Singh v Minister for Immigration
[2018] FCCA 1126
•2 May 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1126 |
| Catchwords: MIGRATION – Judicial review – decision of the Administrative Appeals Tribunal – refusal of partner visa – whether jurisdictional error – none shown – application for judicial review dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5A, 5F(2), 65, 359A, 375,A, 476 Migration Regulations 1994 (Cth), cl. 820.211 of sch. 2, reg. 1.15A(3)(a) |
| Cases cited: AZAEY v Minister For Immigration and Border Protection (2015) 238 FCR 341; [2015] FCAFC 193 |
| Applicant: | BHUPINDER SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 644 of 2017 |
| Judgment of: | Judge Kendall |
| Hearing date: | 2 May 2018 |
| Date of Last Submission: | 2 May 2018 |
| Delivered at: | Perth |
| Delivered on: | 2 May 2018 |
REPRESENTATION
| The Applicant: | No appearance |
| Counsel for the Respondents: | Mr Macliver |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The applicant’s originating application filed 24 November 2017 is dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $7,328.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 644 of 2017
| BHUPINDER SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
EX TEMPORE
Introduction
By application filed on 24 November 2017, the applicant seeks the issue of constitutional writs in relation to a decision of the Administrative Appeals Tribunal (the “Tribunal”) made on 6 November 2017.
The Tribunal affirmed a decision made by a delegate of the Minister for Immigration and Border Protection (the “Minister”) on 4 November 2016 that refused to grant the applicant a Partner (Temporary) Class UK Visa under s.65 of the Migration Act 1958 (Cth) (the “Act”). That visa application was lodged by the applicant on 13 November 2014 on the basis of the applicant’s relationship with his sponsor.
The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl. 820.211 of Schedule 2 to the Migration Regulations 1994 (Cth) (the “Regulations”) because the delegate was not satisfied, on the evidence provided by the applicant, that the applicant and his sponsor were in a genuine and continuing spousal relationship within the meaning of that term.
The applicant seeks judicial review in this Court pursuant to s. 476 of the Act.
The applicant seeks an order that the decision of the Tribunal be quashed. In his judicial review application to this Court the applicant relies on two grounds of review:
a)The decision made by the Administrative Appeals Tribunal is not natural.
b)I discussed with my barrister and I’m not happy with the decision. They have some errors in my decision.
Despite a specific order from the Court allowing the applicant to file written submissions and further particulars, no submissions or further particulars were provided to the Court.
The Court had before it a Court Book numbering 434 pages and written submissions from the Minister.
The applicant failed to appear at the hearing before this Court. This was despite being advised via email and via regular mail about the date and time of the hearing before this Court.
To succeed before this Court, the applicant must show that the Tribunal engaged in jurisdictional error (discussed further below).
Synopsis
For the reasons set out below, the Court finds that the Tribunal did not fall into jurisdictional error in the manner alleged by the applicant in his judicial review application. Consequently, the application for judicial review must be dismissed.
Background Facts
The Court was provided with detailed written submissions from the Minister dated 26 April 2018.
The Court notes the factual and procedural background overview provided in those submissions at paragraphs 1–12 and notes relevantly, as follows.
The applicant is a citizen of India. He was born on 28 August 1987 in Moga, India.
On 13 November 2014, the applicant applied to the former Department of Immigration and Border Protection, now the Department of Home Affairs (the “Department") for a Class UK Subclass 820 Provisional Partner Visa, and a Class BS Subclass 801 Residence Partner Visa, on the basis of his relationship with his sponsor: CB 1-10 and 11-48.
On 8 March 2016 the Department wrote to the applicant seeking statements from him and his partner about their relationship history and evidence about particular aspects of their relationship. The statements and further evidence were to be provided within 28 days after the applicant was taken to have received the letter: CB 84-90.
The applicant did not provide any statements or further evidence to the Department in response to the Department's letter of 8 March 2016: CB 96.
On 4 November 2016, a delegate of the Minister refused to grant a Subclass 820 partner visa or a Subclass 801 partner visa to the applicant because she found that the criteria for the grant of those visas were not met. The delegate was not satisfied that the applicant was the spouse or de facto partner of the sponsor as defined under ss. 5F and 5CB of the Act: CB 95-99.
On 10 November 2016, the applicant applied to the Tribunal for review of the delegate's decision: CB 125-126.
The Tribunal’s Decision
On 29 May 2017 the applicant's migration agent provided submissions and various documents and photographs to the Tribunal regarding the relationship between the applicant and his sponsor: CB 145-305.
On 20 September 2017 the applicant appeared before the Tribunal to give evidence and present arguments relating to the issues arising in his case. The Tribunal also received oral evidence from the applicant's sponsor. The applicant was represented at the hearing by his registered migration agent: CB 391-393.
On 22 September 2017, pursuant to s 359A of the Act, the Tribunal invited the applicant to comment or respond to particulars of information which would, if relied on, form the reason or part of the reasons for affirming the decision under review, and explained why the information was relevant to the review. The Tribunal also invited the applicant to provide further evidence to support his application as was discussed at the hearing, and he was given two weeks to respond. On 9 October 2017, the applicant's newly appointed representative sought an extension of time to provide a submission to the Tribunal: CB 394-399 and 402-404. That extension of time was granted.
On 27 October 2017 the applicant provided the Tribunal with some information by email and stated that he would speak with the sponsor about the other requested information. No further evidence was received from the applicant and no further extension of time was sought by him: CB 411-412 and 428 [43].
On 6 November 2017, the Tribunal affirmed the decision of the delegate not to grant the applicant a Class UK Temporary Partner Visa: CB 420.
The Tribunal’s written reasons appear at pages 420 to 432 of the Court Book.
The Tribunal began by analysing issues pertaining to a Certificate under s. 375A of the Act:
5. A certificate was issued to the Tribunal by the Department under s375A in respect of one folio on the Department file. The Tribunal considered the certificate and the issue of its validity as a preliminary matter. It discussed the existence of the certificate with the applicant and his representative at the hearing, inviting his comments or response on the issue of its validity. The Tribunal indicated that its preliminary view was that, as a reason has been given for why disclosure of the documents/information would be contrary to the public interest, it appears on its face to be valid, and that the Tribunal cannot disclose the source or any information which may identify the source. However, as the information appears to be anonymous, the Tribunal was not likely to place weight or rely on it to affirm the decision under review. They provided no comments or arguments on the matter.
6. The Tribunal finds that the certificate is valid on the basis that it provides a reason for why disclosure of the documents/information would be contrary to the public interest, however, in any event, the Tribunal put the gist of the information to the applicant for comment at hearing, for reasons of fairness. Ultimately the Tribunal gave no weight to the document or information contained in it in its reasons to affirm the decision under review.
Ultimately, while the Tribunal found that the Certificate was valid, it is evident from the Tribunal’s written decisions that the Tribunal attached no weight to the document or the information contained in it.
The Tribunal then analysed all of the claims and evidence before it (paragraphs 8-43). This evidence included the documentary evidence provided by the applicant. It also included oral evidence provided by the applicant and his sponsor.
The Tribunal had extensive evidence before it. This evidence is summarised at paragraphs 10, 11, 12 and 13 in the Tribunal’s written decision as follows:
10. The following documents were provided in support of the application: Certificate of Marriage evidencing a marriage held on 5 October 2014 in Templestowe Lower Victoria; sponsor's divorce order dated 28 September 2014; Form 888 Statutory Declaration in support of the relationship from […], workplace friend of the applicant for two years; Form 888 Statutory Declaration in support of the relationship from […], friend of the applicant for six years; sponsor's Australian passport and citizenship certificate. Subsequently, the applicant submitted a NSW Tenancy Agreement naming the applicant and sponsor as tenants in a private agreement with the landlord, at […], Griffith dated 8 June 2015 for one year.
11. Before the Tribunal the applicant submitted the following further evidence: itinerary for travel for applicant and sponsor for a trip to India departing Melbourne on 11 January 2017 and returning from Delhi to Melbourne on 14 February 2017; affidavit from applicant's parents stating knowledge of the applicant and sponsor's marriage and support for the relationship; Form 888 from […], friend of the applicant and sponsor, who declares he lived with them at various addresses in Griffith and attests to their relationship; handwritten letter from […] dated 14 September 2015, stating she is the daughter of the sponsor and has knowledge of the relationship and has observed her mother's happiness; further NSW Tenancy Agreement for same premises in Griffith, from 8 June 2016 to 8 June 2017; applicant's Bingle Car Insurance policy, November 2016 - November 2017, indicating the sponsor as a named driver; utility bills issued in joint names to Griffith address during 2015; utility bills in sponsor's name only in December 2016-March 2017; evidence of applicant's nomination of sponsor as beneficiary for his superannuation; sponsor's life insurance policy naming applicant as an insured life; applicant's 2015 and 2016 tax returns indicating he has declared the sponsor as his spouse; letter from Westpac dated 5 November 2014 indicating opening of an account in joint names; statements from Westpac joint account for periods January - August 2015 and December 2016 to April 2017; photos of the applicant and sponsor together and with relatives during recent overseas trip.
12. In a submission dated 29 May 2017 attached with the supporting evidence, the applicant's representative submits the applicant and sponsor have lived together in a relationship for more than 5 years, having married on 5 October 2014. Their families are supportive of the relationship. The sponsor has visited the applicant's family and relatives in India in January 2017. Evidence of travel tickets, photos, joint bank accounts, lease agreement and utility bills have been provided to support the claimed long term relationship. The representative states the parties have recently moved together to Perth from Griffith and are sharing accommodation with a friend. It is submitted that they lived together since May 2012 in Griffith, and before that they were in Melbourne.
13. On 5 July 2017 the applicant's representative advised of the applicant's new address in Perth and provided evidence of an electricity account in the applicant's name at this address, in respect of which the sponsor is named as an authorised person.
The Tribunal then summarised the evidence taken at the Tribunal hearing (paragraph 14 onwards) and summarised in detail the evidence as it pertained to the applicant’s relationship with his sponsor and his sponsor’s children and grandchildren. The Tribunal also made various credibility findings. The Court notes in particular the Tribunal’s analysis at paragraphs 14-20, 24 and 26 as follows:
14. At the Tribunal hearing on 20 September 2017 the applicant confirmed his current address and explained that he lives in this 4 bedroom house with two families. He is staying in the living room, and the two families (comprising a husband and wife couple and their 2 and 3 children, respectively) occupy the 4 bedrooms. He explained that his wife is not actually staying here because she is in New Zealand and has been there since the end of March 2017. She is there dealing with a custody issue relating to her grandchildren.
15. When asked further about this matter the review applicant explained that his wife is seeking custody of 8 out of 12 children of her daughter who lives in New Zealand. He explained that his wife has 5 children and this daughter who was adopted out to her former husband's brother long ago. He named his wife's 5 children and stated their ages. She has only recently been back in contact with her 6th child in New Zealand. He explained that the sponsor went to New Zealand to visit her daughter […] who had recently relocated there from Australia. When she was there,[…] told her she had located her sister, the daughter who was adopted out and it was only then that she discovered these problems this daughter was facing. This was around May or June of this year. The review applicant referred to this daughter by a different name than the sponsor in her evidence (he initially referred to her family name […] and later in the hearing by another name, […] (the sponsor said her name was […] and this is the only name she goes by). His explanation of the situation was […] and the New Zealand child protection department had taken the children away from their mother and now the sponsor was seeking custody of 8 of these children. When asked the ages of the children he said there were […], later he said there were other children who were in jail for other offences. When the sponsor was asked about this she told the Tribunal she currently had care of two of her grandsons, aged […] and […] years and will be seeking care of others who are currently involved in a trial […].
16. The review applicant told the Tribunal his wife had discussed this matter with him and he was in full agreement with her to remain there and pursue the matter. He said he understood that she was the children's natural grandmother and he understood that she did not want the government to take custody of the children. He said they had discussed it and their plan was to eventually bring the children back to Australia and they would all live together as a family. The Tribunal asked the applicant if he had visited New Zealand since this situation had begun to meet the children and discuss this plan. He said he has not because he is the sole breadwinner for the family at present, also he had only recently relocated from Griffith to Perth and was settling in there, he had costs associated from the trip to India and also because of his visa status he cannot travel.
17. The Tribunal asked the applicant why he moved from Griffith to Perth. He said he did so for a change in lifestyle and work opportunities. When asked what work he is doing, he said he is working at a chicken factory in Perth. He was working previously for a chicken factory in Griffith. The sponsor is not working. She was working for a period of time in Griffith, at the same chicken factory as him, but she ceased work due to an injury and since then was receiving Centrelink benefits. He did not know the basis for her Centrelink benefits, but believes it was unemployment payments. He said she had informed Centrelink of their relationship and his income was taken into account in the benefits paid to her. The applicant said he believed she was in receipt now of some government benefits from the New Zealand government but does not know how much.
18. The Tribunal pointed out that there is little evidence before the Department or Tribunal to support that the sponsor and he cohabited in Griffith, apart from the tenancy agreement and some joint utility bills. It asked why there is no other correspondence addressed to each of them at that address. He said he can provide that evidence if necessary,
19. The sponsor has been in New Zealand since the applicant has been in Perth and she has not stayed with him at his current address apart from a few days when she has come here. She will be in New Zealand now until the custody matter is completed and he does not know when that will be.
20. Regarding his migration history, the applicant told the Tribunal he came to Australia to study in 2008. He completed courses in Bakery, Business Management and an Advanced Diploma of Business Management. The last course he completed was a Certificate III and IV in Horticulture. After he completed the Certificate III he went on to do a Diploma in Horticulture in Adelaide because it was not offered in Melbourne. He said he commuted from Griffith to Adelaide to do this course, and last studied around March - April 2013. The Tribunal pointed out that this was different to the information about his study claimed in his Form 80 where he stated he completed a certificate III in Horticulture in Melbourne in June 2013 and was undertaking an Advanced Diploma in Melbourne at time of application. It also put to him that it may not accept as credible that he commuted between Griffith and Adelaide to study as claimed.
24. The Tribunal put to the applicant that his account of the development of the relationship raises credibility concerns for the Tribunal, particularly given the significant age and cultural differences between them and the coincidence of the timing with the expiry of his student visa. In response he said that they met in 2011 and after some time they shared a commitment with each other. He said love is blind and it does not consider age or cultural differences or anything. He was in love with her and did not care what anyone thought about it. When asked to elaborate on why or how he fell in love with her, he said he was impressed with the way she talked and her face. He said something pulled him towards her face.
26. The Tribunal asked the applicant when he first met the sponsor's children. He said the first time was at her […] sons' […] birthday on […] 2015. He said all of her children were present at this occasion and it was the first time he met them in person. After that some of the children moved to Griffith and worked at the same factory as him. Before the party, the children were aware of the relationship but had not met him. He confirmed that none of the children, or any of her relatives, attended their wedding in October 2014. When asked why not, he said it was a small affair, only […] and some of their friends came. The applicant said the sponsor's children are all supportive of the relationship and have been from the beginning. They have given statements in support. The Tribunal pointed out that only one statement from […] is before the Tribunal. He said in response he had statements from the other children also and gave them to his previous agent he does not know why they were not provided to the Department or Tribunal. The Tribunal put to him that the fact he did not meet her children for some 2 years after the sponsor began living with him and they did not participate in their wedding and none are here to give evidence in support may cause the Tribunal to have some concerns about the genuineness of the relationship. In response he said only 3 of her children now are in […] now, the others are in New Zealand. He said he most recently spoke with her son […] yesterday. He asked him for some money ($50), which the applicant transferred to him because he has some health issues and cannot work at the moment.
In relation to the evidence from the applicant’s sponsor (detailed at paragraphs 32–43 in the Tribunal’s decision), the Tribunal took extensive evidence from her. Again, the Tribunal made a credibility finding in relation to the evidence provided by her, outlined as follows:
40. Following the hearing, on 22 September 2017, the Tribunal wrote to the applicant under s359A to invite comments or response to particulars of information which would if relied on form the reason or part of the reasons for affirming the decision under review. The Tribunal provided particulars of evidence provided by the sponsor at the hearing that was inconsistent and/or contradictory to his evidence; information in Departmental movement records about her travel; and the substance of the allegation made anonymously to the Department. The applicant was also invited to provide further evidence to support his application, as discussed at the hearing, including evidence from Centrelink of notification of the relationship, sponsor's NAB bank statements; documentation regarding the care proceedings the sponsor is involved in in New Zealand; any other evidence he wishes the Tribunal to consider. He was provided until 6 October 2017 to respond to the information and/or provide further information, and subsequently sought and was granted an extension of time to respond to 27 October 2017.
At paragraphs 41, 42 and 43 the Tribunal explains that following the hearing on 22 September 2017 the Tribunal wrote to the applicant under s.359A to invite comments or response to particulars of information which would if relied on form the reason or part of the reasons for affirming the decision under review:
41. Following the hearing, on 22 September 2017, the Tribunal wrote to the applicant under s359A to invite comments or response to particulars of information which would if relied on form the reason or part of the reasons for affirming the decision under review. The Tribunal provided particulars of evidence provided by the sponsor at the hearing that was inconsistent and/or contradictory to his evidence; information in Departmental movement records about her travel; and the substance of the allegation made anonymously to the Department. The applicant was also invited to provide further evidence to support his application, as discussed at the hearing, including evidence from Centrelink of notification of the relationship, sponsor's NAB bank statements; documentation regarding the care proceedings the sponsor is involved in in New Zealand; any other evidence he wishes the Tribunal to consider. He was provided until 6 October 2017 to respond to the information and/or provide further information, and subsequently sought and was granted an extension of time to respond to 27 October 2017.
42. On 27 October 2017 the Tribunal received by email a response from the applicant indicating the following: he does not know the difference between renting a room and a boarding house; he calls his wife's daughter by her family name and her nickname; he doesn't know exactly what is going on in New Zealand, just that his wife wants to look after her grandchildren until things are sorted out; they are not living apart permanently as she will return as soon her family settles; he cannot go there because of his visa situation; he bought a car and went to the […] birthday party in the same trip; he states they were both very stressed at the hearing and do not understand the level of questioning given that all marriages are different; he sends money to his wife even though she gets help from her family and the NZ government; he will talk to his wife about the other information requested and sent more evidence by mail.
43. No further evidence has been received to date, and the Tribunal notes that the period extended for response to the s359A/(2) (sic.) invitation has well passed and no further extension was sought or granted. In these circumstances, it makes its findings and decision on the material before it.
The Tribunal then considered the applicant’s claims and evidence and made findings about whether the requirements for a spousal relationship were met.
The Tribunal began with an overview of the meaning of “spouse” as that term is defined in s.5A of the Act.
The Tribunal found (at paragraph 46) that, on the evidence of the Marriage Certificate, the sponsor’s previous divorce and the respective ages, the parties were married to each other under a marriage that was valid for the purposes of the Act as required by s.5F(2)(a) of the Act.
The Tribunal explained, however, that in forming an opinion as to whether two persons are in a marriage relationship, regard must be had to all of the circumstances of the relationship. This includes evidence of the financial and social aspects of the relationship, the nature of the parties’ household and their commitment to each other as set out in reg. 1.15A(3) (which was extracted in an attachment to the Tribunal’s decision).
The Tribunal indicated that it had considered all of these matters and the evidence before it but was not satisfied that the applicant and the sponsor were in a marriage relationship, as defined, at the time of the Tribunal’s decision.
Relevantly, the Tribunal made the following findings about whether the other requirements for a spousal relationship were met by the applicant and his sponsor.
In relation to the financial aspects of the relationship (reg. 1.15A(3)(a) of the Regulations), the Court notes that the Tribunal stated as follows:
52. Regarding financial aspects of the relationship, the applicant claims they opened a joint bank account into which his pay was deposited, and from which they were both drawing, however the statements provided do not support the sponsor's use of this account. The sponsor in her evidence confirmed that she does not use the joint account. The applicant told the Tribunal that he purchased a BMW car for the sponsor, which has since been sold by her. Although requested, no evidence of the sponsor's personal NAB account or statements was provided to the Tribunal to show her contributions to daily expenses, or transactions that would place her in the claimed location of cohabitation. The Tribunal finds on this evidence that while there may have been financial transfers by the applicant to the sponsor, the evidence of financial aspects of the relationship does not support the existence of a genuine married relationship.
In relation to the nature of the household (reg. 1.15A(3)(b)), the Tribunal noted as follows:
49. The applicant and sponsor claim to have met at a party of a mutual friend in December 2011, and commenced a relationship after that. The applicant moved to Griffith in May 2012 and claims the sponsor came with him to Griffith and went back and forth between Griffith and Sydney until they married in October 2014 when she lived with him permanently. The sponsor in her evidence said they lived together for 2-3 years in Griffith before he moved to Perth. Despite these claims, the Tribunal noes (sic.) that only very limited evidence was provided to support the claims of their cohabitation in Griffith, including two residential tenancy agreements for periods from June 2015 - June 2017, three utility bills in joint names for periods April-August 2015 and Jan-April 2017, and two bills in the sponsor's name only, and a letter addressed to the applicant from Westpac dated November 2014 regarding opening a joint account. The Tribunal asked the applicant and sponsor whether the sponsor had informed Centrelink about the relationship, and they each claimed she had, however despite requesting it at the hearing and following, evidence to support this was never provided. The Tribunal notes and has considered the Statutory Declaration of […] who claims he lived with the applicant and sponsor at two addresses in Griffith and attests to their cohabitation as a couple. However, little detail is provided in this declaration to substantiate his opinion on their relationship and the Tribunal was unable to test the veracity of his statements. On the limited evidence provided, the Tribunal is not satisfied that the applicant and sponsor lived together as a married couple in Griffith.
54. Given the limited knowledge the applicant demonstrated regarding the sponsor's daughter and grandchildren's circumstances in New Zealand and her current living arrangements and caring obligations there, the Tribunal does not accept that the applicant has had any role in the decisions made by the sponsor with regard to her commitment to care for her grandchildren and future intentions in this regard. The Tribunal finds, on the sponsor's evidence, that her intentions are to remain in New Zealand until the issues relating to the care arrangements for her grandchildren are resolved, and given the indefinite nature of this outcome, she is not likely to return to Australia and reside with the applicant as husband and wife in the reasonably near future.
In relation to the social aspects of the relationship, the Tribunal noted as follows:
50. Regarding social aspects of the relationship, the applicant claims he told his parents about the relationship as early as 2013, and they were fully supportive. Given the significant age, cultural and religious differences between the parties, the Tribunal has some doubts about the credibility of this claim, however it notes the evidence of affidavits of support from his parents, and the evidence relating to the sponsor and applicant's visit to India in January 2017. On the basis of this evidence, the Tribunal accepts the sponsor has met and is known to the applicant's family in India. Regarding her family, it accepts that he had knowledge of her family composition and has met her children. However, their evidence about when and in what context he first met her sons was inconsistent causing the Tribunal to have some concerns about the truthfulness of their evidence about this. Nevertheless, it is prepared to accept that her family members are known to the applicant. The Tribunal finds significant and relevant that of the sponsor's […] adult children who were residing in Australia at the time, none attended the wedding and only one has provided a written statement in support of the application.
In relation to the nature of the parties’ commitment to each other (reg. 1.15A(3)(d)), the Tribunal noted as follows:
53. Regarding the nature of the commitment, the evidence provided to the Tribunal indicates that the sponsor departed Australia for New Zealand at the end of March 2017 and has been living there to date. The applicant moved to Perth from Griffith and is sharing a four bedroom house with two families of 4-5 persons each. He told the Tribunal he sleeps in the living room. The sponsor confirmed in her evidence to the Tribunal that she is caring for her grandchildren in New Zealand and supporting her previously estranged daughter and her daughter's children […] She indicated that she presently has care of her two infant grandsons and intends to seek custody of the other grandchildren […]. The applicant's knowledge of the sponsor's circumstances and future intentions was inaccurate and vague. The Tribunal finds the level of knowledge he demonstrated about this matter was inconsistent with what would reasonably be expected of a genuine spouse in these circumstances. The sponsor confirmed that she has not mentioned her marriage, relationship status or the applicant to her daughter, grandchildren or government authorities in New Zealand with whom she is presently dealing and from whom she is in receipt of income support payments.
The Tribunal also cast doubt on the applicant’s and sponsor’s truthfulness in relation to the genuineness of their relationship as follows:
51. The Tribunal accepts the sponsor travelled to India with the applicant in January 2017, and met his family. However, contrary to the evidence of travel bookings provided to support this trip, they travelled back separately, and gave inconsistent evidence about the reasons for the sponsor's early return, casting doubts again for the Tribunal about their truthfulness and the genuineness of their relationship. The evidence before the Tribunal indicates the sponsor has made numerous other overseas trips during the period of their claimed relationship, many of which the applicant appeared not to have knowledge of.
Finally, the Tribunal found that the sponsor’s intentions were to remain in New Zealand to resolve the issues with her family and that she was not likely to return to Australia in the near future and reside with the applicant as husband and wife (paragraph 54). This, the Tribunal found, went directly to the applicant’s intentions in relation to his role in his sponsor’s life and the lives of her grandchildren.
Overall, at paragraph 55, having regard to the evidence before it, the Tribunal concluded that it was not satisfied that the applicant and his sponsor ever had a mutual commitment to a shared life to the exclusion of others or were in a genuine and continuing relationship for the purposes of s. 5F(2) of the Act and cl. 820.211(2) of Schedule II to the Regulations (paragraphs 55 to 57).
What Amounts to Jurisdictional Error?
The applicant must demonstrate that the Tribunal’s decision was affected by jurisdictional error. The possible categories of jurisdictional error are not exhaustive and sometimes overlap. For migration decisions, they most commonly include the following categories:
a)Where the decision maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 39 ALD 193 (Craig) at [198].
b)Where the decision maker ignores relevant material: Craig at [198].
c)Where the decision maker relies on irrelevant material: Craig at [198].
d)Where the decision maker fails to follow mandatory procedures: SAAP and Another v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2005) 83 ALD 545 at [207]-[208].
e)Where the decision maker fails to consider the entirety of an applicant’s claims (or “integers” of the claims) as made: Minister for Immigration and Citizenship v SZRKT and Another (2013) 136 ALD 41 at [111]; Salahuddin v Minister for Immigration and Border Protection [2013] FCAFC 141 at [22].
f)Where the decision maker shows actual or apprehended bias: see SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 at [2]; AZAEY v Minister for Immigration and Border Protection [2015] FCAFC 193 at [16]-[17].
g)Where the decision is illogical, irrational or unreasonable: see Minister for Immigration v SZMDS (2010) 240 CLR 61 at [131]; Minister for Immigration and Citizenship v Li [2013] HCA 18 at [26] – [28]; Minister for Immigration v Singh (2014) 231 FCR 437 at [44].
Did the Tribunal Fall into Jurisdictional Error?
Ground 1: “The Tribunal’s decision is not natural”
There are no written or oral submissions elaborating on what the applicant means in relation to this ground of review. There are also no particulars in support of Ground 1.
It was held in WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 and in WZATH v Minister for Immigration and Border Protection [2014] FCA 969 that a court is entitled to dismiss a case seeking judicial review by reason of generalised and unparticularised grounds of review.
Here, the ground articulated is indeed vague. A general, vague and insufficiently clear application of the sort seen here provides judicial justification for the dismissal of the proceeding.
It would appear that on one level what the applicant seeks is for the Court to undertake a merits review of the Tribunal’s findings. He would, it seems, like this Court to review the material that was before the Tribunal and come to a different conclusion. This Court cannot do that. It cannot review the merits of the Tribunal’s decision or determine the applicant’s claims for a spousal visa. As outlined in Minister for Immigration and Ethnic Affairs v Wu Shian Liang & Ors (1996) 136 ALR 481 at 491:
These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision. This has been made clear many times in this court. For example, it was said by Brennan J in Attorney-General (NSW) v Quin:
The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository’s power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.
In relation to jurisdictional error, the Court notes the Minister’s contention at paragraph 21 in his written submissions as follows:
21. … to the extent that Ground 1 might be considered to be an assertion by the applicant that the Tribunal's decision was unreasonable or illogical or irrational, on the basis that the Tribunal should have held on the evidence that the applicant and his sponsor were in a genuine and continuing relationship at both the date of the application and the date of the Tribunal's decision, the applicant is in reality seeking to impermissibly attack the merits of the Tribunal's decision.
In relation to what constitutes a decision that gives rise to jurisdictional error by reason of irrationality or illogicality, the Court is guided by the principles outlined in Minister for Immigration v SZMDS (2010) 240 CLR 61 (SZMDS) at [131], as follows:
[131] What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
The Court also notes the decision in Minister for Immigration and Citizenship v Li [2013] HCA 18 at [26] – [28], as follows:
[26] The rationality required by “the rules of reason” is an essential element of lawfulness in decision-making. A decision made for a purpose not authorised by statute, or by reference to considerations irrelevant to the statutory purpose or beyond its scope, or in disregard of mandatory relevant considerations, is beyond power. It falls outside the framework of rationality provided by the statute. To that framework, defined by the subject matter, scope and purpose of the statute conferring the discretion, there may be added specific requirements of a procedural or substantive character. They may be express statutory conditions or, in the case of the requirements of procedural fairness, implied conditions. Vitiating unreasonableness may be characterised in more than one way susceptible of judicial review. A decision affected by actual bias may lead to a discretion being exercised for an improper purpose or by reference to irrelevant considerations. A failure to accord, to a person to be affected by a decision, a reasonable opportunity to be heard may contravene a statutory requirement to accord such a hearing. It may also have the consequence that relevant material which the decision-maker is bound to take into account is not taken into account.
[27] In Wednesbury Corporation, Lord Greene MR observed that the word “unreasonable” in administrative law was used to encompass failure by a decision-maker to obey rules requiring proper application of the law, consideration of mandatory relevant matters and exclusion from consideration of irrelevant matters:
If he does not obey those rules, he may truly be said, and often is said, to be acting “unreasonably”.
That kind of unreasonableness may be taken to encompass unreasonableness from which an undisclosed underlying error may be inferred.
[28] Beyond unreasonableness expressive of particular error however, it is possible to say, as Lord Greene MR said, that although a decision-maker has kept within the four corners of the matters it ought to consider “they have nevertheless come to a conclusion so unreasonable that no reasonable authority could ever have come to it.” In such a case the court may interfere. That limiting case can be derived from the framework of rationality imposed by the statute. As explained by Lord Greene MR, it reflects a limitation imputed to the legislature on the basis of which courts can say that parliament never intended to authorise that kind of decision. After all the requirements of administrative justice have been met in the process and reasoning leading to the point of decision in the exercise of a discretion, there is generally an area of decisional freedom. Within that area reasonable minds may reach different conclusions about the correct or preferable decision. However, the freedom thus left by the statute cannot be construed as attracting a legislative sanction to be arbitrary or capricious or to abandon common sense.
Finally, the Court notes the decision in Minister for Immigration v Singh (2014) 231 FCR 437 at [44] as follows:
[44] In order to understand how the standard of legal unreasonableness is to be ascertained, it is important to see where the concept fits in terms of the court’s supervisory powers over executive or administrative decision-making. In Li, the judgments identify two different contexts in which the concept is employed. Legal unreasonableness can be a conclusion reached by a supervising court after the identification of an underlying jurisdictional error in the decision-making process: Li at [27]–[28] per French CJ, at [72] per Hayne, Kiefel and Bell JJ; compare Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 ; 266 ALR 367 ; 115 ALD 248 ; [2010] HCA 16 at [39] per Gummow ACJ and Kiefel J. However, legal unreasonableness can also be outcome focused, without necessarily identifying another underlying jurisdictional error. The latter occurs in what French CJ (in Li at [28]) calls “an area of decisional freedom”: it has the character of a choice that is arbitrary, capricious or without “common sense”. See also the plurality at [66] referring to an area within which a decision-maker has a genuinely free discretion. The plurality in Li described this as an inference to be drawn because the court cannot identify how the decision was arrived at. In those circumstances, the exercise of power is seen by the supervising court as lacking “an evident and intelligible justification”. Gageler J also uses language suggestive of review for legal unreasonableness being concerned with an examination by the supervising court of the outcome of the exercise of power (in Li at [105]):
It is, of course, true that, as a measure in fact of time, space, quantity and conduct, reasonableness is a concept deeply rooted in the common law: and so, in such cases, is the power of a court to say whether a particular decision of that fact is or is not within the bounds of reason”: Giris Pty Ltd v FCT (1969) 119 CLR 365 at 383–384; [1969] ALR 369 at 380; [1969] HCA 5. Review by a court of the reasonableness of a decision made by another repository of power “is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process” but also with “whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”: Dunsmuir v New Brunswick [2008] 1 SCR 190 at [47].
Having reviewed the Tribunal’s decision, the Court does not find that the Tribunal’s decision was unreasonable, illogical or irrational as described in Minister for Immigration v SZMDS (2010) 240 CLR 611 at [128]-[130]. The findings that the Tribunal made were entirely open to it. The Tribunal assessed the considerable evidence before, weighed up all of that evidence, made credibility findings that were open to it and ultimately determined that the evidence before the Tribunal did not allow for a finding that the relationship between the applicant and his sponsor was legitimate for migration purposes. No criticism can be directed at the Tribunal for a decision made on the evidence and the way it came to that decision. The Tribunal's decision in this matter was formed entirely on a rational basis.
Overall, in relation to Ground 1, it cannot be said that the Tribunal engaged in any jurisdictional error.
Ground 2: “The Tribunal’s decision has some errors”
Unfortunately, Ground 2 contains no particulars. It is unclear to the Court what errors, in particular, are alleged to have been made by the Tribunal.
Ultimately, the Court finds that there is simply no evidence that the Tribunal engaged in any errors or any errors of the sort that amount to jurisdictional error.
The Tribunal’s findings were open to it on the evidence. The Tribunal did not fail to consider any of the applicant's claims or any relevant information. The Tribunal clearly set out at paragraphs [63]-[69] the basis for its findings. These paragraphs demonstrate an evident, transparent and intelligible justification for the Tribunal's decision: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [76], [105]; Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 at [44]-[45]. The Tribunal’s decision was entirely within its 'area of decisional freedom' (Li at [28], [66], [105]; Singh at [44]) and the Tribunal's decision was not legally unreasonable. Further, it cannot be said that the reasons advanced by the Tribunal are based on irrelevant considerations or fail to take into account relevant information. The Tribunal looked at the evidence it had before it and did so exhaustively. A complete analysis was provided. The Tribunal carefully considered the facts of the case, the legislation it was required to examine and all evidence provided by the applicant. The analysis provided by the Tribunal in relation to this matter is unimpeachable.
Conclusion
For the reasons outlined above, the application for judicial review is dismissed.
The applicant is to pay the Minister’s costs fixed in the sum of $7,328.
I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Associate:
Date: 8 May 2018
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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