Sin v Minister for Home Affairs

[2018] FCCA 3282

FEDERAL CIRCUIT COURT OF AUSTRALIA

SIN v MINISTER FOR HOME AFFAIRS & ANOR [2018] FCCA 3282

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Partner (Residence) (Class BS) visa – whether the Tribunal failed to take into account the applicant and the sponsor’s commitment to each other since the time that the applicant came to Australia and married in February 2012 –  jurisdictional error made out – writs issued.

Legislation:

Migration Act 1958 (Cth), ss.5F, 476

Migration Regulations 1994 (Cth), 1.15A

Applicant: MUN HUE SIN

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1724 of 2018

Judgment of: Judge Street

Hearing date: 13 November 2018

Date of Last Submission: 13 November 2018

Delivered at: Sydney

Delivered on: 13 November 2018

REPRESENTATION

Counsel for the Applicant: Ms T Baw

Solicitors for the Applicant: Craddock Murray Neuman

Counsel for the Respondents: Mr P Knowles

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. Grant leave to the Applicant to rely upon the amended application dated 4 September 2018.

2. A writ in the nature of certiorari is issued calling up the record of the Administrative Appeals Tribunal and quashing the decision dated 16 May 2018.

3. A writ in the nature of mandamus is issued requiring the Second Respondent to determine the review application for a Partner (Residence) (Class BS) visa according to law.

4. The First Respondent pay the Applicant’s costs fixed in the amount of $7,328.00.

DATE OF ORDERS: 13 November 2018

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1724 of 2018

MUN HUE SIN

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 16 May 2018 affirming a decision of the delegate not to grant the applicant a Partner (Residence) (Class BS) visa. 

2. The applicant is a national of South Korea born in 1934 and applied for the visa on the basis of his relationship with the sponsor on 22 June 2012. The parties were first married in 1959 for approximately 15 years and had three children together. The applicant visited Australia in 2011 and the relationship allegedly rekindled and they married in February 2012. 

3. The grounds in the amended application are as follows:

   1. The second respondent (the Tribunal) erred by failing to take into account the applicant and the sponsor's commitment to each other since the time that the applicant came to Australia and they married in February 2012.

   Particulars

   i. The Tribunal referred to their relationship since their initial marriage in Korea around 60 years ago, but did not consider the most recent duration of their relationship, since it was rekindled about 6 years ago.

   ii. It failed to consider the degree of companionship and emotional support that the persons draw from each other, particularly since their recent marriage.

   iii. It failed to consider whether the persons see the relationship as a long-term one, particularly since their recent marriage.

   iv. It failed to consider that the applicant is 84 years old, lives with the sponsor, relies on the sponsor and has been diagnosed with progressive dementia.

   2. The Tribunal erred by failing to take into account that the applicant and the sponsor represented themselves to an official body, the Metro Community Housing, that they were a married couple in it consideration of the social aspect of their relationship.

   Particulars

   i. The Tribunal considered the two letters from Metro Community Housing in respect of the nature of the household, and found that it reflected a spousal relationship.

   ii. However, the Tribunal failed to consider the aforementioned letters in respect to the social aspect of their relationship when they demonstrate that the couple represented themselves to community housing that they were married.

   3. The Tribunal erred by taking an inconsistent approach in considering the evidence of all of the circumstances of the relationship, as set out in r.l.15A(3) of the Migration Regulations 1994 (Cth); and that inconsistency rendered the decision illogical or irrational.

   Particulars

   i. The Tribunal took into account only the most recent evidence, from about 2014, in respect of the financial aspects of the relationship and found it was consistent with a spousal relationship.

   ii. The Tribunal took into account only the most recent evidence of the nature of the household, including corroborating documentary evidence dated 2016, and found that it reflected a spousal relationship.

   iii. However, the Tribunal failed to take into account the most recent evidence of the nature of the persons commitment to each other; it did not consider any of the evidence from the time of their marriage in Australia in 2012.

   iv. The Tribunal took into account ·only the most recent evidence of the social aspects of the relationship and found it was "insubstantial" having regard to the fact that the applicant had been in Australia since 2011; however, any lack of evidence going back to that date was not viewed as problematic in its consideration of the financial and household aspects.

   v. The Tribunal selectively cherry picked the time period in which to consider the evidence for each of the aspects of the relationship.

4. The Tribunal in its reasons identified the requirements of s 5F(2)(a) of the Act were met and turned to the requirements of reg 1.15A(3) of the Migration Regulations 1994 (Cth) (“the Regulations”). The Tribunal acknowledged the importance at the time of decision of taking into account the financial and social aspects of the relationship and the nature of the applicant’s and sponsor’s household and commitment to each other and annexed the requirements of reg 1.15A of the Regulations to the decision.

5. Nonetheless, the Tribunal turned to whether the requirements for a spousal relationship were met by first addressing the issue of commitment. There is a generalised statement that the Tribunal considered the nature of the persons’ commitment to each other, including duration of the relationship, the length of time they have lived together, degree of companionship and emotional support they draw from each other and whether they see the relationship as long term.   Notwithstanding those general statements, there is no express reference in considering the commitment of the parties to each other, as to the duration of the time they have lived together since being married in February 2012 up to the time of the decision.

6. Whilst there is, in the Tribunal’s reasons, other reference to the Tribunal accepting that the parties lived together, the duration of that period of time living together was itself a matter that required in the circumstances of this case, express consideration beyond the generalised remark concerning the length of time they have lived together. That is because in the circumstances of the present case these were parties who had been married, who had had a 15-year relationship and three children. 

7. In the circumstances, the assessment of the commitment of two elderly people to the relationship required the Tribunal to expressly refer at the time of decision in the circumstances of this case to the period during which they had lived together. I also accept the applicant’s argument that in assessing the commitment to each other, the motivation of the sponsor to look after and care for her former partner who she had remarried and with whom she had three children, was a further material factor that required express consideration in relation to the commitment of the parties in the assessment of that evidence by the Tribunal.

8. In addition, in this case, there was other express evidence in relation to the commitment of the parties to each other at pages 144 and 150 of the Court Book that required express consideration by the Tribunal in the circumstance of the present case in relation to the commitment of the parties to each other. It is accepted by the first respondent that there is no express reference to the evidence at page 144 and 150 of the Court Book, both of which were relevant to the commitment of the parties as at the date of decision. In the circumstances of the present case, that evidence was material and required express consideration by the Tribunal in assessing the commitment of the parties to each other.

9. There is force in the submission of the applicant that the Tribunal appears to have focused more upon the reasons for the break-up of the first marriage and the limited knowledge of the sponsor about the plight of the applicant following that break-up, rather than as was required in respect of the assessment of the commitment, being the commitment of the parties at the time of the decision, to each other. 

10. The age of the parties was also a further factor that required express consideration in the circumstances of this case as to whether the parties see the relationship as long term. There was only three years between the birth of the respective parties and neither were in an obvious category where they would be likely to move onto other relationships.

11. The Tribunal accepted that the financial arrangements were consistent with that of a spousal relationship and found the household reflects a spousal relationship. It is not necessary for the Court to address ground 2 or 3 as the Court finds that the Tribunal failed to have a real and genuine engagement with the applicant’s evidence in respect of their current commitment to each other at the time of hearing and thereby engaged in jurisdictional error. 

12. Accordingly, writs are issued. this is an appropriate case for the grant of writs. 

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Street

Date:  23 November 2018