Shaw v Minister for Immigration

[2019] FCCA 579

FEDERAL CIRCUIT COURT OF AUSTRALIA

SHAW & ANOR v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 579

Catchwords:
MIGRATION – Review of administrative appeals decision – whether decision affected by jurisdictional error – jurisdictional error not established – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.359; 359AA

Migration Regulations 1994 (Cth), reg.1.15A

Cases cited:

HE v Minister for Immigration and Border Protection [2017] FCAFC 206

First Applicant: TIFFANY DIANNE SHAW

Second Applicant: JASWANT SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 1219 of 2017

Judgment of: Judge Vasta

Hearing date: 18 February 2019

Date of Last Submission: 18 February 2019

Delivered at: Brisbane

Delivered on: 18 February 2019

REPRESENTATION

Counsel for the Applicants: Mr S. Fisher

Solicitors for the Applicants: Australink Alliance Lawyers & Migration Consultants

Counsel for the First Respondent: Mr J.D. Byrne

Solicitors for the First Respondent: Clayton Utz

ORDERS

1. That the Application filed 11 December 2017 is dismissed.

2. That the Applicants’ pay the costs of the First Respondent fixed in the sum of $7,467.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 1219 of 2017

TIFFANY DIANNE SHAW

First Applicant

JASWANT SINGH

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

1. On 21 November 2017, the Administrative Appeals Tribunal (“the AAT”) affirmed a decision of the delegate not to give the visa Applicant a partner visa.  The sponsor of the visa Applicant, having received that decision on 21 November, filed in this Court, on 11 December 2017, an originating application asking this Court to review the decision of the AAT.

2. The background to this is that the visa Applicant was born in Haryana province in India in 1993.  He still lives there and has never come to Australia.  The sponsor was born in Meadowbrook, Queensland in 1994 and is an Australian citizen by birth.  She has a son who was born in 2010 who has a disability in the autism spectrum.

3. On the evidence before the Tribunal, it would seem that the Applicant and the sponsor first established contact in September 2014 through Facebook.  The sponsor had been acquainted with the brother of the visa Applicant.  That brother had arrived in Australia in 2008 on a student visa.  The brother was still in Australia working in Dalby as a cook at the time of the application.

4. The sponsor said that she was looking for a loyal partner at the time and that the brother of the Applicant recommended and showed the sponsor photos of his brother.  The sponsor went to India.  In that visit the sponsor and the visa Applicant agreed to marry.  They did marry on 14 May 2015 and a partner visa application was lodged on 22 September 2015.

5. All in all, it seems that the sponsor has travelled to India on eight different occasions. The first from 3 to 19 March 2015; the second from 9 to 27 May 2015; the third from 24 September to 21 October 2015; the fourth from 29 November to 22 December 2015; the fifth from 14 April to 10 June 2016; the sixth from 3 to 27 August 2016; the seventh from 11 to 31 October 2016; and the eighth from 26 February to 14 March 2017.

6. The evidence is that the sponsor stayed with the Applicant’s family and toured places in India with the Applicant and members of his family.  The Tribunal noted that the Applicant had made applications for visitor visas on two occasions, but the applications have been refused. 

7. The real question here was whether or not the sponsor and the Applicant were in a genuine relationship at the time of the application and at the time of the decision. 

8. There was no doubt that the Applicant and the sponsor had been validly married, however, that was only part of the matter. The Tribunal, in this case, was tasked with the duty to assess the genuineness of the relationship pursuant to s.5F of the Migration Act1958 (Cth) (“the Act”) and reg.1.15A of the Migration Regulations 1994 (“the Regulations”) and, more importantly, the 15 matters in reg.1.15A(3).

9. The Tribunal spoke of the financial aspects of the relationship.  They noted that there have been a number of money transfers. One of $9,600 on 13 August 2015 from the Applicant to the sponsor and two, of $200 in July and December 2015 from the sponsor to the Applicant.  The visa Applicant confirmed at the hearing that the large amount $9,600 was to pay for his visa application and his migration agent costs. 

10. He said that he has not sent money to the sponsor for any other purpose and the sponsor said that she has not sent money to the Applicant other than those two transfers which were for the Applicant to purchase some personal gifts for himself, notwithstanding that she was unemployed, and he was employed and living with his family at the time.

11. Both the sponsor and the Applicant confirmed that the Applicant’s family in India own a farm of significant size and a pesticide business.  The Tribunal had asked the Applicant why he did not support his wife financially and he said that because she was getting money from the government, he did not need to support her and that the sponsor’s father was supporting the sponsor and her child, so he did not feel any need to do anything other than that. 

12. He said that he had offered to send money to the sponsor, but she declined his offer.  The sponsor was asked about this and she said that she did not feel comfortable taking the Applicant’s money and that she was able to support herself and her son on her Centrelink benefits.

13. The written submission that the parties’ agent has given to the Tribunal did not vary that much from what had been said, however, it did point out that the sponsor believes that her father-in-law had declared that she would also be a co-owner in the assets and businesses owned by him (that is the father-in-law) when the two sons inherit the ancestral property and business.

14. The Tribunal asked about what would happen when the Applicant came to Australia and the sponsor explained that there was going to be a trucking courier business set up and that she would be part of that business.  The Tribunal asked the sponsor who paid for the parties’ touring trips in India because the evidence was they had gone to places such as the Taj Mahal, the Golden Temple, Rajasthan, the Himalayas and visits to a number of other cities. 

15. The sponsor said that the Applicant and his father paid for this.  The Tribunal then asked the sponsor who paid for the airfares to and from India and she said that the Applicant’s brother and father paid for most of them, but that she had paid for one or more but she could not remember which ones and how many. She said that she had saved at the rate of $20 per week from her Centrelink payments to go towards her airfares.

16. The Applicant was asked the same question and he said that his family had not paid for the trips to India.  He said that the first trip was paid for by his family through his brother, but the airfares for the other seven trips were all paid by the Applicant.  He was asked how he thought she could afford this because she was unemployed and he stated that she got money from the government.  The sponsor then told the Tribunal that she had obtained airfares from the Applicant’s father through the brother, but this had been done without the Applicant’s knowledge. 

17. The Tribunal asked the sponsor why she would not expect her husband to support her financially and pay her airfares, because she described the family as being wealthy. She said that she would not feel comfortable taking the Applicant’s money and stated that she was not interested in his financial situation, and she said that the Applicant must have assumed that she receives more in benefits than she does when he claimed that, she, herself had paid for the seven return airfares. 

18. The sponsor provided the Tribunal a copy of the submission provided by the Applicant in support of his visa application earlier that year saying that if he had come to Australia as a visitor, he would not be relying upon his wife at all.

19. The Tribunal then looked at the nature of the household and spoke of what had happened to the sponsor when she had visited the family home in India.  The submission had been that on the first occasion she was somewhat pampered.  Everyone else was speaking Punjabi and they could not speak English and the sponsor did not speak English and she was not really allowed to get involved with the day-to-day goings on because she was a newly-wedded daughter. 

20. But the agent then submitted that, as the sponsor kept coming to India, she became more involved and the submission went on to say that the sponsor had learned to cook a few Indian dishes and had learnt the Punjabi language so that she was able to talk and converse with her in-laws and the extended family and family and friends who could not speak English.

21. The Tribunal asked the sponsor to describe one of her trips in India, either to Rajasthan or Taj Mahal through the interpreter, so that he could gauge, it would seem, the level of her ability to speak in Punjabi.  The sponsor then revealed she had learnt a few words and phrases to do with greeting people and cooking, but she had not in fact learnt the Punjabi language. 

22. The sponsor advised that on her more recent visits to India she helped the Applicant’s mother with cooking despite there being no expectations that she would do so.

23. The sponsor confirmed that her trips to India were only of two to four weeks duration apart from one longer trip of seven weeks and this was because she would be away from her son.  She did not want to take her son with her to India because his autism made it stressful for him to travel and she also believed that India was polluted and dirty and she did not want to expose her son to the risk of illness.

24. The Tribunal looked at the social aspects of the relationship and saw that there were photos of what was called the “court wedding” where the sponsor had donned a Punjabi suit and there were three witnesses, one of whom was the Applicant’s father.  The Tribunal noted that there were a number of reasons provided by the parties as to why they did not have the sort of traditional wedding that might be expected when the first son within a traditional and religious family married.

25. The sponsor said that she wanted a marriage certificate which was not possible from a traditional Sikh wedding.  She explained that the intercultural relationship would be frowned upon in the Applicant’s community, that the sponsor’s parents were too busy with work and babysitting to be able to come from Australia and so it was not worth it, and that the sponsor had paid for the wedding from her pocket so she was not going to have a big party.  She also said if they forgot to invite any family member there would be social repercussions.

26. At the hearing the sponsor then acknowledged that the Applicant’s brother and father had in fact paid for the wedding, and she had not contributed anything.  The visa Applicant himself said that up to 15 of his family members attended the marriage ceremony but they were not permitted into the registry office, so that the photos only show the parties with the witnesses.  The Applicant said that there was a reception that was held with family members following the marriage, but there were no photos provided.

27. The Tribunal had regard to a number of statutory declarations that were provided by acquaintances of the sponsor declaring that she had told them that she was in a relationship and they had witnessed her talking to the husband over the phone or via an internet video application and there are a number of photos also provided of the Applicant and the sponsor together in India.

28. The Tribunal then looked at the nature of the commitment to each other.  The Tribunal asked the parties how they could arrive at a decision to meet with a view to marriage through only Facebook contact and WhatsApp messaging.  The sponsor acknowledged that the Applicant did not speak English at this time, but she used a translation application and that she was looking for a loyal partner and that the brother of the Applicant had vouched for the Applicant.

29. The Applicant said that he liked what the sponsor said to him via the translation application and that it was a dream of his to marry a white girl.  The parties have spent less than six months cumulatively in the same country the Tribunal noted.  The sponsor said, at the hearing, that she had fallen love with India and wanted to stay longer on all her trips, but had to return to Australia to care for her son.  She subsequently claimed that India is polluted and dirty and she became ill on her last trip and was reluctant to travel there again without a support person.

30. She had claimed, through the written submissions given by the agent, that if she did not have a genuine application, then why would she take all the pains and efforts to adjust in an environment which is completely different and alien to her upbringing. She said that she was prepared to go to live in India for a year if that would convince decision‑makers to give the Applicant a visa.

31. There were a number of messages that were printed out and the Tribunal had regard to those as well as a number of photos.  What was significant though, was that there were lengthy statements of relationship that were undated and unsigned purporting to be from the sponsor.  Those documents appear to have been written by a native Punjabi or Hindu speaker and not the sponsor.

32. The Tribunal asked the sponsor whether the Applicant had arranged for them to be written by an agent in India and the sponsor said that she had written all the documents, that purported to be from her, herself.  The Tribunal went through a number of excerpts from these statements.  The sponsor maintained that she had written all of those statements, purporting to be from her, herself. 

33. The Tribunal read from a document prepared purportedly by the sponsor’s mother in support of the Applicant’s application for a visitor visa earlier that year.  That statement read:

    I am defiantly [Sic] sure that my husband and I will put on Barbeques and Dinners for them every weekend to enjoy with the family…  I apologise to them both for my husband and I absences on their marriage date of 14/05/15, I’m pretty sure that’s why they did not bother a bigger function which I’m sorry for that… My in laws have gifted (the applicant’s) return ticket as our anniversary gift and they want that we are together on this occasion.

34. The Tribunal also read from a document purportedly prepared by the sponsor for the same purpose which read:

    After my marriage, I visited my husband and my in-laws eight times and travelled almost the whole of India with my Husband and his family for fun, like Taj Mahal…

35. and a number of other things:

    … My mum and dad in law have always showered and showed so much love and affection, I feel as if I have been loved and pampered by them as if I am their own daughter.  I wish from the bottom of my heart that they could also join my husband and we could celebrate our anniversary with both our families.  My in laws have gifted (the applicant’s) return ticket as our anniversary gift and they want that we are together on this occasion.

36. Both the sponsor and the mother maintained throughout repeated questioning that they wrote those documents themselves.  They argued and provided, in the form of one of the Facebook messages from the sponsor, that the sponsor has poor written English skills.  When the Tribunal pointed out that the documents contained an identical sentence which did not make sense coming from the sponsor’s mother, the sponsor’s mother stated that their separately prepared documents must have got mixed up together when they were still at the email stage.

37. When the Tribunal subsequently asked the Applicant who had prepared those documents purportedly written by the sponsor, he said that he and his sister prepared the documents in India and, if the sponsor happened to be in India when they were working on them, they sought her assistance. 

38. The sponsor also talked of the difficulties that she has in Australia. 

39. The Tribunal considered all of that evidence from those four areas and came up with findings.  The findings were that the lack of financial support and sharing between the parties was not commensurate with their claim to have been in a genuine spousal relationship; the explanation for the low-key wedding was weak and unconvincing; that the marriage was organised for the purpose of the visa application rather than as a social ritual and demonstration for family, friends and the community; that the sponsor and her mother were unreliable witnesses. The Tribunal did not accept the sponsor’s claim to be in a genuine spousal relationship with the Applicant.

40. The Tribunal found that the evidence of the relationship, including the written statements, were arranged and contrived along with the parties’ marriage by the Applicant and the family for the purpose of a visa application.  The Tribunal did not find that the parties have a mutual commitment to a shared life to the exclusion of others or that they were in a genuine and continuing relationship.  Therefore, they did not satisfy the requirements and the decision was affirmed.

41. The grounds of this application were some 10 grounds and had very little specificity.  I will read them all into the record.

    1. The tribunal failed to properly conduct a review for the purpose of implementing Part 5 and/or ss 348 and 349 of the Migration Act 1958.

    2. The tribunal failed to provide proper reasoning or reasons and/or proper findings on facts for concluding that the relationship between the parties was contrived and, hence further failed to properly conduct the review it must undertake under ss 348 and 349 of the Migration Act 1958;

    3. The tribunal failed to comply with under s 359A or 359AA of the Migration Act 1958.

    4. The tribunal failed to properly interpret and apply, Reg 1.15AA of the Migration Regulations 1994 and/or 5F of the Migration Act 1958;

    5. The tribunal’s decision was an improper exercise of power.

    6. The tribunal failed to take relevant considerations into account.

    7. The tribunal took irrelevant considerations into account.

    8. The tribunal’s decision was unreasonable.

    9. The tribunal’s decision involved an error of law.

    10. The decision was otherwise unlawful.

42. In written submissions that were filed in this Court in October 2018, the grounds were somewhat explained.  Grounds 1 and 2 were, as it were, a combined ground.  What was argued there, and has been argued again today by Mr Fisher who appears for the Applicant, is that there was no pathway of reasoning and no real basis to demonstrate the conclusions that had been made by the Tribunal.

43. What has been said is that the paragraphs that outline the findings, paragraphs 41 to 45, have a disconnected reasoning.  Having had that sort of disconnected reasoning, therefore, it is said that the Tribunal has failed to do its job.

44. The problem is that one cannot look at those paragraphs in a vacuum.  They are paragraphs that are conclusions made by thoroughly going through the evidence that was before the Tribunal. 

45. It has been argued that the first two sentences of paragraph 42 are disconnected. The first sentence:

    The Tribunal acknowledges that the parties live in different countries…

    And the second sentence being:

    …Nevertheless the Tribunal finds the lack of financial support and sharing between the parties (apart from the payment by the applicant and his family of expenses associated with obtaining a Partner visa, including the sponsor’s trips to India), to be not commensurate with their claim to have been in a genuine spousal relationship for two and a half years.

1. It is submitted that there is no pathway of reasoning to show how the second sentence follows from the first.  However, one must consider what the Tribunal has talked about here, the evidence before it really was that the husband had contributed nothing as far as finances are concerned, considering that he is living with his parents; is engaged as part of a business; is employed; and, his wife is unemployed.

2. One could quite easily understand why the Tribunal has said that there is a lack of financial support and sharing between the parties. That lack of financial support and sharing the Tribunal has been found not to be commensurate with the claim to have been in a genuine spousal relationship for two and a half years.  It does not seem to me that there is any disconnect at all.

3. Paragraph 43, the first sentence is:

   The Tribunal further found the parties’ explanations for their low-key wedding, held on the sponsor’s second two-week trip to India, to be weak and unconvincing… 

4. The next sentence is:

   …The Tribunal finds that the marriage was organised for the purpose of the applicant’s visa application rather than as a social ritual and demonstration before family, friends and community that the parties were entering into a committed spousal relationship.

5. Again, the submission is that there is no logical connection between the two sentences.  However, looking at the matter as a whole, the Tribunal has spoken quite thoroughly and candidly about the wedding; that it was not done traditionally; that the parties were inconsistent in their evidence as to who paid for the wedding; there are no photos of a wedding reception; and, that there are only, it would seem, five people in the wedding photo.  It is quite easy to see why the Tribunal found that such evidence was weak and unconvincing.

6. If the Tribunal does not accept the reasons for the low-key wedding, it follows that the Tribunal can make the inference that it did make that the marriage was, in effect, a sham.  There is a logical connection between the two sentences. 

7. The decision in HE v Minister for Immigration and Border Protection [2017] FCAFC 206 is one where the Court has said that the Tribunal must engage in making their decision with all 15 aspects of reg.1.15A.

8. However, given what the Tribunal has said about matters as a whole, it may be that some of those considerations can be easily inferred rather than have a need to be expressly detailed in the written judgment. 

9. As the Court there said at paragraph 79:

   … The making of a decision involves a mental process. The written statement functions as a record of the Tribunal’s reasons for making its decision. Those reasons provide evidence of the mental process engaged by the Tribunal. If the written statement does not set out a finding concerning any of the prescribed matters set out in reg. 1.15A(3) in Roman numerals, it may (but will not necessarily) lead to an inference that the Tribunal member made no such fining as part of his or  her mental process when making the decision….

   The process of consideration is a mental one.  The process of giving reasons is a different one where it records what it is that the Tribunal has found to be most relevant.

10. It is said that there has not been consideration of all five subheadings under financial aspects of the relationship.  The five subheadings being:

    (i) any joint ownership of real estate or other major assets; 

    (ii) any joint liabilities; 

    (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; …

    were matters that may not have been specifically mentioned, but given the finding that the Tribunal made as to a sham arrangement, it would seem to mean that it can be inferred that the Tribunal did not accept that there was, and nor was there claimed, any joint ownership of real estate, any joint liabilities, any legal obligation in respect of one to the other, nor was it claimed that there was any sharing of day-to-day household expenses.

11. In fact, any financial dependency was denied because the sponsor said that she did not feel right taking his money and the Applicant said that he did not need to give her money because the government was supporting her, and her father was helping her with the son.  There had certainly not been any pooling of financial resources because each of them had different stories as to who paid for what.

12. It seems to me that there has been an act of engagement in reg.1.15A(3)(a), the financial aspects of the relationship.

13. Regulation 1.15A(3)(b), the nature of the household, those three aspects are:

    (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 

14. All of those were considered by the Tribunal. There was specific mention made of the fact that the child of the sponsor would not go to India and that the Applicant believed that the father, that is the grandfather of the child, was supportive. 

15. The living arrangements were considered by the Tribunal and the sharing of responsibility for housework was discussed as to what the sponsor actually did when she came to the house, so I am satisfied that the Tribunal has engaged with regard to the matters within reg.1.15A(3)(b).

16. Regulation 1.15A(3)(c) are the social aspects of the relationship.  Those three aspects are:

    (i) whether the persons represent themselves to other people as being married to each other; and

    (ii) the opinion of a person’s friends and acquaintances about the nature of the relationship;  and

    (iii) any basis on which the persons plan and undertake joint social activities.

17. Each of those was considered by the Tribunal.  The Tribunal had regard to the fact that the Applicant and the sponsor have said that they are married, that they have represented to their friends and family that they are married and the statutory declarations that had been received, and those declarations talked of their opinion as to the nature of the relationship. 

18. The Tribunal looked at the basis upon which the Applicant and sponsor might plan to run businesses and such, if the Applicant were to come to Australia.  So I am satisfied that the Tribunal has, in fact, looked at the social aspects of the relationship. 

19. The final matter under reg.1.15A(3)(d) is the nature of the persons’ commitment to each other including:

    (i) the duration of the relationship; and

    (ii)  the length of time to which they have lived together; and 

    (iii) the degree of companionship and emotional support that they draw from each other;  and

    (iv) whether the persons see the relationship as a long- term one.

20. Given the findings that the Tribunal has made that this was a sham relationship, it is evident then, whilst not specifically mentioned, that the Tribunal has brought its mind to bear and considered all four aspects.  Therefore, with regard to grounds 1 and 2, I am not satisfied that a jurisdictional error has been illustrated.

21. Grounds 5, 6, 7 and 8 were to be looked at together and that really came down to the submission here that, on all of this evidence, there was simply a plethora of evidence that would illustrate that this was a genuine relationship, but the Tribunal ended up ignoring that evidence and coming to its own conclusions that were not supported on the evidence.

22. Having gone through what it is that the Tribunal has found, it is my view that the Tribunal has made valid conclusions on the evidence that was before it.  That is, it is not whether I, putting myself in the shoes of the decision-maker would have made the same finding, nor is it whether anyone else putting themselves in the shoes of a decision‑maker would have made the same findings.  The question is whether the findings that were made by the Tribunal could have been made, not whether they should have been made.

23. Having regard to all of the facts there, it seems to me that there was certainly a logical pathway of reasoning. There was no improper exercise of power. The Tribunal did take every relevant consideration into account and did not take any irrelevant consideration into account.  Given that there was evidence for the findings that had been made, it cannot be said that the Tribunal’s decision was unreasonable in that it lacked logic. It seems to me that those grounds have not been made out.

24. Grounds 9 and 10 were not separately pressed.  Grounds 3 and 4 were not written about in the original submissions.  The submissions that were handed up to me today do speak of ground 3 in an oblique way and ground 4 as well. 

25. It seems to me with regard to ground 4, that this ground really was part of grounds 1 and 2 in that I have looked at whether reg.1.15A had been properly interpreted and applied. I found that it was so there is no merit in ground 4.

26. Ground 3, there was nothing that was really said that could have been a failure to comply with s.359AA.

27. What that means is that the Tribunal must, if it has information that would cause the Tribunal to be more likely to affirm the decision that has been, in effect, appealed, then it must as a matter of fairness put that to the Applicant.  The information that the Tribunal put to the Applicant was that the statements of the mother and the sponsor seemed to have been written by someone else.  The Tribunal put that to the sponsor at the beginning of the hearing as one can see from paragraph 5 of the decision.

28. What is written today is that in regard to the visa applicant, the Tribunal did not obtain information during the hearing and so failed to comply with s.359 and s.359AA. That is not what s.359AA is all about. Ground 3 has not been made out.

29. It seems to me then on a review of the totality of this decision it cannot be said that there has been any jurisdictional error established. 

30. I therefore dismiss the application with costs in the sum of $7,467.

I certify that the preceding seventy-five (75) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date:  13 May 2019