requested the applicant arrange for the Sponsor to attend the hearing. On 23 June 2017 the applicant completed and returned to the Tribunal a form titled “Response to hearing invitation – MR Division”.[5] The applicant ticked the box next to “no” that appeared under the printed words “I/we request that the Member takes oral evidence from another person”.
[4] CB389
[5] CB395
In the meantime, on 3 July 2017 a lawyer (Lawyer R) sent an email to the Tribunal stating “[w]e act for the sponsor and the applicant” in the matter, and attached a completed form headed “Appointment of Representative”.[6] The document contains a signature in the box which appears above the word “Applicant”. By email sent to the Tribunal on 28 July 2017,[7] however, Lawyer R stated “[w]e act for the … sponsor”, and that “[w]e are instructed by the Sponsor that she wishes to withdraw her application for sponsorship”.[8] Further, in an email sent on 28 July 2017 Lawyer R stated to the Tribunal that she “previously only assisted the Sponsor in respect of this application, not the Applicant”, and, for that reason, it was not necessary for the applicant to withdraw Lawyer R’s representation of him.[9]
[6] CB391
[7] CB156
[8] CB156
[9] CB402
The applicant appeared before the Tribunal on 31 July 2017. The document headed “MRD Hearing Record” records the Sponsor also appeared, but was recorded to have appeared “just [for] support”.[10] In its reasons for decision the Tribunal records that the Sponsor attended the hearing, but she did not wish to give evidence; and that the Tribunal explained to the applicant that if the Sponsor did not give evidence the Tribunal might consider that this demonstrated a lack of commitment to the relationship. The Tribunal asked the applicant if he wished the Sponsor to give evidence, but the applicant said he respected the Sponsor’s choice not to give evidence.[11]
[10] CB404
[11] CB435, [12]
After the applicant had given oral evidence in support of his application the Tribunal informed the applicant “there was adverse information on the Tribunal file” which “suggested that the relationship was not genuine and continuing”. The Tribunal said:[12]
It was explained to [the applicant] that if the Tribunal affirmed the decision to refuse his visa, the information would be the reason or part of the reason for reaching that decision because it indicated that he may not have a long term commitment to the marriage. He was asked if he understood and said he did. He was given the option of responding orally at the hearing or asking for more time to respond after the hearing and elected to comment about the adverse information at the hearing.
[12] CB435, [14]
In response to the Tribunal asking the applicant whether he wanted the Tribunal to take evidence from anyone else, the applicant requested the Tribunal call Mr O. The applicant said he wanted the Tribunal to speak to Mr O so Mr O could give evidence in support of the applicant’s marriage to the Sponsor being genuine.[13] The Tribunal telephoned Mr O and Mr O “gave spontaneous evidence that he does not support the relationship” because the Sponsor had told Mr O about matters it is not necessary to reproduce in these reasons.[14]
[13] CB435, [15]
[14] CB436, [16]
By letter dated 31 July 2017 (359A letter) the Tribunal informed the applicant that during the hearing on 31 July 2017 it had become aware that on 28 July 2017 the Sponsor had withdrawn her sponsorship of the applicant’s Partner visa application; and that, given that information, the Tribunal had formed the preliminary view that the relationship between the applicant and Sponsor was over, and that he and the Sponsor are no longer in a marriage that is genuine and continuing.[15] The applicant was invited to give comments or respond to that information.
[15] CB410
The applicant responded by email sent on 3 August 2017.[16] The applicant said he never imagined this sad ending to his marriage. The applicant said the Sponsor told him that Lawyer R cannot represent the applicant because Lawyer R is the Sponsor’s personal lawyer. After stating he sincerely wants to have the opportunity to live in Australia, and that by staying in Australia he can help many people, the applicant said he wanted “to clarify the situation of the document that I signed and showed me, in which I did not recognize my signature”; and he said he was “interested to know to whom I have made that request in my name”. That appears to be a reference to the “Appointment of Representative” form Lawyer R provided to the Tribunal by email on 3 July 2017.
[16] CB415-417
The applicant made a further response to the 359A letter by email sent on 14 August 2017.[17] The applicant said that at the hearing before the Tribunal he was very affected by the Sponsor’s decision. He said “[w]e are closing this marriage, with much peace and maturity”. The applicant said he had always spoken the truth, and he denied the matters stated by Mr O at the hearing before the Tribunal. The applicant then set out reasons for requesting that he be granted permanent residence.
[17] CB423
TRIBUNAL’S REASONS
The Tribunal accepted the applicant and Sponsor were married to each other under a marriage that is valid as required by s 5F(2(a) of the Act; but the Tribunal was not satisfied the applicant met, at the time of its decision, the requirements of s 5F(2)(b)-(d) of the Act.
(a)The Tribunal was satisfied the applicant and Sponsor are not in a married relationship, and they do not have a financial relationship as a married couple with each other.[18]
(b)The Tribunal was satisfied that, although the applicant and Sponsor live in the same household, at the time of its decision, there was no mutual intention between the parties to continue to share a household as a married couple.[19] The Tribunal relied on the Sponsor having withdrawn her sponsorship, and the applicant’s having stated that he and the Sponsor are living together, but separately, until a decision is made on the applicant’s visa matter.[20]
(c)Although the Tribunal accepted the applicant and Sponsor socialised with others, including friends and members of both their families, given the Sponsor had withdrawn her sponsorship, and the Sponsor and applicant no longer consider themselves to be in a married relationship, they do not represent themselves as a genuinely married couple to others.[21]
(d)The Tribunal found the Sponsor does not have a commitment to the relationship or consider it to be genuine or continuing. The Tribunal relied on the Sponsor’s not wishing to give evidence at the hearing, the Sponsor’s not wanting to leave the hearing room with the applicant, and the documents the Sponsor sent to the Tribunal which the Tribunal did not see until after the hearing, which, the Tribunal found, “clearly indicated the sponsor had withdrawn her sponsorship three days prior, on 28 July 2017”.[22]
(e)Although the applicant and Sponsor have lived together for a little over two years, the Tribunal was not satisfied they provided each other with companionship and emotional support commensurate with what might reasonably be expected of a married couple in a committed relationship that is considered long term; and, in any event, the sponsorship was withdrawn, and the applicant “has advised that the marriage is over”.[23]
[18] CB436, [19]
[19] CB437, [23]
[20] CB436, [21]
[21] CB437, [24]-[25]
[22] CB437, [27]
[23] CB437, [28]
The Tribunal referred to the applicant’s response to the “adverse information on the Tribunal file” which “suggested that the relationship was not genuine and continuing”. Although the Tribunal considered it possible the applicant believed at the time he gave his evidence that his relationship with the Sponsor was genuine and continuing, the Tribunal was “not satisfied, in the light of other information that has subsequently been provided, that the relationship is genuine and continuing at the time of this decision”.[24]
[24] CB438, [31]
The Tribunal also referred to the applicant’s response to the 359A letter. The Tribunal said it considered the applicant’s response but, “as the sponsor has withdrawn her sponsorship”, the Tribunal found “that the parties are not, at the time of this decision, in a married relationship as required by s.5F of the Act”.[25]
[25] CB438, [33]
Finally, the Tribunal referred to a letter the Sponsor, through Lawyer R, provided to the Tribunal in response to the 359A letter. The Tribunal noted that the Sponsor stated the relationship between the applicant and Sponsor has irretrievably broken down, and the letter referred to other aspects of the relationship. The Tribunal said it considered this letter but “does not consider it relevant to making a decision and has not relied on anything in the letter in reaching a decision”.[26]
[26] CB438, [34]
GROUNDS OF APPLICATION
In the section of the form of application headed “grounds of application” the applicant, who is not legally represented, wrote the following (errors in original):
We are still married and we were married at the time of application and decision.
We married on the 22nd May, 2015 and we have lived as a couple for.
At the moment we are separated but we are talking on friendly basis trying to fix our problems and differences that a normal couple usually has. We are thinking to get professional help.
My wife decided not to give any declaration because she was advised not to do so at the time of hearing. However, now she is willing to declare that our relationship was genuine for more than 2 years. Therefore, I think I am eligible to have the partner visa and my wife is willing to continue supporting me with this appeal. She is being under a lot of stress.
The tribunal made a jurisdictional error by not taking into account the additional evidence where witnesses declared that our relationship was genuine and we lived together for more than 2 years as a married couple.
The applicant also relied on an affidavit he made on 15 January 2018 which attaches two letters, one from the applicant, and one from the Sponsor, both addressed to the Judge who would hear the applicant’s application in this Court. In his letter the applicant said the Sponsor is willing to be a “key witness in September 2019”. The applicant states he intends to “demonstrate the veracity of my marriage”; he feels “really very offended that it was considered that my relationship was not real”; the applicant and the Sponsor are “currently separated”, but there is still a lot of love between them; the applicant and the Sponsor “continue to go out as a family”, and it hurts the applicant “that it was thought that my marriage was false”. The letter from the Sponsor states that “our marriage was real”, having been married at the date and place set out in the letter. The Sponsor further stated that she and the applicant “are currently separated by our differences that over time caused the breakdown of our relationship”. The letter concluded with the Sponsor stating she is willing to “testify at any time that is necessary”.
At the hearing before me the applicant gave a detailed history of his relationship with the Sponsor. The applicant said that it came to him as a shock when the Sponsor decided not to make a statement to the Tribunal; after Mr O gave evidence the applicant was in a state of shock, and was incapable of speaking; when he and the Sponsor returned home the applicant discovered the Sponsor had sent a letter to the Tribunal behind his back; Mr O plotted to give false evidence against the applicant to defeat his application; the Sponsor confessed to having plotted with Mr O that he give false evidence, and Mr O gave untrue evidence in collusion with the Sponsor; Lawyer R had forged the applicant’s signature; the applicant and the Sponsor remained together until early 2019; the applicant decided to appeal to remain in Australia to give himself a chance to get back with the Sponsor; for reasons it is unnecessary to set out the applicant said that he and the Sponsor are no longer together; and the applicant said he did not come to Australia to take advantage of the opportunity to obtain a visa.
DETERMINATION
The applicant may be taken to make a number claims. One claim is that the Tribunal found the applicant’s marriage with the Sponsor was not genuine, or was made for the purposes of the applicant obtaining a visa to live in Australia. That claim, however, is incorrect. The Tribunal made no finding to the effect that the applicant’s marriage to the Sponsor was not genuine. The question the Tribunal addressed was whether, as at the time of its decision, it was satisfied the applicant and the Sponsor were in a “married relationship” within the meaning of s 5F(2) of the Act; and the Tribunal determined that question by considering those things s 5F(2) required it to consider. The Tribunal’s ultimate conclusion was that the applicant and the Sponsor “do not meet s.5F(2)(b)-(d) at the time of this decision”; and the matters on which the Tribunal principally relied was the Sponsor’s decision to withdraw her sponsorship, and the applicant’s acknowledging that the marriage had ended.
A second claim the applicant may be taken to make is that he had been in a genuine marriage with the Sponsor for two years, and this entitles him to be granted a Partner visa. That misunderstands what the applicant had to establish to be entitled to the grant of a Partner visa, namely, that at the time the Tribunal made its decision the applicant and Sponsor were in a “married relationship” within the meaning of s 5F(2) of the Act.
A third claim the applicant may be taken to make is that the Sponsor colluded with Mr O that Mr O give false evidence to the Tribunal. There are a number of things that may be said about this.
(a)The allegation goes no further than assertion; it is not particularised, and there is no evidence to support it.
(b)Even if the applicant had said on oath that which he told me, I would not have accepted it. The applicant does not refer to any fraud or collusion in his grounds of application or his letter annexed to his affidavit of 15 January 2018. Nor does the Sponsor, in her letter attached to the same affidavit, refer to her willingness to give evidence about what had occurred before the Tribunal, or about the evidence Mr O gave. Further, at paragraph 26 of its reasons, the Tribunal refers to the Sponsor’s emotional response to the evidence Mr O gave, which would be difficult to find was consistent with her colluding with Mr O for him to give false evidence.
(c)The Tribunal telephoned Mr O at the request of the applicant. The applicant does not say, and there is nothing in the evidence before me that could suggest, that the Sponsor encouraged the applicant to ask the Tribunal to telephone Mr O.
(d)This is not a case where the lack of particularisation can be attributed to the applicant being unrepresented and not being aware of the need to present evidence before the Court. The applicant has filed evidence and has put into evidence a letter from the Sponsor.
A fourth claim the applicant may be taken to make is that his signature had been forged in the form titled “Appointment of Representative” Lawyer R provided to the Tribunal on 3 July 2017.[27] Two thing may be said about this.
(a)First, it may be accepted that the signature in the box appearing above the word “Applicant” is not the applicant’s signature. But that does not mean the signature was made with the intention of representing it was the signature of the applicant. As I noted earlier, in an email sent on 28 July 2017 Lawyer R stated to the Tribunal that she “previously only assisted the Sponsor in respect of this application, not the Applicant”, and, for that reason, it was not necessary for the applicant to withdraw Lawyer R’s representation of him.[28] This affords a basis for finding that the signature that appears in the box above the word “Applicant” is the Sponsor’s signature. It is not, however necessary for me to so find; but the reasonable possibility that the signature is that of the Sponsor prevents me from finding that the signature was made on the “Appointment of Representative” form with the intention of falsely representing it was the signature of the applicant.
(b)Second, the Tribunal did not rely on the “Appointment of Representative” form in its consideration or determination of whether the relationship between the applicant and Sponsor satisfied s 5F(2) of the Act.
[27] CB391
[28] CB402
A fifth claim the applicant may be taken to make is that, given the shock of what occurred during the hearing, the applicant was unable to give correct answers, or give information he otherwise would or could have given. I would not accept this claim. In the email the applicant sent to the Tribunal on 14 August 2017 the applicant said he was very affected by the Sponsor’s decision; “[w]e are closing this marriage, with much peace and maturity”; the applicant always had spoken the truth; and he denied the matters stated by Mr O. The applicant did not otherwise identify information he failed to give to the Tribunal at the hearing, or any incorrect information he had given the Tribunal at the hearing.
A sixth claim is one the applicant expressly makes in the grounds of application. The applicant claims the Tribunal made a jurisdictional error because the Tribunal did not take into account “the additional evidence where witnesses declared that our relationship was genuine and we lived together for more than 2 years as a married couple”. It is the case that the applicant supported his application with statutory declarations made by three persons, including Mr O, and also a statement made by the Sponsor; and it is the case the Tribunal did not refer to these declarations. I am not prepared to find, however, the Tribunal did not consider the declarations. Given the question the Tribunal was required to ask, and which it did ask, namely, whether, at the time the Tribunal made its decision, the applicant and Sponsor were in a “married relationship” within the meaning of s 5F(2) of the Act, I find the Tribunal did consider the statutory declarations but considered them to be of limited weight, given the other matters it did consider, and in particular, the Sponsor’s withdrawal of her sponsorship, and the applicant’s acceptance that the relationship has ended.
CONCLUSION AND DISPOSITION
The applicant has not shown the Tribunal made any jurisdictional error. The applicant’s application must therefore be dismissed.
The Minister seeks costs set in the amount of $5,600. The applicant informed me he cannot afford to pay costs, but if I were to order that he pay the Minister’s costs I should set the costs for a lower amount. That the applicant may not be in a position to pay the Minister’s costs is not a sufficient reason against my ordering that the applicant pay the reasonable costs of the Minister. I am satisfied the applicant should pay the Minister’s costs. I am also satisfied that $5,600 represents a fair indemnity of the costs the Minister has incurred in successfully defending the applicant’s challenge to the Tribunal’s decision. I will therefore also order that the applicant pay the Minister’s costs set in the amount of $5,600.
I will note that the orders I propose to make are orders of the Federal Circuit and Family Court of Australia (Division 2). That is necessary because the seal of this Court that will be affixed to the orders I propose to make only includes the words “Federal Circuit and Family Court of Australia”. The Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act), however, does not constitute any court by the name of the “Federal Circuit and Family Court of Australia”. Section 8 of the FCFCOA Act continues the existence of two federal courts and renames them. The first federal court the FCFCOA Act continues is the Court that, before 1 September 2021, was named the “Family Court of Australia”, and s 8(1) renames that Court the “Federal Circuit and Family Court of Australia (Division 1)”. The second federal court the FCFCOA Act continues is this Court which, before 1 September 2021, was named the “Federal Circuit Court of Australia”, but which s 8(2) of the FCFCOA Act renames the “Federal Circuit and Family Court of Australia (Division 2)”.
I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis. Associate:
Dated: 1 October 2021
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