Sharma v Minister for Immigration
[2016] FCCA 2726
•8 November 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SHARMA v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 2726 |
| Catchwords: MIGRATION – Migration Act 1958 (Cth) – application for Partner visa – allegation of breach of s.359A and of the principles of natural justice by failure of Minister to provide copy of a photograph to Applicant – alleged failure of Tribunal to consider significant evidence – waiver of PIC4020 – no jurisdictional error – application for judicial review dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5F, 99, 101, 103, 104, 105, 359A, 359C, 360, 425 Migration Regulations 1994 (Cth) |
| Cases cited: Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427 SZQYU v Minister for Immigration (2012) 134 ALD 590 Trivedi v Minister for Immigration (2014) 220 FCR 169 |
| Applicant: | SUNIL SHARMA |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 251 of 2016 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 21 September 2016 |
| Date of Last Submission: | 21 September 2016 |
| Delivered at: | Sydney |
| Delivered on: | 8 November 2016 |
REPRESENTATION
| The applicant appeared in person. |
| Counsel for the First Respondent: | Mr P Knowles of Counsel. |
| Solicitors for the First Respondent: | DLA Piper. |
| The Second Respondent: | The Second Respondent filed a submitting appearance. |
THE COURT ORDERS AS FOLLOWS:-
The Application filed in this Court on 8 February 2016 is dismissed with costs in an amount to be determined.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 251 of 2016
| SUNIL SHARMA |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant is a male citizen of India aged 29 years, having been born on 8 August 1987.
By Application filed in this Court on 8 February 2015 the Applicant seeks by constitutional writs to quash and have redetermined a decision of the Second Respondent, the Administrative Appeals Tribunal (Second Tribunal) dated 11 January 2016 affirming a decision dated 11 November 2014 of a Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister) refusing to grant him a Partner (Residence) (Class BS) visa (Partner visa).
It should be noted that the Second Tribunal decision of 11 January 2016 under review was the second Tribunal to conduct a merits review of the Delegate’s decision. The first Tribunal decision of 25 February 2015 (First Tribunal) was quashed in this Court and remitted for redetermination by consent in the circumstances described in paragraphs 21 to 25 below.
The Applicant applied for a Partner visa on 26 February 2010. He claimed in his Partner visa application to have met Ms Deborah Anne Carter-Smith (Ms Carter-Smith) on 21 July 2009 and to have married her in accordance with Australian law (as in fact they had) on 7 January 2010.
For the purposes of his Partner visa application the Applicant had to establish at the time of decision to the satisfaction of the Minister that:
a)The Applicant was the spouse of his sponsoring partner, namely Ms Carter-Smith as was required by sub-cl.801.221(2)(c) of Sch.4 to the Migration Regulations 1994 (Cth) (the Regulations); and
b)The Applicant satisfied Public Interest Criteria 4020 (PIC4020) (contained in Sch.4 to the Regulations) as required by cl.801.226.
At the relevant time, section 5F of the Migration Act 1958 (Cth) (the Act) defined a “spouse” for the purposes of the Act and the Regulations and necessarily cl.801.221(2)(c) as follows:
5F Spouse
(1) For the purposes of this Act, a person is the spouse of another person if, under subsection (2), the 2 persons are in a married relationship.
(2)For the purposes of subsection (1), 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:
(i) live together; or
(ii) do not live separately and apart on a permanent basis.
(3) 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 may make different provision in relation to the determination for different purposes whether one or more of those conditions exist.
For the purposes of s.5F(3), reg.1.15A of the Regulations made “provision in relation to the determination of whether one or more of the conditions in paragraphs (2)(a), (b), (c) and (d) exist.” That regulation provided at the relevant time as follows:
1.15ASpouse
(1)For subsection 5F(3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5F(2)(1), (b), (c) and (d) of the Act exist.
(2) If the Minister is considering an application for:
(a) a Partner (Migrant) (Class BC) visa; or
(b) a Partner (Provisional) (Class UF) visa; or
(c)a Partner (Residence) (Class BS) visa; or
(d)a Partner (Temporary) (Class UK) visa;
the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).
(3) The matters for subregulation (2) are:
(a) the financial aspects of the relationship, including:
(i) any joint ownership of real estate or other major assets; and
(ii) any joint liabilities; and
(iii) the extent of any pooling of financial resources, especially in relation to major financial commitments; and
(iv) whether one person in the relationship owes any legal obligation in respect of the other; and
(v) the basis of any sharing of day to day household expenses; and
(b) the nature of the household, including:
(i) any joint responsibility for the care and support of children; and
(ii) the living arrangements of the persons; and
(iii) any sharing of the responsibility for housework; and
(c) the social aspects of the relationship, including:
(i) whether the persons represent themselves to other people as being married to each other; and
(ii) the opinion of the persons’ friends and acquaintances about the nature of the relationship; and
(iii) any basis on which the persons plan and undertake joint social activities; and
(d) the nature of the persons’ commitment to each other, including:
(i) the duration of the relationship; and
(ii) the length of time during which the persons have lived together; and
(iii) the degree of companionship and emotional support that the persons draw from each other; and
(iv) whether the persons see the relationship as a long term one.
(4) If the Minister is considering an application for a visa of a class other than a class mentioned in subregulation (2), the Minister may consider any of the circumstances mentioned in subregulation (3).
PIC4020 relevantly to this case provided at the time of the Second Tribunal decision as follows:
(1)There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal during the review of a Part 5‑reviewable decision, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:
(a) the application for the visa; or
(b) a visa that the applicant held in the period of 12 months before the application was made.
…
(4)The Minister may waive the requirements of any or all of paragraphs(1)(a) or (b) and subclause (2) if satisfied that:
(a)compelling circumstances that affect the interests of Australia; or
(b)compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;
justify the granting of the visa.
The purpose of PIC4020 was to address “the problem of attempts to work a fraud or deception on the assessment of claims for a visa”: Trivedi v Minister for Immigration (2014) 220 FCR 169 at 177 ([32]) per Buchanan J agreed in by Allsop CJ and Rangiah J.
Factual Background
It is no longer in dispute that whilst continuing to press his Partner visa application on the basis that he was married to Ms Carter-Smith as her spouse under s.5F of the Act, on 6 May 2013 in India he married Ms Isha Sharma.
However, that marriage in India to Ms Sharma was firmly denied by the Applicant in the process leading up to the Second Tribunal decision of 11 January 2016 under review in this Court in the following circumstances.
On 14 April 2014 an officer of the Department of Immigration (Department) wrote to the Applicant and advised him that the Department had received information that, after marrying his sponsor Ms Carter-Smith on 7 January 2010, the Applicant had travelled to India to marry Ms Isha Sharma, and that the Applicant lived with Ms Sharma at 14/12 Early Street, Parramatta, NSW. The letter asked for a response from the Applicant.
By email of 12 May 2014 the Applicant through his migration agent denied that he had ever married another woman in India and suggested that an ex-business partner with whom he was in dispute may have falsely reported him to the Department. The email attached additional documents including a certificate dated 7 May 2014 from the Registrar of Marriages of Ferozepur in Punjab (India) confirming that there was no entry of marriage registration of Sunil Sharma held by that office.
However, on 29 July 2014 officers of the Department visited the Applicant’s parent’s home in India and conducted an interview with the Applicant’s mother and neighbours. In particular, those officers sighted a large photograph of the Applicant and a woman, bearing the caption “Isha weds Sunil on 06.05.2013” (Wedding Photograph). Further, evidence obtained by the Departmental officers from the neighbours was also consistent with the Applicant having married Ms Sharma in India, with one neighbour actually having attended the wedding. The details of the evidence obtained by the Departmental officers will be amplified below.
On 9 and 10 September 2014 the Delegate had telephone conversations with the Applicant where she put him on notice of the investigations of the Departmental officers and the discovery of the Wedding Photograph and the Applicant denied that he had married in India. The Delegate also brought PIC4020 to his attention and quoted to him the paragraph in PIC4020 concerning the provision of false and misleading information and the possibility of waiver if compelling and compassionate circumstances were found to exist. The details of these conversations between the Applicant and the Delegate are also amplified below.
Decision of Delegate
By her Decision Record of 11 November 2014, the Delegate found that the relationship between the Applicant and his sponsor, Ms Carter-Smith, was not exclusive and that the Applicant had provided false information for the purposes of PIC4020(1) and she was not satisfied that there were grounds to justify the waiver of PIC4020.
The Delegate, in her Decision Record, referred to the telephone conversation with the Applicant on 9 September 2014 and her advice to the Applicant that Departmental officers had visited his parents’ home in India, conducted an interview with his mother and neighbours, and sighted the large Wedding Photograph bearing the caption “Isha weds Sunil on 06.05.2013”. She recited that the Applicant had stated that the Wedding Photograph was not of himself but was of his cousin, and the written details were a mistake.
She further recited that the Applicant had then changed his position and admitted that the Wedding Photograph was of himself but that the female depicted was his cousin and it had been taken on the day of her engagement.
The Delegate recited that the Applicant had said that the neighbours had provided wrong information because they knew the Applicant was obtaining a permanent visa in Australia and his own family had problems with the neighbours. The Delegate recited that the Applicant had denied having provided false information and said that he had attended his cousin’s wedding.
The Delegate refused the Partner visa application for the reasons stated in paragraph 16 above.
Application for Review to the First Tribunal
On 27 November 2014 the Applicant lodged an application for review with the First Tribunal.
On 24 December 2014 the First Tribunal, by letter pursuant to s.359A of the Act, gave to the Applicant particulars of information that the First Tribunal might consider would be the reason or part of the reason for affirming the Delegate’s decision under review. The letter, although not reproduced in its terms here, refers to the Applicant as having “married” Ms Sharma after he had married his sponsor, Ms Carter-Smith, and states that Departmental officers had visited his parents’ home and conducted an interview with his mother and neighbours and that a large Wedding Photograph was sighted stating “Isha weds Sunil on 06.05.2013”. The letter required the Applicant to respond by 7 January 2015 but the Applicant did not respond.
The First Tribunal hearing was appointed for 19 January 2015 but was cancelled because the Applicant was sick.
The First Tribunal sent another s.359A letter on 5 February 2015, giving full details of the matters of concern to the First Tribunal, and again there was no response by the Applicant to that letter.
The First Tribunal decided to make a decision without a further hearing, because of the Applicant’s failure to respond to the s.359A letter of 24 December 2014, presumably under ss.359C and 360 of the Act. By its Decision Record of 25 February 2015 it recorded that it was not satisfied that the Applicant and Ms Carter-Smith were in a married relationship for the purposes of s.5F of the Act and it affirmed the decision to refuse the Applicant a Partner visa. However, the First Tribunal failed to consider the mandatory relevant considerations required by reg.1.15A of the Regulations when it found that it was not satisfied that the Applicant and Ms Carter-Smith were in a married relationship, and by consent this Court remitted the matter back for redetermination on 15 July 2015 as mentioned in paragraph 3 above.
The Second Tribunal
For the purposes of the remitted hearing the Second Tribunal again sent a s.359A letter dated 24 August 2015. Amongst other things it referred to the Wedding Photograph of the Applicant with the title “Sunil weds Isha on 06.05.2013” and the Applicant’s movement records showing that he was outside of Australia between 16 April 2013 and 29 May 2013. This letter indicated that a copy of this “big photo” was attached to it, but it is common ground that it was not. The relevant substance of the letter ended with the following paragraphs:
This information is relevant because the Tribunal may find that the allegation is true and that you had married Ms Sharma in India in May 2013. The Tribunal may find that you are in a spousal relationship with Ms Sharma and that your relationship with Ms Smith is not genuine, continuing and to the exclusion of all others. The Tribunal may not be satisfied that you are a spouse of Ms Smith, within the meaning of the Migration Act. The Tribunal may find that you do not meet the requirements for the grant of the Partner visa.
The information is also relevant because the Tribunal may find that you have given, or caused to be given, information that was false or misleading in a material particular, to an officer and the Tribunal when you claimed that your relationship with Ms Smith was genuine and to the exclusion of all others. This is relevant to cl.801.221. The Tribunal may conclude that you do not meet Public Interest Criterion PIC 4020.
The Applicant’s migration agent responded by letter dated 16 September 2015 and asked for a copy of the Wedding Photograph referred to in the Second Tribunal’s letter of 24 August 2015. This response also indicated to the Second Tribunal that the Applicant and his parents “are negotiating a settlement with the complainant Ms Isha Sharma (“Ms Isha”) and her parents in India as regards the alleged ‘marriage’ between the Visa Applicant and Ms Isha.”
A follow up letter was sent by the Applicant’s migration agent dated 22 October 2015 asking for a copy of the photo. A copy of the Wedding Photograph was sent by the Second Tribunal to the Applicant’s migration agent under cover of a letter dated 26 October 2015, as was a further letter of that date pursuant to s.359A of the Act which contained the same two paragraphs which ended the letter of 24 August 2015, reproduced in paragraph 26 above.
Then by a submission emailed on 9 November 2015, the Applicant’s migration agent responded to the s.359A letter of 26 October 2015. The letter from the migration agent asserted that the information which the Applicant had given in his original Partner visa application was correct as of 26 February 2010 but conceded for the first time that the Applicant had married Ms Sharma. It was further conceded that the Applicant had made conflicting statements to the Department from and after May 2014, but that they “were not material on the date when those statements were made by him.” It further alleged that the marriage of the Applicant and Ms Sharma was void under Indian and Australian law and asserted that there had been no genuine relationship with Ms Sharma. The email also attached an article entitled Honour Killings in India: A Study of the Punjab State.
Then by email of 16 November 2015 the migration agent sent a number of documents to the Second Tribunal, including a statutory declaration of the Applicant, which stated that he had married Ms Sharma on 6 May 2013 against his will and under pressure from his parents, and asserted that because he had already been validly married to Ms Carter-Smith, the marriage to Ms Sharma had no legal validity either in India or in Australia. He stated that Ms Sharma had come to Australia on a student visa in about October 2013, and that the Applicant worked with her at a Caltex service station in Eastern Creek, and that they were flatmates and shared accommodation at Parramatta and Penrith.
This email from the Applicant’s migration agent attached a number of documents including the following:
a)the same submissions emailed on 9 November 2016 and referred to in paragraph 29 above;
b)joint financial documentation;
c)a statement dated 5 November 2015 from the sponsor Ms Carter-Smith essentially asserting a spousal relationship with the Applicant;
d)a letter dated 4 November 2015 from the parents of Ms Carter-Smith essentially asserting that the Applicant and Ms Carter-Smith have been a couple since 2009 and had lived together;
e)a statement dated 4 November 2015 from Ms Jennifer Carter-Smith, who is the sister of Ms Carter-Smith, basically asserting that the Applicant is the husband of the sponsor and currently in a relationship;
f)a statement from Mr Muhammad Waquis dated 5 November 2015 basically asserting that the Applicant and Ms Carter-Smith were husband and wife and the Applicant was committed to Ms Carter-Smith; and
g)the same article, Honour Killings in India: A Study of the Punjab State, sent on 9 November 2015 and referred to in paragraph 29 above.
The email and the complete set of its attachments is annexure “A” to the affidavit of Ms Maddocks, affirmed 2 May 2016 (Exh “F”).
Prior to this email from the migration agent of 16 November 2015 it should also be noted that Ms Jennifer Carter-Smith had made an earlier statutory declaration dated 22 February 2010 supportive of the spousal relationship between her sister and the Applicant and on 13 January 2012 the sponsor Ms Carter-Smith had made a statutory declaration supportive of her spousal relationship with the Applicant. There had also been earlier statutory declarations of the same import from Ms Mulligan of 19 February 2010 and also of 9 May 2014 from Messrs Bhalla, Peutpal, Kaur and Singh.
The hearing before the Second Tribunal took place on 18 December 2015 when the Applicant and Ms Carter-Smith appeared and gave evidence. The Applicant was also represented by his registered migration agent. In the result, the Second Tribunal affirmed the Delegate’s decision not to grant the Applicant a Partner visa.
At the commencement of its Decision Record, the Second Tribunal identified the two main issues before it as being whether the Applicant met PIC4020 for the purpose of cl.801.226 of the Regulations, and whether the Applicant was the spouse of Ms Carter-Smith within the meaning of s.5F of the Act.
In paragraph 17 of its Decision Record the Second Tribunal stated that it placed significant weight on the result of enquiries carried out by officers of the Department which indicated that, amongst other things:
a)In India one neighbour stated that the Applicant had recently married Isha in the city of Ferozepur and the neighbour attended the wedding.
b)Another neighbour opposite the parents’ home recognised the Applicant’s photograph and confirmed that he had recently married someone named Isha.
c)Another neighbour confirmed that the Applicant had been living in Australia for the past 5 years, and worked in a fuel station and had married Isha one year before, and Isha had now gone to Australia.
d)The Applicant’s mother had been interviewed and confirmed that the Applicant had been residing in Australia for 7 – 8 years and worked at a fuel station and said that he was single and had never married, notwithstanding that there was a large photograph of the Applicant and a girl on the wall with the title “Sunil weds Isha” and the date of 6 May 2013.
In paragraph 21 of its Decision Record the Second Tribunal placed weight on the Wedding Photograph and the date of the marriage of 6 May 2013 as being within a period during which the Applicant was outside Australia according to his movement records.
At paragraph 22 of its Decision Record the Second Tribunal noted that it was not satisfied that the Department’s report of the site visit in India to the parents’ home and adjoining neighbours was inaccurate or false and it stated its view in paragraph 23 that the Applicant’s mother was not a credible witness.
The Second Tribunal’s Decision Record comprises 53 paragraphs. Suffice it to say that it is closely reasoned and logical and could not reasonably be suggested to appear capricious or unreasonable in any way.
In the result, the Second Tribunal found that the Applicant had been “utterly untruthful in his dealings with the Department in the past” and was willing to be untruthful in his dealings with the Department and to completely falsify evidence if he believed it would assist him in obtaining a visa. It found the Applicant to completely lack credibility and that his evidence was unreliable. In my view, those findings pertaining to the Applicant and his evidence were clearly open to the Second Tribunal.
At paragraph 37 of its Decision Record the Second Tribunal also found that the information which the Applicant had given in his visa application and to the First Tribunal, where he had claimed his relationship to Ms Carter-Smith was to the exclusion of all others, was false or misleading and purposely so. At paragraph 38 of its Decision Record the Second Tribunal found that there was evidence that the Applicant had given, or caused to be given, to the Minister and the Tribunal, information which was false or misleading in a material particular in relation to his visa application. The Second Tribunal was not satisfied that the Applicant met PIC4020(1).
The Second Tribunal then considered whether the requirements of PIC4020(1) should be waived because of compassionate or compelling circumstances under PIC4020(4). The Second Tribunal was not satisfied that there were such compassionate or compelling circumstances affecting the interests of Australia or of an Australian or eligible New Zealand citizen or Australian permanent resident which would justify the granting of a visa to the Applicant.
The Second Tribunal then turned to whether the requirements of a spousal relationship were met between the Applicant and Ms Carter-Smith. It stated that it was not convinced that the Applicant’s relationship with Ms Carter-Smith was genuine or exclusive and that it had formed the view that the Applicant’s marriage with Ms Carter-Smith had been fabricated to allow the Applicant to gain residence in Australia, and that his commitment was to Ms Isha Sharma and not to Ms Carter-Smith. It rejected the Applicant’s case that there was a spousal relationship with Ms Carter-Smith.
The Second Tribunal found that the Applicant had lived with Ms Sharma in Australia for about one year and that the Applicant’s explanation of this fact was unconvincing. The Second Tribunal was of the view that his decision to keep his marriage to Ms Sharma secret from the Department was because he was aware that it would affect his Partner visa outcome, and not because he did not believe the marriage to be invalid or because there was no genuine relationship with Ms Sharma. It found that the evidence suggested that the Applicant had a complete lack of credit in relation to migration matters.
In paragraph 50 of its Decision Record the Second Tribunal expressed the view that the Applicant was in a committed relationship with Ms Sharma and that his relationship with Ms Carter-Smith was not to the exclusion of all others, and it was not satisfied that the Applicant was the spouse of the sponsor. It also noted that it came to this conclusion notwithstanding the aspects of the relationship between the Applicant and Ms Carter-Smith that it was required to consider under reg.1.15A(2)&(3) of the Regulations (see paragraph 7 above).
In paragraph 51 of its Decision Record the Second Tribunal expressed the view that it was not satisfied that the Applicant and Ms Carter-Smith had a mutual commitment to a shared life to the exclusion of others or that their relationship was genuine.
Accordingly, the Second Tribunal was not satisfied that the Applicant met sub-cl.801.221(2)(c) and it affirmed the Delegate’s decision not to grant the Applicant a Partner visa.
Grounds of Review in This Court
At the hearing the Applicant who is fluent in English appeared in person without an interpreter, and Mr Knowles of Counsel appeared for the First Respondent.
The Grounds relied upon in the Application are as follows:
1.The Administrative Appeals Tribunal, Migration & Refugee Division (“Tribunal”) exceeded jurisdiction when it:
A. Formed an issue that the Applicant is not the spouse of the sponsor within the meaning of s.5F of the Act
B. Concluded in paragraph 50 that the Applicant is not the spouse of the sponsor.
C. Concluded in paragraph 37 that the information given by the Applicant to the previous Tribunal was false and misleading.
when the letters dated 24 August 2015 and 26 October 2015 required the Applicant to make submissions in writing only on the information contained in those letters and whether the Applicant does not meet PIC 4020 because of that information.
2.The Tribunal failed to consider and appreciate the following letters by independent persons:
A. A letter dated 5 November 2015 of Mr Muhammad Waquis, a flatmate of the Applicant;
B. A joint letter dated 4 November 2015 from Richard Carter Smith and Ms Judith Carter Smith, the parents of the sponsor; and
C. A letter dated 4 November 2015 from Jennifer Carter Smith, sister of the sponsor
that were attached to the Statutory Declaration dated 6 November 2015 of the Applicant and provided to the Tribunal.
3.The Tribunal erred in concluding that the Applicant was not denied natural justice by the Minister for Immigration and Border Protection (“Minister”) by not providing the photograph on which the Minister relied in telephone discussions with the Applicant in or about September 2014.
4.The Tribunal erred in concluding that Applicant’s absence from Australia is not a compassionate or compelling circumstance affecting the interests of the sponsor
5.The Tribunal erred in concluding that requirements of clause 4020(1) and (2) cannot be waived for the Applicant.
6.The Tribunal failed to appreciate that the Applicant was truthful in his evidence before it.
7.The Tribunal had made up its mind before the hearing and the Applicant apprehends bias in the decision made by the Tribunal.
In my view none of the grounds support any finding of jurisdictional error by the Tribunal or any failure to observe procedural fairness for the reasons which follow.
Ground 1
In support and amplification of this Ground the Applicant’s Written Submissions appear to suggest that he had not been sufficiently or adequately put on notice by the Second Tribunal of matters or information which might be the reason or part of the reason for affirming the Delegate’s decision under review or otherwise the subject of the Second Tribunal’s determination, and in particular that the issue of him not being married to Ms Carter-Smith was not disclosed in the s.359A letters of 24 August 2015 and 26 October 2015 and this failure was against natural justice. In his Submissions he complains that the Second Tribunal did not properly comply with s.425(1) of the Act, although I note that s.360(1) of the Act is the equivalent of s.425(1) for Part 5 Reviewable Decisions which related to the Applicant’s review by the Second Tribunal of the Delegate’s decision.
However, in truth in favour of the Applicant I consider that I should take him to be complaining that the Second Tribunal did not properly comply with s.359A of the Act and that breach constituted jurisdictional error.
In any event I consider this complaint to be quite without foundation. The fact of the matter is that the Delegate’s decision under review by the Second Tribunal had fully put the Applicant on notice of the matters which were of concern to the Delegate and were required by s.359A, as had the prior telephone conversations of 9 and 10 September 2014.
Thereafter, the Applicant had been sent by both Tribunals letters under s.359A of the Act dated:
a)24 December 2014 (see paragraph 22 above);
b)5 February 2015 (see paragraph 24 above);
c)24 August 2015 (see paragraph 26 above); and
d)26 October 2015 (see paragraph 28) above.
These letters fully and amply set out the matters of concern to the Second Tribunal, and which were ultimately the subject of determination by the Second Tribunal in its Decision Record. They clearly put the Applicant on notice that the Tribunal was concerned as to the nature of the genuineness and existence of the alleged spousal relationship between Ms Carter-Smith and the Applicant, as may be seen from the two paragraphs appearing in the s.359A letters of 24 August 2015 and 26 October 2015, reproduced in paragraph 26 above. I note that both of these letters were sent for the purposes of the Second Tribunal hearing of 18 December 2015 under review in this proceeding.
Accordingly, I do not consider there to be any substance in this Ground and I reject it.
Ground 2
This Ground is amplified by the Applicant’s Written Submissions. The Applicant argues that the Second Tribunal ignored or failed to consider evidence which was not insignificant and bore on the outcome of its review and he referred to the decision of Judge Cameron in SZQYU v Minister for Immigration (2012) 134 ALD 590 ([40]) in this regard.
The Applicant argues that the Second Tribunal failed to properly consider and take into account the statement of Mr Muhammad Waquis, the letter from the sponsor’s parents and the statement of the sponsor’s sister which had been attached to the email from the Applicant’s migration agent dated 16 November 2015 (referred to in paragraphs 30 and 31 above).
I do not accept that this argument has any substance.
First, at paragraph 14 of the Second Tribunal’s Decision Record it is expressly recorded as follows:
When making the application, the applicant stated that he was in a spousal relationship with the sponsor, Ms Smith. The applicant claims that his relationship met the statutory definition of ‘spouse’ in s.5F. That is, that his relationship with the sponsor was genuine, continuing and to the exclusion of all others. The applicant repeated these claims throughout the processing of his application and in his evidence to the first Tribunal. The applicant provided a number of documents, including statements and statutory declarations, claiming he was in a genuine relationship with Ms Smith and that his relationship was to the exclusion of all others. (emphasis supplied)
Paragraph 26 of the Decision Record commences with this sentence:
The applicant noted that he has been in the relationship with the sponsor for a number of years, that their relationship is genuine and the applicant noted that a number of documents, as well as other evidence, had been provided to the delegate and the previous Tribunal.
Then paragraph 46 of the Second Tribunal’s Decision Record commences as follows:
Having considered the applicant’s claims, the Tribunal is not satisfied that there are compelling or compassionate circumstances affecting the interests of the sponsor.
At paragraph 49 the Decision Record states:
The Tribunal acknowledges the applicant’s evidence that his relationship with the sponsor had existed for a much longer period (i.e. than with Ms Sharma) and that there is ample documentary evidence of such relationship, compared to no evidence of the relationship with Ms Sharma.
Finally at paragraph 50 of the Decision Record the following is stated:
The Tribunal is not satisfied that the applicant is the spouse of the sponsor. The Tribunal reaches this conclusion despite evidence about various aspects of the relationship, including social aspects, the financial aspects, the nature of the household and the nature of the applicant’s commitment to the sponsor. These matters do not outweigh the Tribunal’s concern.
In my view the statements in the Decision Record which I have reproduced in paragraphs 60 to 64 above establish that the Second Tribunal did read and consider the body of evidence submitted by the Applicant in support of his case, including the written evidence of the sponsor’s parents, sister and Mr Waquis and then engaged in a weighing and balancing of that evidence against the other evidence available to the Second Tribunal. I do not consider that there is any basis for me to find that the Second Tribunal was derelict in its duty of considering and having regard to the Applicant’s evidence in support of his case.
Nothing in the reasons of the Second Tribunal’s Decision Record indicates that the Second Tribunal ignored or did not take into account evidence led for the Applicant. The Applicant bears the onus of establishing that the Second Tribunal committed jurisdictional error by not having regard to significant evidence tendered by him. He has failed to establish any basis for drawing the inference that such jurisdictional error of this type was committed by the Second Tribunal: Minister for Immigration v SZGUR (2011) 241 CLR 594 at 616 ([67]) per Gummow J and agreed in by Heydon J and Crennan J.
Further, the obligation of the Second Tribunal under s368(1) does not require it to refer to every piece of evidentiary material before it. As the Full Court of the Federal Court comprised of Tracey, Flick and Griffiths JJ stated in Minister for Immigration v Truong [2016] FCAFC 54 at [80]:
No jurisdictional error is exposed in the failure of the Tribunal expressly to address all matters which could potentially affect its decision, let alone a factor created in a different statutory context and made for different purposes: cf. Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 at [9] to [10] per Gleeson CJ; at [77] per McHugh, Gummow and Hayne JJ; [2001] HCA 30; (2001) 206 CLR 323 at 331 to 332 and 349. It is not necessary for the Tribunal “to refer to every piece of evidence and every contention made by an applicant in its written reasons”: WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184 at [46], (2003) 75 ALD 630 at 641 per French, Sackville and Hely JJ.
Before leaving this Ground I should note that the Applicant did not tender in support of this Ground or any other Ground the transcript of the hearing before the Second Tribunal on 18 December 2015. In this regard, the Consent Orders of the Court of 26 February 2016 provided that evidence of the Tribunal hearing was to be presented by any party as a transcript verified by affidavit. My associate’s email to both parties of 29 April 2016, which signified my consent to an agreed amendment to the procedural timetable and is Exhibit G in this proceeding, stated in part as follows:-
It is conceivable that, having regard to the grounds relied upon by the Applicant, reference to the transcript of the Tribunal hearing might be either necessary or appropriate.
If the applicant considers that to be so, it should be understood that the responsibility lies upon him to arrange for the typing up, filing and serving of such transcript.
In my view, Ground 2 fails.
Grounds 3 and 6
In amplification of Ground 3 (extracted at paragraph 49 above) the Applicant in his Written Submissions complains that he was not able to respond properly to the Minister, and presumably the Delegate, because he had not been provided with a copy of the Wedding Photograph. The first problem with these Grounds is that I am reviewing the Second Tribunal’s Decision Record of 11 January 2016. By the time of the Second Tribunal hearing on 18 December 2015 the Applicant had been in a possession of a copy of the Wedding Photograph, since it had been forwarded by the Second Tribunal to his migration agent by letter dated 26 October 2015 as mentioned in paragraph 28 above.
However, there is a far more radical problem with Grounds 3 and 6. The argument in support of these Grounds seems to expose a fundamental misunderstanding by the Applicant of the necessity to give correct, truthful and honest evidence to the Department, the Minister, the Delegate and both Tribunals at all points during the processing of his application for a Partner visa and in this respect see ss.99, 101 and 103 to 105 of the Act. Further, at section 96 of his Partner visa application he had declared that he would inform the Department of any changes to his personal circumstances while his application was being considered.
The Wedding Photograph was first raised with the Applicant in the telephone discussion with the Delegate on 9 September 2014 when she told him the caption on it read “Isha weds Sunil” with the date of the wedding. He responded that he did not have any wife and the girl sitting with him was his cousin and that the Wedding Photograph was from her engagement. That telephone discussion with the Delegate clearly alerted the Applicant to a physical piece of evidence which was of great significance to his Partner visa application and which at the very least had a tendency to militate against his claim to “have a mutual commitment to a shared life as husband and wife” with Ms Carter-Smith “to the exclusion of all others”. As he was depicted in the Wedding Photograph and he knew that he had indeed married Ms Sharma in India on 6 May 2013, as he now admits, the significance of the Wedding Photograph must have been very obvious to him.
Then on 11 November 2014 the Delegate’s decision specifically referred to the visit by the Departmental officers to his parents’ home in India, citing the large Wedding Photograph (see paragraphs 17 to 19 above). Subsequently, the s.359A letters of 24 December 2014 and 5 February 2015 specifically gave particulars of the Wedding Photograph and its caption. The s.359A letter of 24 August 2015 also gave particulars of the Wedding Photograph and purported to attach it, although presumably inadvertently, it was not so attached. The Applicant’s migration agent asked for a copy of the Wedding Photograph and that was forwarded under cover of the Second Tribunal’s letter of 26 October 2015 as mentioned at paragraphs 28 and 69 above. It was only at that point that the Applicant was prepared to admit that he had become engaged to Ms Sharma in or about December 2012 and had in fact married her on 6 May 2013, as was admitted in the submission attached to the migration agent’s emails of 9 November 2015 and 16 November 2015 (see paragraphs 29 and 30 above).
In these circumstances it is a nonsense for the Applicant to suggest that somehow the Minister has treated him unfairly by not providing him with a copy of the Wedding Photograph at an earlier point of time and that this failure meant that the Applicant did not have a meaningful opportunity to respond. The Applicant has known at all times since 6 May 2013 that he had gone through a marriage ceremony with Ms Sharma and that they were the subjects of the Wedding Photograph. Unfortunately, it appears as though the Applicant has never understood his obligation to be truthful in connection with his Partner visa application. In his affidavit read in this Court and sworn on 3 February 2016 (Exh “B”) he actually stated in paragraphs 4 and 7 as follows:
4. I was not provided a copy of the photograph that the Delegate relied upon while having telephone discussion with me in or about September 2014. I had no idea about the photograph that the Delegate was discussing about. If the Delegate had confronted me by showing the photograph I would have been truthful in my statement to the Delegate.
…….
7. After seeing that photograph, I was truthful in my submissions before AAT.
At the conclusion of the hearing I considered that as a matter of fairness I should give the Applicant an opportunity to comment about paragraphs 4 and 7 of his affidavit of 3 February 2016 but he declined to do so.
As Mr Knowles correctly stated in paragraph 27 of his Written Submissions:
The Applicant’s obligations to provide a truthful response to the Delegate’s enquiry (i.e. about the photo) did not depend on him being confronted with photographic evidence establishing the falsity of the information that he had previously provided.
Grounds 3 and 6 have no substance and must be dismissed.
Grounds 4 and 5
Grounds 4 and 5, as they appear in the Application, relate to waiver of PIC4020. However, these Grounds as dealt with in the Applicant’s Written Submissions seek to invoke in this Court a merits review of the Second Tribunal’s decision concerning whether Ms Carter-Smith was in truth the spouse of the Applicant. Such a merits review is impermissible in this Court.
Turning back to the Grounds as they appear in the Application, I cannot ascertain any jurisdictional error in the approach of the Second Tribunal to its consideration of PIC4020 and whether it should waive its requirements. First, the Second Tribunal found, after having reviewed the relevant evidence, that the Applicant had given or caused to be given information that was false or misleading in a material particular in relation to his application for his Partner visa and accordingly it was not satisfied that the Applicant met PIC4020(1) (see paragraphs 37 and 38 of the Second Tribunal’s Decision Record). There was abundant evidence to justify the Second Tribunal’s finding in that regard.
Then the Second Tribunal at paragraphs 40 to 47 of its Decision Record considered the issue of waiver under PIC 4020(4). The Second Tribunal had to be satisfied that there were compelling or compassionate circumstances under PIC4020(4) and it is not for this Court to substitute a different judgment about that issue. That decision was reposed in the Second Tribunal and it appears to me that the factors which it considered in coming to a view on this issue were open to it and that it did not take into account impermissible matters and factors.
It is clearly established by the authorities that for circumstances to be “compelling” so as to justify the granting of a visa the Tribunal must find circumstances which “force or drive” it “irresistibly” to be satisfied that waiver ought to be granted. In a slightly different but still relevant context Gageler J said in Plaintiff M64/2015 vMinister for Immigration (2015) 327 ALR 8 at 23-24([64]) as follows:
[64] A statutory requirement that a decision-maker arrive at a state of satisfaction as a precondition to an exercise of a statutory power, like a requirement that a decision-maker hold a belief as a precondition to an exercise of a statutory power, necessitates that the decision-maker “feel an actual persuasion”[1] – “an inclination of the mind towards assenting to, rather than rejecting, a proposition”[2]. A statutory requirement that a decision-maker be satisfied that there are “compelling reasons” for taking particular action is a requirement that the decision-maker be persuaded that there are reasons in favour of taking that action which, when weighed within the context of the particular statutory scheme, are irresistible[3].
1 Briginshaw v Briginshaw (1938) 60 CLR 336 at 361; [1938] HCA 34.
[2] George v Rockett (1990) 170 CLR 104 at 116; [1990] HCA 26.
[3] Babicci v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 141 FCR 285 at 289 [21]-[24].
It was also open to the Second Tribunal to find that there were “compassionate circumstances” that would justify the granting of the Partner visa but having reviewed the relevant factors it decided that there were no “compassionate circumstances”. I cannot discern any jurisdictional error in the Second Tribunal’s failure to be satisfied that PIC4020(1) should be waived and Grounds 4 and 5 are accordingly rejected.
Ground 6
This Ground invokes a merits review of the Second Tribunal’s findings in connection with the Applicant’s credibility but this was a matter for the Tribunal par excellence: Re Minister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407 at 423.
Ground 6 must therefore fail.
Ground 7
The Applicant conceded in his Written Submissions that he was not in possession of a transcript of the Second Tribunal hearing to argue on this Ground. Nevertheless, he asserted that he was of the view that the Second Tribunal had already made up its mind to reject his Partner visa application.
Actual or apprehended bias are matters that go to procedural fairness and the denial of procedural fairness on the part of an administrative tribunal, such as the Second Tribunal, may result in jurisdictional error justifying an order that a decision be set aside: Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at 91 per Gaudron and Gummow JJ; Minister for Immigration and Citizenship v Li & Anor (2013) 249 CLR 332 at 357 ([48]).
I infer that the form of bias alleged by the Applicant in Ground 7, although described as apprehended, is actual bias in the form of prejudgment. This form of actual bias was described by Gleeson CJ and Gummow J in Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 532 as follows:
The state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented.
A finding of actual bias is a grave matter: Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 at 127 per Burchett J. As the New South Wales Court of Appeal said in South Western Sydney Area Health Services v Edmonds [2007] NSWCA 16 at [97]:
[97]The appellant alleges that the Arbitrator displayed actual, not apprehended, bias. A party asserting actual bias on the part of a decision maker carries a heavy onus. The allegation must be "distinctly made and clearly proved": Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at [69] per Gleeson CJ and Gummow J and [127] per Kirby J; SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 at [36] per von Doussa J. A finding of actual bias should not be made lightly; cogent evidence is needed: Sun Zhan Qui v Minister for Immigration and Ethnic Affairs [1977] FCA 1488; (1997) 81 FCR 71 at 123 per Wilcox J; a finding of bias is a grave matter: ibid (at 127) per Burchett J.
The test of actual bias in the form of prejudgement requires an assessment of the state of mind of the judge in question: Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427 at 437-438 ([33]).
In my opinion there is no basis for any claim by the Applicant that he has suffered from actual bias or indeed for completeness that there could be any reasonable apprehension of bias in connection with the decision of the Second Tribunal.
First, the Second Tribunal’s Decision Record on its written face does not indicate or demonstrate any prejudgment or actual bias or give rise to any reasonable apprehension of bias on the part of the MRT member: SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38].
Second, the transcript of the Second Tribunal hearing on 18 December 2015 is not in evidence before me and therefore there is no basis for any inference of bias from the circumstances of that hearing.
In my opinion, there is not a skerrick of evidence that the Second Tribunal member was biased against the Applicant’s Partner visa application, or had in any way prejudged the matter.
Accordingly, Ground 7 must be dismissed.
Conclusion
The Applicant fails on all grounds. The Second Tribunal committed no jurisdictional error or breach of procedural fairness and the Applicant has not suffered any practical injustice.
The Application must be dismissed with costs in an amount to be determined.
I certify that the preceding ninety-six (96) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Date: 8 November 2016
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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