Singh v MIBP
[2018] FCCA 1136
•9 May 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1136 |
| Catchwords: MIGRATION – Judicial review of decision by Administrative Appeals Tribunal (Tribunal) affirming decision of delegate not to grant Partner visa – whether Tribunal made a jurisdictional error by concluding that false information the applicant provided in support of his application for a Partner visa that he was the biological father of the child of the sponsor was information that was false or misleading in a material particular – whether when considering whether to waive compliance with Public Interest Criterion 4020(1) the Tribunal failed to take into account two matters – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5F, 65, 348, 414 Migration Regulations 1994 (Cth), reg.1.15A, Schedule 2, cls.820.211(2)(a), 820.226, Schedule 4, cls. 4020(1), 4020(2), 4020(5), 4021 |
| Cases cited: Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Limited [2014] FCA 634 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 R v Connell; Ex parte Hetton Bellbird Collieries Ltd [1944] HCA 42; (1944) 69 CLR 407 |
| Applicant: | HARDAYAL SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 55 of 2016 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 6 April 2017 |
| Date of Last Submission: | 6 April 2017 |
| Delivered at: | Sydney |
| Delivered on: | 9 May 2018 |
REPRESENTATION
| Solicitors for the Applicant: | Mr M Jones of Parish Patience Immigration Lawyers |
| Counsel for the First Respondent: | Mr T Reilly |
| Solicitors for the First Respondent: | Australian Government Solicitor |
ORDERS
The application is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 55 of 2016
| HARDAYAL SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This application for judicial review raises two questions. The first is whether, in affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant a Partner (Temporary) (Class UK) (subclass 820) visa (Partner visa), the second respondent (Tribunal) made a jurisdictional error by concluding that certain information which the applicant provided in support of his application for a Partner visa was false or misleading “in a material particular in relation to” the application for a Partner visa within the meaning of cl.4020(5) of Schedule 4 to the Migration Regulations 1994 (Cth) (Regulations). The second question is whether, when considering whether to waive compliance with cl.4020(1), the Tribunal failed to take into account two matters.
Before I consider these two questions, it will be necessary to set out the facts out of which the questions arise, and the Tribunal’s reasons for affirming the delegate’s decision.
Background
The applicant applied for a Partner visa on 8 March 2013. To have been entitled to the grant of a Partner visa the applicant had to satisfy, among other things, the criterion specified in cl.820.226 of Schedule 2 to the Regulations. That required the applicant satisfy “public interest criteria 4020 and 4021”.[1]
[1] The Tribunal incorrectly stated that the applicant lodged his application for a Partner visa on 8 March 2014. On 8 March 2013, when the applicant applied for the Partner visa, cl.820.226 only required that an applicant satisfy PIC4021, not PIC4020 and PIC4021. The satisfaction of PIC4020 was added to cl.820.226 by item 53 of Schedule 7 to the Migration Legislation Amendment Regulation 2013 (No 3) (Cth) (Amending Regulations). Under item 1907 of schedule 13 to the Regulations (which itself was added to the Regulations by item 2 to Schedule 10 to the Amending Regulations), the amendments made to the Regulations by Schedule 7 of the Amending Regulations apply in relation to an application for a visa made, but not finally determined, before 1 July 2013 or to an application for a visa made on or after 1 July 2013. Given that the applicant’s application for a Partner visa was made on 8 March 2013, but not determined before 1 July 2013, one of the criteria the applicant had to satisfy was that specified by cl.820.226 as amended by the Amending Regulations, namely PIC4020 and PIC4021.
PIC4020
“Public interest criteria 4020 and 4021” are references to clauses 4020 and 4021 of Schedule 4 to the Regulations. Relevant to the case before me is item 4020 (PIC4020) which, as at 8 March 2013, being the day on which the applicant lodged his application for a Partner visa, provided 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 Migration Review Tribunal, 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.
(2)The Minister is satisfied that during the period:
(a)starting 3 years before the application was made; and
(b)ending when the Minister makes a decision to grant or refuse the application;
the applicant and each member of the family unit of the applicant has not been refused a visa because of a failure to satisfy the criteria in subclause (1).
(3)To avoid doubt, subclauses (1) and (2) apply whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant.
(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.
(5)In this clause:
information that is false or misleading in a material particular means information that is:
(a)false or misleading at the time it is given; and
(b)relevant to any of the criteria the Minister may consider when making a decision on an application, whether or not the decision is made because of that information.
Application to delegate
In his application for a Partner visa the applicant claimed he is married to the sponsor, an Australian citizen. In answer to the question contained in the form of application whether the applicant has any children, the applicant ticked the box next to the word “Yes”.[2] The applicant then provided details of the person the applicant claimed was his child (child). In the box next to the words “Relationship to you”, there was typed “DOUGHTER [sic] (MY CHILD)”.[3] The applicant supported this part of his application with a birth certificate of the child which recorded the child was born in August 2011, and that the applicant was the father of the child.[4]
[2] CB6
[3] CB6
[4] CB57
The applicant also supported his application by providing a written statement made by him,[5] a written statement by the sponsor,[6] and a statutory declaration from a person who described himself as the applicant’s “cousin brother”.[7] In his statement the applicant said he first met the sponsor in November 2010 in a coffee shop in Liverpool during a visit to Sydney from Brisbane where the applicant then lived. The applicant and sponsor went out in the evening of the day they met, and the applicant spent the night at the sponsor’s home. The applicant left for Brisbane the day after he met the sponsor. The applicant then travelled to Sydney more often; he and the sponsor got to know each other “and we were planning to get married”;[8] and “in the meantime our daughter was born on 29 August 2011”. The applicant “came very often to Sydney” to spend time “with both of them and one day [the sponsor] asked to get married”. The applicant said he was ready to take responsibility of the sponsor and “my child”, and he and the sponsor were married on 17 August 2012.
[5] CB96-99
[6] CB91-95
[7] CB100
[8] CB98
In her statement the sponsor said she and the applicant spent their first night together, “but in a month I found out I am expecting a baby of him”. When the sponsor called the applicant and told him about her pregnancy the applicant was happy with the news, and he continued to visit Sydney. “Very soon” the sponsor asked the applicant “for marriage but we could not do it before my delivery”. After the applicant gave birth to the child, the applicant was more “loving and caring”. The sponsor and the applicant were married on 17 August 2012, and they started to live together as soon as they were married.
By letter dated 24 April 2014 the delegate informed the applicant that, having considered the information the applicant provided, the delegate was not satisfied the evidence demonstrated the claimed family relationship between the applicant and the sponsor. In particular, the delegate said she was not satisfied the applicant was the biological father of the child. The delegate requested that a DNA test be conducted to determine if the child is the biological child of the applicant and the sponsor.[9]
[9] CB182
The applicant responded by email on 24 April 2014 in which he stated he wanted to know why he had to provide a DNA test “as I don’t think so anything is going to change by that DNA report”.[10] The delegate responded by email sent on 29 April 2014 in which she said she was not satisfied the applicant was the biological father of the child of his claimed relationship with the sponsor, that if a DNA test confirms the applicant is the biological father of the applicant, the delegate would accept this information, but that if the applicant chooses not to undertake a DNA test the delegate will assess the matter “based on the current information on file”.[11]
[10] CB194
[11] CB194
The applicant responded by letter dated 19 May 2014 sent by his migration agent in which the following was stated:[12]
Our instructions are that our client never represented in his application that he is the biological father of [the child]. He states that his wife requested him to include his name in the birth certificate as [the child’s] father. He maintains that DNA testing is used to establish a biological relationship and he is of the view that since [the child] is not his child, there is no need for him to do so.
Our client represents however that he is a father to [the child] in many other respects.
[12] CB195
By letter dated 22 May 2014 the delegate informed the applicant there is evidence to suggest the applicant provided a bogus document or false or misleading information in relation to his application for a Partner visa.[13] The evidence the delegate identified is the birth certificate the applicant provided, in which the applicant is noted as the child’s father, and the “additional supporting documents provided” in the applicant’s application.[14] The letter invited the applicant to comment on the information the delegate considered to be false or misleading or the document that is considered to be bogus, and to specify if the applicant believes there are any compelling circumstances affecting the interests of Australia, or compassionate or compelling circumstances affecting the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, to justify the waiver of any or all of PIC4020(1) and (2) to justify the granting of the Partner visa.
[13] CB207-212
[14] CB208
The applicant responded by his migration agent’s letter dated 19 June 2014.[15] The agent submitted that the applicant considers the child as his own child; that the child would be deprived of her right to have a close relationship with “her father” if the waiver is not granted; the child was currently in the care of the Department of Community Services (DOCS); the applicant is in the process of obtaining a parental order; and the applicant wants to get the child out of DOCS and provide her with proper care in a family environment.
[15] CB213
Delegate’s decision
On 18 July 2014 the delegate decided not to grant the applicant a Partner visa. The delegate concluded she was not satisfied the applicant had not represented himself as the applicant’s biological father. The delegate also concluded it was not satisfied there are compelling and compassionate reasons to waive PIC4020. The delegate noted that the applicant did not begin to live with the sponsor until just before the child turned one year of age; there was no evidence to support the claim the applicant made that he had initiated an application for a parenting order; and in a telephone conversation with an officer of the Department of Immigration and Border Protection the applicant stated he was having a custody dispute with his “ex-wife”.[16]
[16] CB217-232
Before the Tribunal
Both the applicant and the sponsor gave evidence before the Tribunal. The applicant said that he first met the sponsor in November 2010 when he was visiting Sydney from Brisbane; the child was born on a particular day in August 2011 although the child’s birth was not registered until February 2013; the applicant’s name was placed on the birth certificate as the child’s father; the applicant and sponsor married on a day in August 2012, and the child was placed in DOCS in March 2014.[17] The Tribunal asked the applicant when he first thought the child might not be his. The applicant said when the child was about one and half years old, after he applied for the Partner visa; but he put his name on the birth certificate because he considered that he had been in the child’s life as a father figure, and he considered her to be his daughter.”[18] The applicant also said he recalled his wife had DNA testing done to ascertain whether another man was the child’s father and that the applicant and the sponsor had discussed this.[19]
[17] CB349, [11]
[18] CB349, [13]
[19] CB349, [13]
The sponsor said DNA tests were done when the child was born because she thought another man was the child’s father; the tests came back negative; that confused the sponsor because she did not think the applicant was the father, and considered the applicant to be the only other person who could be the child’s father. The sponsor said, however, that she did not think the applicant was the child’s father, and she and the applicant had talked about this at the time of the child’s birth.[20]
[20] CB349, [12]
The applicant and sponsor also gave evidence that was relevant to the waiving of the requirements of PIC4020(1) and PIC4020(2). Both the applicant and the sponsor said they have been separated at times, but were together again.[21] The Tribunal referred to the delegate’s decision record that noted that the child was taken into care by DOCS while the applicant was temporarily living away from them, and that the applicant was in the process of obtaining a parenting order because he was concerned about the child’s welfare. The Tribunal further noted that the delegate’s decision record indicated that the sponsor’s other children were living with the sponsor’s sister, and that the sponsor hoped that if she could show she was in a relationship with the applicant she may have her children returned to her care.[22]
[21] CB353, [37]
[22] CB353, [37]
The applicant said he was working in three jobs and is paying tax;[23] the sponsor is no longer receiving Centrelink payments because the applicant is supporting her financially;[24] because the applicant is supporting the sponsor, she will be “very affected” if he was not with her; the sponsor is attempting to regain the care of her child and the applicant is assisting her to do that, including paying the costs of engaging a barrister; and that if the applicant were to return to India he would not be able to earn sufficient money to support the sponsor to pay for the barrister.[25] The sponsor also gave evidence that if the applicant were to return to India the relationship would end and that she relies on the applicant emotionally.[26]
[23] CB353, [38]
[24] CB353, [38]
[25] CB353, [39]
[26] CB353, [41]
Tribunal’s reasons
The Tribunal was satisfied that, at the time the child’s birth was registered, the applicant was living with the sponsor and the child.[27] The Tribunal was also satisfied that the applicant represented to the Registrar of Births, Deaths and Marriages (Registrar) that he was the father of the child; that the sponsor was also an informant for the registration of the child and she concurred in the applicant being recorded as the father of the child; and the applicant considered himself to be the father of the child as he was living with the child and he considered he was performing this role in the child’s life.[28] Based on these findings the Tribunal was satisfied the applicant did not provide incorrect information to the Registrar and that the birth certificate in relation to the child was not obtained because of a false or misleading statement, whether or not knowingly made.[29]
[27] CB350, [18]
[28] CB350, [18]
[29] CB350, [18]
The Tribunal, however, was not satisfied the applicant did not otherwise provide information that was false or misleading in relation to his application for the Partner visa. The information the Tribunal was not satisfied was not false or misleading is the information conveyed by:
a)the applicant stating in his application for a Partner visa that he had children, that he named the child as his child, and that he described the relationship between him and the child as “DOUGHTER [sic] (MY CHILD)”;[30]
b)the applicant stating in his written statement that “later we found out she was pregnant with my child and I was very glad to hear this”;[31] and
c)the sponsor stating in her written statement that “in a month I found out I am expecting a baby of him. I called him and told him about this, he was very happy to hear that”.[32]
[30] CB350, [22]
[31] CB350-351, [23]
[32] CB351, [24]
The Tribunal found that the applicant’s providing this information together with the child’s birth certificate conveyed to the delegate the representation that the applicant was the child’s biological father even though he knew this was false; and that the relationship statements submitted by the applicant indicated the applicant was the child’s biological father. [33]
[33] CB351, [26]
The Tribunal did not accept the applicant genuinely considered he was the biological father of the child at the time the child’s birth was registered, or at the time the applicant applied for the Partner visa. The Tribunal’s non-acceptance was based on the child’s birth having been registered four months before the applicant applied for the Partner visa and the applicant’s having submitted to the delegate (through his migration agent) that he had never represented that he was the biological father of the child; and on the evidence given by both the applicant and the sponsor that the sponsor considered another person was the father of the child and that the applicant and sponsor had discussed that.[34] In those circumstances, the Tribunal found that the applicant intended to convey the information that he was the biological father of the child, knowing that to be false.[35]
[34] CB351, [25]
[35] CB351, [26]
The Tribunal acknowledged that it is not a requirement of a genuine marriage relationship that an applicant be the biological parent of the couple’s child. The Tribunal considered, however, that the applicant conveyed he was the biological parent of the child “with the intention of supporting his application as the spouse of the sponsor for the purposes of the visa”; and that it considered “the information submitted is material to determining whether the applicant and the sponsor are in a genuine spouse relationship”. The Tribunal considered that “in providing information to the [delegate] which would likely cause the delegate to consider that they had an Australian citizen child of the relationship they were providing information on a material particular”.[36] The Tribunal continued:[37]
Taking this into account, the Tribunal considers that had the statements been accepted at face value and the applicant been accepted as being the biological father of the child this would have been taken into account in determining whether he was in a genuine spouse relationship with the sponsor.
[36] CB351, [27]
[37] CB351, [27]
The Tribunal then considered whether the requirements of PIC4020(1) or PIC4020(2) should be waived.
a)The Tribunal noted there was no evidence that if the applicant were to be granted a Partner visa the sponsor would have a greater likelihood of having the child and her other children who are in the care of DOCS returned to the sponsor’s care. The Tribunal, therefore, did not consider the children’s care arrangements to be compassionate or compelling circumstances that affect the interests of an Australian citizen.[38]
b)The Tribunal was not satisfied the applicant’s taxation obligations or the sponsor’s financial independence from Centrelink payments are compelling circumstances affecting the interests of Australia that justify the granting of the Partner visa.[39]
c)The Tribunal was not satisfied that the presence of the applicant in Australia would be a determinative factor in the sponsor’s application for the child’s return to her care. After referring to the applicant’s saying he was attached to the child and concerned about her welfare, the Tribunal noted that the applicant and the sponsor gave evidence that, although they were not separated at the time the child was removed by DOCS, the applicant was living away from the sponsor and the child. The Tribunal was not satisfied the applicant’s role in seeking the return of the child to the sponsor’s care, or his role as a father figure to the child is a compelling reason affecting the interests of an Australian citizen.[40]
d)Although the Tribunal accepted the applicant provides support to the sponsor, it noted that if the applicant is not granted the Partner visa the sponsor would be entitled to Centrelink financial support; and the sponsor has some family support from her mother. The Tribunal was not satisfied that the applicant’s financial and emotional support for the sponsor is a compassionate or compelling circumstance affecting the interests of an Australian citizen.[41]
[38] CB353, [36]
[39] CB353, [38]
[40] CB353, [42]
[41] CB354, [43]
Ground 1 - misleading information not relevant
The amended application contains two grounds of application. The first is as follows:
The Tribunal erred [in] its interpretation of Public Interest Criterion 4020.
Particulars
The Tribunal applied a wrong test to the meaning of the term “material particular” in relation to the Applicant’s evidence concerning the paternity of the sponsor’s child. The information given by the Applicant was not material to the criteria for the visa applied for.
In his written submissions Mr Jones, who appeared for the applicant, referred to reg.1.15A(3) of the Regulations which prescribes matters the Minister (and, on review, the Tribunal) must take into account when determining whether one or more of the elements identified in s.5F(2) of the Migration Act 1958 (Cth) (Act) exist. Subsection 5F(2) of the Act sets out the elements of a “married relationship” which, for the purposes of s.5F(1) of the Act, constitutes one person the spouse of another. Mr Jones particularly referred to reg.1.15A(3)(b)(i) of the Regulations which in turn refers to “any joint responsibility for the care and support of children”. Mr Jones submitted that where, as Mr Jones submitted is the case here, the decision-maker has accepted that the persons claiming to be in a married relationship have joint responsibility over a child, whether or not the applicant for the visa is the biological parent is irrelevant to the application for a Partner visa. Mr Jones submitted that is so, even though under reg.1.15A(2) of the Regulations the decision-maker is requires to consider “all of the circumstances of the relationship, including the matters set out in subregulation (3)”. Mr Jones submitted that it is an obvious fact that people may have biological children who have never been part of any married relationship between their parents, while children who are treated by the parties to a relationship as being a part of the relationship clearly are relevant to the nature of the relationship.[42] Mr Jones submitted that, while it would be the case that the existence of a child who is treated by the couple as their child comes within the ambit of “all circumstances of the relationship”, the exact genetic ancestry of any such child clearly does not.
[42] Outline of submissions for the Applicant, at [20] referring to Re Patrick [2002] FamCA 193 at [323-325]
Counsel for the Minister, on the other hand, submitted that the existence of a biological child to a relationship is relevant to whether there is a genuine married relationship, “as it is common experience that the existence of a biological child of a relationship is usually strongly indicative of a genuine relationship”; and that it “is not to the point that a genuine relationship may exist without such a biological child”.[43]
[43] First Respondent’s Written Submissions, [5]
The parties’ submissions assume the Tribunal considered that the applicant’s being the biological father of the child as opposed to being the non-biological father of the child was relevant to whether the applicant and sponsor are in a genuine married relationship; and their submissions go little further than denying or asserting that the applicant’s being a biological father is relevant to the criteria for the granting of a Partner visa, assuming it is for the Court to determine whether the applicant’s false or misleading information that he is the biological father of the child was relevant to the criteria for the granting of the Partner visa. For reasons that will become apparent later in these reasons, I do not share these assumptions.
To be in a position to show why I do not share these assumptions, and to identify the issues that arise on ground 1 and the competing submissions that have been made in relation to it, with and without these assumptions, it will be necessary to say something about the proper construction of the definition of “information that is false or misleading in a material particular” given in PIC4020(5), and of the role of the Tribunal in applying PIC4020.
Construction of PIC4020(5)
As I have already noted, the expression “information that is false or misleading in a material particular” is defined in PIC4020(5). It is necessary, therefore, to construe that paragraph; and I begin with the meaning of the word “relevant”.
When applied to a thing “relevant” denotes a relationship the thing bears to another thing. The thing and other thing between which the word “relevant” denotes a relationship, and the nature of the relationship it denotes, varies according to the many contexts in which the word “relevant” is used. In trials conducted before a court, for example, the word “relevant” is applied to particular items of evidence, and denotes a relationship between an item of evidence and an asserted fact or state of affairs about the existence of which there is a dispute. In that context the relationship the word “relevant” denotes is one where the evidence, if accepted, could rationally affect the assessment of the probability of the existence or non-existence of the asserted fact or states of affairs.[44] Thus when construing “relevant” as it appears in PIC4020(5) it is necessary to identify the thing to which “relevant” applies, the thing with which it requires a relationship, and the nature of the relationship it denotes.
[44] That, in substance, is the definition of “evidence that is relevant” given in s.55(1) of the Evidence Act 1995 (Cth); but this definition reflects the notion of relevance under the common law – see Heydon, J. D., Cross on Evidence Tenth Australian edition, LexisNexis Butterworths at [1490]
In the context of PIC4020(5) “relevant” applies to the expression “information that is false or misleading at the time it is given”. That requires consideration of three features of the expression. The first is the word “information”. Although not defined, “information” at the very least includes a matter that conveys a proposition of fact or opinion. That follows from the other parts of the expression of which “information” forms part – “false or misleading” – because it is a quality of a proposition of fact and, in some circumstances, propositions of opinion, that they are capable of being false or misleading. In the overwhelming majority of cases the “information” to which PIC4020(5) would apply is testimonial assertions recorded in documents provided to the Tribunal, and in evidence given by an applicant and others at a hearing before the Tribunal.
The second feature to note is that the information must be “false or misleading”. The expression “false or misleading” is contained in a number of statutes, and its meaning has been considered particularly in actions brought under the Trade Practices Act1974 (Cth) and the Australian Consumer Law. In that context it has been said there is “no meaningful difference between the words and phrases “misleading or deceptive” and “mislead or deceive” (s 18), “false or misleading” (s 29(1)(a)) and “mislead” (s 33)” as these expressions appear in the Australian Consumer Law”;[45] and the meaning given to any of these expressions, therefore, is relevant to the meaning of “false or misleading” used in PIC4020(5). For the purposes of these reasons for judgment, I need only note that “misleading or deceptive”, when applied to the conveying of a representation, means a representation that “induces or is capable of inducing error”.[46]
[45] Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Limited [2014] FCA 634, at [40] (Allsop CJ)
[46] Butcher v Lachlan Elder Realty Pty Ltd [2004] HCA 60 at [111] (McHugh J)
The third feature of the expression “information that is false or misleading at the time it is given”, as it appears in PIC4020(5), is that it must be false or misleading “at the time it is given”. This means that if the information is false or misleading at the time it is given, it remains false or misleading even if there is a turn in events that result in the information ceasing to be false or misleading. The requirement that the information be false or misleading at the time it is given may also suggest that whether or not the information is false or misleading is to be assessed once and for all by reference to the material that was before, or that may reasonably be supposed to have been before, the Minister or other body at the time the information was given, and not by reference to any additional information that may subsequently be provided to the Minister. I do not need to form a concluded view about this.
I next turn to the thing to which “information that is false or misleading at the time it is given” must be related; and that is “any of the criteria the Minister may consider when making a decision on an application”. In the case before me the relevant criteria the Minister (and, on review, the Tribunal) was required to consider are those attached to the granting of the Partner visa as provided for by subclass 820 of Schedule 2 to the Regulations. Relevant to the application before me is cl.820.211(2)(a) which requires that the applicant is the “spouse or de facto partner of a person who”, among other things, is an Australian citizen. Subsection 5F(1) of the Act provides that a person is the spouse of another person if, under s.5F(2), 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 husband and wife to the exclusion of all others; and (c) the relationship between them is genuine and continuing; (d) and they live together or do not live separately and apart on a permanent basis.
Subsection 5F(2) must be read with reg.1.15A of the Regulations because s.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 s.5F(2) exist; and reg.1.15A is the regulation by which the Regulations have made such provision. Subregulation 1.15A(2) provides that, when considering an application for, among other subclasses of visas, a Partner visa, the Minister must consider “all of 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; 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.
Finally, I turn to the nature of the relationship that “relevant” denotes between, on the one hand, “information that is false or misleading at the time it is given” and, on the other hand, “any of the criteria the Minister may consider when making a decision on an application” which, in this case, is the criteria specified in s.5F(2) when considered with reg.1.15A. The required relationship is of two types. The first is that the information itself answers, or is reasonably capable of answering, the description of one or more of the elements of the definition of “married relationship” given in s.5F(2) of the Act or one or more of the matters identified in reg.1.15A(3) of the Regulations. For example a marriage certificate is information that answers the element of the definition a “married relationship” specified in s.5F(2)(a) of the Act, and a certificate of title in relation to land in which the persons claiming to be in a marriage relationship are shown to be tenants in common answers the description of “joint ownership of real estate” provided for in reg.1.15A(3)(a)(i) of the Regulations.
The second, and it is to be supposed more usual, type of required relationship that “relevant” denotes applies where the information does not on its face answer the description of any of the elements specified in s.5F(2) of the Act, or of any of the matters specified in reg.1.15A(2) of the Act and reg.1.15A(3) of the Regulations. Here the required relationship is one where the information, if accepted as true, reasonably affords, or is reasonably capable of affording, a reason, or part of the reason, or one of a number of reasons, for concluding that something exists or does not exist that answers the description of one or more of the elements or matters specified in s.5F(2) of the Act or reg.1.15A of the Regulations. This required relationship flows from the nature of the powers the Tribunal exercises and the duties to which it is subject when it exercises its powers. As was said about the Tribunal’s powers under s.414 of the Act (which is equivalent to s.348 of the Act), the “Tribunal’s task on review under s 414 of the Migration Act is to form, for itself and on the material before it, the requisite state of satisfaction under s 65 of the Migration Act in respect of the criterion (or criteria) for a visa in issue before it”.[47] In undertaking that task the Tribunal is required to act reasonably, where “reasonableness” refers both to the decision the Tribunal makes, and, at least where it gives reasons, the reasoning by which the Tribunal arrives at its decision;[48] and whether or not it gives reasons, it must not act capriciously, arbitrarily, or irrationally.[49] That, in turn, requires the Tribunal to assess whether information is reasonably capable of supporting the existence or non-existence of a thing that answers the description of one or more of the elements or matters specified in s.5F(3) of the Act or reg.1.15A of the Regulations.
[47] Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114, at [42]
[48] Minister for Immigration and Border Protection v Singh [2014] FCAFC 1
[49] R v Connell; Ex parte Hetton Bellbird Collieries Ltd [1944] HCA 42; (1944) 69 CLR 407, at page 432 (Latham CJ)
What is the question?
The form of the parties’ submissions assumes that it is for the Court to determine whether the applicant’s false or misleading information that he is the biological father of the child is relevant to the criteria for the granting of the Partner visa. That assumption is incorrect. It is for the Tribunal, not this Court, to determine whether it is satisfied the applicant satisfies cl.820.226 of Schedule 2 to the Regulations which, as I noted at the beginning of these reasons, requires that the applicant satisfy “public interest criteria 4020 and 4021”. As I have already noted, the Tribunal’s task on review under s.348 of the Act is to form for itself on the material before it the requisite state of satisfaction under s.65 of the Act in relation to the criterion (or criteria) for the grant of the visa in issue before it. The consequence of this is that the satisfaction of the Minister and, on review, the Tribunal, “is a condition precedent to the discharge of the obligation to grant or refuse to grant the visa, and is a ‘jurisdictional fact’ or criterion upon which the exercise of that authority is conditioned”.[50] That, in turn, means the Tribunal’s decision is liable to be set aside only if it has made a jurisdictional error in the course of determining whether it is not satisfied the applicant met PIC4020.
[50] Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32, at [37] (Gummow and Hayne JJ)
Although ground 1 of the amended application asserts the Tribunal applied the wrong test to the meaning of the term “material particular”, it does not identify the nature of the error, or the test which the Tribunal applied which it is claimed is incorrect. The ground only relies on the additional assertion that the false or misleading information the applicant provided with his application for a Partner visa was not a material particular to the criteria for the grant of a Partner visa. Mr Jones, for the applicant, in his written submissions went no further. Ground 1, therefore, is no more than an appeal to the Court that it should take a contrary view to that taken by the Tribunal about the relevance of the information that the applicant provided that he was the biological father of the child. To that extent, as framed and as argued, ground 1 seeks merits review, and for that reason alone it must fail.
I will, however, nevertheless consider whether the Tribunal made a jurisdictional error in concluding that the false or misleading information the applicant provided was false and misleading in a material particular. That question is to be determined having regard to principles that include the following:[51]
In Australia . . . the principles applicable where the jurisdictional fact is a state of satisfaction or opinion are traced back to the use by Latham CJ in R v Connell; Ex parte Hetton Bellbird Collieries Ltd of the terms “arbitrary, capricious, irrational” as well as “not bona fide” to stigmatise the formation of an opinion upon which a statutory power was enlivened. Subsequently, for the Supreme Court of Canada, Iacobucci J spoke of decision making upon an assumption which had no basis in the evidentiary material or which was contrary to the overwhelming weight of that material, and also of decisions based upon a contradiction in the processes by which conclusions were reached or upon the drawing of inferences which were not properly open.
A decision upon jurisdictional fact which has these characteristics is treated as a failure to exercise jurisdiction. There has been a purported exercise of public power in the absence of the necessary jurisdictional fact.
[51] Minister for Immigration and Citizenship v SZMDS [2010] HCA 16, at [23], [24] (references and footnotes omitted)
Did the Tribunal make a jurisdictional error?
Whether or not the Tribunal made a jurisdictional error is to be approached by considering whether the Tribunal correctly understood and applied PIC4020, and in particular PIC4020(5); and whether, in the course of applying PIC4020, the Tribunal made findings that were or were not reasonably open to it to make on the material that was before it.
First, the Tribunal correctly asked itself whether the applicant provided information to the Minister; and it answered that question by identifying the information which it found conveyed the representation that the applicant was the biological father of the child. The applicant does not suggest the Tribunal made any jurisdictional error in the information it identified, or in the representation the Tribunal found the information conveyed to the Minister, namely, that the applicant was the biological father of the child.
Second, the Tribunal asked itself whether the information the applicant provided to the effect that he was the biological father of the child was false or misleading; and the Tribunal answered that question in the affirmative. Again the applicant does not submit the Tribunal made any jurisdictional error in concluding that the information the applicant provided was false or misleading.
Third, the Tribunal asked itself whether the false or misleading information it identified – that the applicant was the biological father of the child – “was material to determining whether the applicant and the sponsor are in a genuine spouse relationship”; and the Tribunal answered that question in the affirmative because it found that, had the information been accepted at face value and the applicant had been accepted as the biological father of the child, that would have been taken into account in determining whether the applicant and the sponsor were in a genuine married relationship. On the face of its reasons, therefore, the Tribunal appears to have done that which PIC4020(5) required it to do.
While accepting that whether or not the applicant is the father of the child was relevant to his being granted a Partner visa, Mr Jones, for the applicant, submits that whether or not the applicant is the biological father is not relevant. What was relevant, Mr Jones submits, is whether the applicant acted as the child’s father.[52]
[52] T5.5-T5.15
These submissions assume that what the Tribunal considered to be relevant was the applicant’s not being the child’s biological father as opposed to the applicant’s being the non-biological father of the child. That, however, does not reflect what the Tribunal did. The Tribunal only asked itself whether the information the applicant provided – namely, that the applicant was the biological father of the child – would likely have caused the delegate to consider that the applicant and sponsor were in genuine married relationship; and by answering that question in the affirmative, the Tribunal concluded that by providing such information the applicant provided information that was relevant in a material particular.
It might be that ground 1 further assumes that, when determining whether the false or misleading information the applicant provided to the Tribunal was material (that is, relevant), the Tribunal was required to assess the relevance of the information it found to be false and misleading, not by reference to what was conveyed by the information, but by reference to the respects in which the information was false or misleading. The text of PIC4020(5), however does not support any such assumption. PIC4020(5) only requires that the information that is false or misleading be relevant to any of the criteria the Minister may consider when making a decision on an application for the grant of the visa. In those circumstances, all the Tribunal in the case before me was required to ask itself, and which it in effect did ask itself, was whether the information the applicant provided that he was the biological father was false or misleading; and, if so, whether that information was relevant to the criteria for the granting of a Partner visa. The Tribunal made no jurisdictional error by adopting this approach.
Given my conclusion that the Tribunal did not identify as the relevant false and misleading information the assertion that the applicant was the biological father of the child as opposed to being the non-biological father of the child, the question whether it was open to the Tribunal to find such information to be relevant does not arise and, for that reason, ground 1 cannot succeed. Given, however, that the parties made submissions on the assumption that the Tribunal did consider such information to be relevant, it is appropriate that I determine whether it was reasonably open to the Tribunal to consider that information to be relevant.
Reasonably open to find relevant applicant’s being biological rather than non-biological father?
The Tribunal did not disclose in its reasons the basis on which it may have found that the applicant’s being the biological rather than the non-biological father of the child was relevant. In those circumstances the onus is on the applicant to show the Tribunal acted unreasonably or irrationally in concluding that such information was relevant to whether or not the applicant and the spouse are in a genuine married relationship.
For the purposes of this part of my reasons, the applicant may be taken to have submitted the Tribunal acted unreasonably or irrationally by concluding that the applicant’s being the biological rather than the non-biological father of the child was relevant because the Tribunal relied on the assumption that biological parents of a child are more likely to have a genuine commitment to their relationship than parents who are not both the biological parents of a child; and that this assumption is wrong because, as Mr Jones submitted, “it is an obvious fact that people may have biological children who have never been part of any marital relationship between their parents, while children who are treated by the parties to a relationship as being a part of the relationship clearly are relevant to the nature of the relationship”.[53]
[53] Outline of submissions for the Applicant, at [20]
I do not accept the Tribunal relied on an assumption to the effect that biological parents of a child are more likely to have a genuine commitment to their relationship than parents who are not both the biological parents of a child. First, the Tribunal does not say in relied on any such assumption. Second, there was before the Tribunal evidence on the basis of which it was reasonably open to it to consider relevant the applicant’s being the biological rather than the non-biological father of the child; and this evidence consists of statements the applicant himself made in the statement he provided to the Tribunal in support of his application for a Partner visa.
In his statement the applicant referred to his being “very glad to hear” that the sponsor “was pregnant with my child”, and to “our daughter being born” as making “our love stronger and efficient together”. He also referred to his being “ready to take responsibility of her and my child” when the sponsor asked the applicant to marry her. Omitted from the applicant’s statement is any reference to his being happy that the sponsor had two other children, or to the applicant’s and the sponsor’s love for each other becoming stronger on account of the sponsor’s two other children, or any statement by the applicant that he was willing to take responsibility for the sponsor’s two other children. In short, the applicant himself asserted a direct link between his being the biological father of the child and the strength and quality and, hence, the genuineness of his relationship with the sponsor. That the applicant himself attached importance to his being the biological father of the child was a matter on which the Tribunal could reasonably have relied for concluding that the applicant’s being the biological rather than the non-biological father of the child was relevant to whether the applicant and sponsor were in a genuine married relationship.
I am not satisfied, therefore, that in the particular circumstances that were before it, it was not reasonably open to the Tribunal to consider the applicant’s not being the biological as opposed to being the non-biological father of the child to be relevant to whether the applicant was in a genuine married relationship with the sponsor. For this reason also ground 1 fails.
Conclusion
Ground 1, therefore, fails for three independent reasons. It seeks merits review of the Tribunal’s conclusion that the applicant’s being the biological father was relevant to whether the applicant and sponsor are in a genuine married relationship; it incorrectly assumes the Tribunal considered that the applicant’s being the biological father of the child rather than the non-biological father of the child was relevant to whether the applicant was in a genuine relationship with the sponsor; and, in any event, to the extent the Tribunal did conclude that the applicant’s being the biological father of the child rather than the non-biological father of the child was relevant to whether the applicant was in a genuine married relationship with the sponsor, it was reasonably open to the Tribunal to so conclude in the circumstances of the case before it.
Ground 2 – failure to consider matters
Ground 2 is as follows:[54]
The Tribunal failed to take into account all aspects of the case before it.
Particulars
(a)The Tribunal’s finding that the Applicant’s presence in Australia would not be a determinative factor in the sponsor’s application for the return of her child did not address the argument that the Applicant was funding the sponsor’s application by paying for a private barrister, which he would not be able to do from overseas.
(b)The interests of the sponsor as an Australian citizen were improperly limited to the question of whether the Applicant’s presence in Australia would help to get her child back.
[54] I have not set out paragraph (c) of the particulars because the applicant does not press it — Outline of submissions for the Applicant, at [22]
Particular (a)
This particular is directed to the Tribunal’s finding that it was not satisfied the applicant’s role in seeking the return of the child to the sponsor’s care, or his role as a father figure to the child, is a compelling reason affecting the interests of an Australian citizen.[55] The applicant claims the Tribunal did not address his and the sponsor’s claim that the applicant was paying for the expenses associated with the sponsor having engaged a barrister and that, if the applicant were not in Australia to financially support the sponsor, she would not be able to afford a barrister; and that if the applicant returned to India he would not be able to earn sufficient money to support the sponsor or to pay for the barrister.
[55] CB353, [42]
It is true the Tribunal did not make any specific findings about whether the sponsor had engaged a barrister, or whether the applicant had been contributing to the expenses of the barrister, or whether, if the applicant were to leave Australia, he would be able to earn a sufficient amount to pay for the barrister. The Tribunal, however, referred to these submissions in its reasons; and it made a finding that it was not satisfied that the presence of the applicant in Australia would be a determinative factor in the sponsor’s application for the child’s return.[56] The Tribunal also made findings in relation to the support the applicant claimed he provided to the sponsor.[57] The Tribunal accepted the applicant provides support to the sponsor, but it found that if the applicant were to leave Australia the sponsor would be entitled to Centrelink financial support, and the sponsor had some family support from her mother, and otherwise it was not satisfied that the applicant’s financial and emotional support of the sponsor is a compelling or compassionate circumstance that affects an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen.
[56] CB353, [42]
[57] CB354, [43]
Given the Tribunal set out in its reasons the specific claims the applicant submits it did not consider, and the Tribunal’s findings I have identified are sufficiently general to apply to the specific claims it identified, I am not satisfied the Tribunal did not consider the specific claims. Particular (a), therefore, is not made out.
Particular (b)
In his written submissions, Mr Jones, for the applicant, submits the Tribunal did not address the implicit claim that arose from the sponsor’s claim that if the applicant were to return to India the applicant’s and sponsor’s relationship would end. The implicit claim was that the sponsor would be deprived the companionship as well as the support of the applicant. Mr Jones submitted that the Tribunal’s consideration of the sponsor’s interests was limited to the financial support that could be provided by Centrelink and “some family support from her mother”.
I do not accept these submissions. The Tribunal recorded in its reasons the evidence the sponsor gave of the impact on her if the applicant were to leave Australia. That included the Tribunal recording the sponsor’s evidence that she relies on the applicant emotionally. Later in its reasons the Tribunal accepted the applicant “provides support to the sponsor” but, after finding that the sponsor would resume entitlement to Centrelink financial support if the applicant leaves Australia, and that the sponsor has some family support, the Tribunal concluded it was not satisfied that the applicant’s financial and emotional support of the sponsor was a compassionate or compelling circumstance that affected an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen. That finding is sufficiently general to refer to the sponsor’s claims based on her losing the applicant’s companionship and emotional support.
I should note that the submissions Mr Jones made on this part of the applicant’s case does not reflect paragraph (b) of the particulars, namely, that the Tribunal’s consideration of the interests of the sponsor as an Australian citizen was improperly limited to the question of whether the applicant’s presence in Australia would help to get her child back. The matters I have identified in the preceding paragraph, however, satisfy me that the Tribunal’s consideration of the sponsor’s interests were not limited in the manner claimed in paragraph (b) of the particulars.
Particular (b) of the particulars to ground 2, therefore, is also not made out.
Disposition
The applicant has not succeeded on any of the grounds set out in the amended application. I propose, therefore, to order that the application be dismissed.
I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Associate:
Date: 9 May 2018
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