Singh v Minister for Immigration

[2017] FCCA 1706

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1706

Catchwords:
MIGRATION – Application to review decision of Administrative Appeals Tribunal – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.5F, 359A

Migration Regulations 1994 (Cth), reg.1.15A, Schedule 2 cls.820.211, 820.221

Cases cited:

Applicant M164/2002 v Minister for Immigration and Multicultural and

Indigenous Affairs [2006] FCAFC 16

CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146

Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA

48

Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986)

162 CLR 24

Minister for Immigration and Border Protection v Singh [2014] FCAFC 1
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18
Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429; [2009] HCA 39
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16
Minister for Immigration and Citizenship v SZNPG (2010) 115 ALD 303; [2010] FCAFC 51
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17
NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264; [2004] FCAFC 328
Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425; [2001] HCA 28
SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668
SZBEL v Ministerfor Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63
SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26

Tran v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCAFC 297

Applicant:

MANPREET SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2459 of 2015

Judgment of: Judge Barnes

Hearing date: 11 July 2017

Delivered at: Sydney

Delivered on: 11 July 2017

REPRESENTATION

The Applicant: In Person

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application be dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the sum of $6,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2459 of 2015

MANPREET SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application for review of a decision of the Administrative Appeals Tribunal (the Tribunal) dated 11 August 2015.  The Tribunal affirmed a decision of a delegate of the First Respondent not to grant the Applicant a Partner (Temporary) (Class UK) visa. 

2. The Applicant, a citizen of India, arrived in Australia in June 2009 as the holder of a Student visa. That visa ceased in September 2011. In February 2012, the Applicant applied for a Partner visa on the basis of his relationship with his sponsor, Ms Blyton, whom he had married on 16 December 2011. The Applicant provided information to the Department in support of the application and in response to a request of 22 August 2013 for further evidence of both the relationship and in relation to applicable criteria in Schedule 3 to the Migration Regulations1994 (Cth) (the Regulations) and whether there were compelling reasons for waiving the need to meet these criteria.

3. On 19 September 2013 the delegate refused to grant the Applicant a Partner visa on the basis that he did not meet cl.820.211(2)(d) in Schedule 2 to the Regulations. That criterion required an applicant who was not the holder of a substantive visa to satisfy certain Schedule 3 criteria unless the Minister was satisfied there were compelling reasons for not applying for those criteria. The delegate found that the Applicant did not hold a substantive visa at the time of the visa application and was not satisfied that there were compelling reasons for waiving the Schedule 3 criteria.

4. The Applicant sought review by the Tribunal. In support of the application for review, he provided documentation through his migration agent, much of it relating to the relationship. On 14 April 2015 the Tribunal wrote to the Applicant under s.359A of the Migration Act 1958 (Cth) (the Act) inviting him to comment on or respond to information that he was not the holder of a substantive visa at the time of application and did not make his application within 28 days of that visa expiring. It was pointed out that he must have compelling reasons for not meeting that (Schedule 3) requirement. The letter also put to the Applicant what was described as “confidential information available to the Tribunal”, indicating he was involved in a bogus marriage.  This was said to be relevant because, if true, it indicated that he was not in a genuine spouse relationship, would not meet the s.5F definition of a “spouse”, and hence would not meet the criterion in cl.820.211 which required that the Applicant be the spouse or de facto partner of an Australian citizen, permanent resident or eligible New Zealand citizen. The Applicant was also again invited to provide information as to compelling reasons to waive the Schedule 3 criteria.

5. In a response of 24 April 2015, the Applicant’s migration agent addressed the issue of compelling reasons, but did not respond directly to the confidential information.  Further information was provided in relation to the relationship. 

6. The Applicant was invited to and attended a Tribunal hearing at which both he and his sponsor gave evidence.  The only evidence before the Court of what occurred in the Tribunal hearing is the Tribunal’s account in its reasons for decision and references in a post-hearing letter from the Applicant’s migration agent to issues raised by the Tribunal at the hearing.

7. After the hearing the Tribunal sent a further s.359A letter to the Applicant, putting to him the details and source of the information which indicated that he was in a bogus relationship. The letter referred to information submitted to the Tribunal on 17 September 2014 from a Mr Bhupinder Singh, stating that the Applicant (who was described by name, date of birth, passport number and citizenship) was in a “fake relationship” with an Australian citizen, Ms Blyton; that she was in a relationship with her original boyfriend and had a child with him after she married Mr Singh; that the Applicant and sponsor had never lived together or had a sexual relationship; and that the relationship was formed “in exchange of big money to get permanent residency”.  The Tribunal explained that this information was relevant because if true it indicated that the Applicant was not in a genuine spousal relationship with his sponsor. 

8. The Applicant responded through his migration agent.  The migration agent submitted a statutory declaration in which a Mr Bhupinder Singh of Westmead claimed he knew the Applicant and sponsor but denied having written to the Department in respect of the Applicant’s relationship.  The agent also addressed information said to have been raised by the Tribunal at the hearing, such as “the couple’s relationship is contrived and not genuine”, and inquiries by the Tribunal member about a discrepancy between the sponsoring wife’s residential address provided to the Department and that recorded on her medical records. 

9. As indicated, on 11 August 2015 the Tribunal affirmed the decision not to grant the Applicant a Partner visa. In its reasons for decision the Tribunal referred to the background to the application for review and the s.359A letters. While it did not summarise the response to the second s.359A invitation at the start of its reasons for decision, the Tribunal addressed that response later in its findings and reasons.

10. The Tribunal stated that the issue for consideration was whether the parties were in a genuine and continuing spouse relationship as required by cl.820.211(2)(a) and cl.820.221 in Schedule 2 to the Regulations. It referred to the definition of “spouse” in s.5F of the Act and to the fact that in forming an opinion on the definition of spouse it was required to have regard to all of the circumstances of the relationship, including the matters set out in reg.1.15A(3) in the Regulations.

11. The Tribunal found that the parties were validly married. It went on to consider the circumstances of the relationship in terms of the matters set out in reg.1.15A(3). With regard to the financial aspects of the relationship, the Tribunal acknowledged that a quantity of information had been submitted pointing to financial pooling of the finances of the Applicant and sponsor. The Tribunal found that evidence submitted as to a joint bank account indicated that generally any funds deposited by the Applicant were immediately rerouted to another bank account held by the Applicant (in a round robin fashion) so that token amounts remained in the joint account. The Tribunal observed that the joint account seemed to be used principally for takeaway food. It later referred to payment of rent and sundry items. The Tribunal considered the Applicant’s oral explanation that this transfer arrangement was based on a fear of bank fraud. It noted there was evidence of one instance of fraudulent misappropriation, but was not convinced that this arrangement was solely based on the fear of bank fraud. It had regard to what it saw as the “stark” difference between the Applicant’s evidence at the Tribunal hearing about the amount of his income and the substantially lower taxable income he declared to the ATO on his tax return.  The Tribunal also had regard to the fact that the sponsor claimed she was a homemaker and did not see a need to seek work outside the home, as she was satisfied with being supported by the Applicant.

12. The Tribunal found that the information before it coincided with what it described as the s.359A information (which was clearly a reference to the bogus relationship information) indicating the relationship was formed “in exchange for big money to get permanent residency” as well as the sponsor’s oral evidence that she did not need to work.  The Tribunal was of the view that the stark discrepancy between the declared taxable income of $35,100 and the Applicant’s claim that he earned what amounted to around $78,000 a year pointed to the possibility that the disparity could be accounted for as payments to the sponsor for participation in a bogus marriage as alleged in the “dob-in” letter.

13. It acknowledged there were joint utility accounts, although they did not feature as debits from the joint bank account, that the rent and other sundry expenses such as supermarket bills were paid from the joint account and that there was a confirmation of beneficiary for superannuation purposes.  It gave weight to this financial information, but was not satisfied with the extent of financial pooling as part of the financial aspect of the relationship.

14. As to the nature of the household, the Tribunal considered the Applicant’s claims about maintaining a household at a specified address in Westmead, Sydney and evidence as to the rent, the sponsor’s home duties and the background to their marriage and relationship, including affidavit evidence from parents. The Tribunal also had regard to a 2014 medical report (provided by the Applicant’s representative) from the sponsor’s doctor on the Central Coast. This contained a postal address for the sponsor in Woy Woy, not the Westmead address provided to the Department and where the Applicant lived. The Tribunal recorded that this discrepancy was discussed at the hearing. It considered the sponsor’s explanation that she had used a friend’s address temporarily for postal service and had forgotten to change it. It also recorded that it had put the information about the different address to the Applicant in a s.359A letter and addressed the oral evidence and the post-hearing submission in this respect.

15. The Tribunal considered the claim that it was a simple mistake that the sponsor had not corrected, but had regard to the fact that the sponsor had visited the Central Coast doctor for pregnancy advice during 2014.  It also considered her claim at the hearing that she had changed her postal address a year or two earlier.  However it had regard to the fact that she had claimed in a post-hearing submission that she had been living in Westmead with the Applicant continuously for four years.  The Tribunal did not accept that simple forgetfulness explained why the sponsor had not changed her address and was not satisfied with the parties’ explanation.  It was not satisfied that the sponsor was living at Westmead with the Applicant despite her claims.  It observed that this information confirmed the “dob-in” allegation that the parties had never lived together.

16. As to the social aspects of the relationship, the Tribunal had regard to evidence, including declarations from friends and family.  It gave little weight to the unsworn statement from the sponsor’s mother, because while it sought to confirm the genuineness of the relationship, it did not elaborate on details of the parties’ married life together, but rather talked about the sponsor’s life history.  The Tribunal found that there was a paucity of photographs and that what was submitted consisted largely of photographs of the sponsor and Applicant together, and did not indicate social acceptance by friends and acquaintances.  It gave little weight to these photographs as indicative of social acceptance of the relationship.  The Tribunal did not accept the parties’ explanation that this was a by-product of not having a significant social life and the fact that the sponsor’s friends were on the Central Coast.  It found the lack of evidence of social acceptance of the relationship supported the allegation that the Applicant and sponsor lived separately and apart. 

17. As to the nature of the persons’ commitment to each other, the Tribunal stated that it had explored in oral evidence the degree of companionship and emotional support the parties drew from each other.  It had regard to the “dob-in” letter and the parties’ two opportunities to comment on this information, including after the hearing. It considered their denial of the truth of the allegation and insistence they had a genuine relationship and the fact that a person claiming to be Bhupinder Singh had declared he was a former flatmate of the Applicant, supported the relationship and denied he had ever lodged a complaint with the Department. The Tribunal observed that, as the s.359A invitation stated, the allegation had been lodged with the Tribunal. It considered the response to the s.359A letter from the representative and the statutory declaration of Bhupinder Singh, but gave greater weight to the initial “dob-in” letter, rather than to the denial declaration.  It had regard to the fact that the allegation was sent in unsolicited, that the sponsor’s pregnancy corresponded with the date of the “dob-in” letter and the details therein and that the “dob-in” letter also provided some plausible explanation as to why the sponsor had a separate, previously undisclosed, postal address – to hide the fact she was living in a non-exclusive relationship.  It was also said to explain why the sponsor used the Woy Woy address when dealing with her doctor regarding her previous medical history and pregnancy, that explanation being that she was not actually living in Westmead with the Applicant as claimed. 

18. The Tribunal described the oral evidence of the sponsor regarding the reason she had a separate postal address listed with her doctor.  It considered her explanation that the change of address to a house in Woy Woy was put into place after she moved from her family home for postal security reasons.  As indicated, it did not accept this explanation, as she also claimed to be living with the Applicant at the Westmead address of the marital home at that time.  It found that the sponsor was unable to explain satisfactorily why she would not have given the doctor the Westmead address, where she claimed she was living at that time.  The Tribunal observed that the sponsor became visibly uncomfortable when questioned on this anomaly.  It did not accept that this address was explained simply on the basis of a mistake or forgetfulness on the sponsor’s part.  It also found that in some respects this explanation contradicted the earlier explanation provided.  It did not accept that the explanation that the sponsor had simply forgotten to change the address given to her long-term doctor was plausible when consideration was given to the length of the claimed relationship with the Applicant.  The Tribunal was not satisfied, despite the claims and evidence, that a mutual commitment to the relationship was present at the time of application and decision.

19. The Tribunal also considered the “dob-in” information under the heading “any other relevant considerations”, as well as the parties’ denial that they were in a bogus marriage.  It reiterated that it was satisfied that the “dob-in” allegation was credible and that the sponsor had given contradictory comments in her oral evidence about her undisclosed postal address in circumstances where she and the Applicant claimed they began to live together in December 2011.  The Tribunal was of the view that this information must be juxtaposed with the “dob-in” allegation that the sponsor was living elsewhere with another individual to whom she became pregnant.  It observed that the pregnancy corresponded with the date of the “dob-in” letter and the allegation that that pregnancy was said to be to an alleged boyfriend, not the Applicant.  It noted that the Central Coast doctor had stated that the sponsor had been a patient of that practice since birth.  The Tribunal was not satisfied that a genuine and exclusive spouse relationship was present at the time of the application.

20. The Tribunal found that the parties did not have a mutual commitment to a shared life to the exclusion of others and a genuine continuing relationship where they lived together and not separately and apart on a permanent basis and hence that the Applicant did not meet the definition of spouse in s.5F of the Act. 

21. Accordingly, the Tribunal found that the Applicant did not meet the criteria in cl.820.211(2)(a) and 820.221 in Schedule 2 to the Regulations. Nor did he satisfy alternative criteria. For these reasons, the Tribunal concluded that the Applicant did not satisfy the criteria for the grant of the visa.

22. The Applicant sought judicial review by application filed on 7 September 2015 containing four grounds of review.  At that time he was legally represented.  However the Applicant is now self-represented.  He filed written submissions in which he set out the factual background.  He indicated that he has no idea what the grounds in his application were or whether there was any Amended Application.  He stated that he relied on 15 grounds he set out in his submissions.  When asked today, he was not sure whether he also wanted to rely on the grounds in his Application.  As the Applicant is self-represented, the solicitor for the First Respondent addressed in oral submissions, and I have considered, the grounds in the application as well as the grounds in the Applicant’s submissions.

23. I also gave the Applicant the opportunity today to elaborate on any of his grounds or to raise any other concerns he had with the Tribunal decision or procedures.  I have considered his responses.

24. There is a degree of overlap between aspects of the grounds in the original application, the grounds in the written submissions, and issues raised in oral submissions.  It is convenient to consider first the concerns the Applicant raised in oral submissions, which in part amounted to an elaboration of the grounds in the written submissions.

1. The Applicant took issue with the fact that the Tribunal “accepted” the “dob-in” letter. It was suggested that the Tribunal did not accept the subsequent documents the Applicant provided. It appears that this was intended to be a reference to the statutory declaration in the name of Mr Bhupinder Singh provided to the Tribunal in response to the second s.359A letter.

2. This concern is also reflected in paragraphs 7 and 8 in the Applicant’s written submission which take issue with the fact that greater weight was given to the “dob-in” letter than to the statutory declaration. 

3. However the Applicant’s concerns in this respect do not establish jurisdictional error.  The “dob-in” letter was received by the Tribunal in September 2014. Information in that respect was put to the Applicant, pursuant to s.359A of the Act, in two letters. Any concern as to the adequacy of the disclosure of particulars of the information in the first s.359A letter is overcome by the second s.359A letter which gave clear particulars of the information the Tribunal considered would be the reason or part of the reason for affirming the decision under review, explained why the information was relevant to the review and its consequences and invited the Applicant to respond. The Applicant responded through his migration agent’s letter and the statutory declaration in the name of Mr Bhupinder Singh.

4. In its reasons for decision, the Tribunal exhibited an awareness of this evidence, but gave greater weight to the initial “dob-in” letter over the statutory declaration for reasons which it gave (in particular at paragraphs 33 and 34 of its reasons).  Essentially, the Tribunal had regard to the fact that the “dob-in” letter was unsolicited; the fact that the sponsor’s pregnancy corresponded with the date of the “dob-in” letter; and the fact that the “dob-in” letter provided some plausible explanation for why the sponsor had a separate previously undisclosed postal address and why she used that address when dealing with her doctor regarding her previous medical history and pregnancy.  As set out above, it saw this as indicating that the sponsor was not actually living in Westmead with the Applicant as claimed.

5. As the First Respondent submitted, it was for the Tribunal to identify such material as it found relevant to its reasoning and to give it appropriate weight (see Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297 and Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 41). This is not a case in which the Tribunal can be said to have misapprehended or to have given disproportionate weight to an aspect of the evidence, such that its findings could be said to be unreasonable in a legal sense (see Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [72]) or that its approach could be seen to be irrational or illogical (see Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16).

6. The Tribunal’s approach to the evidence, including the weight it gave to particular items of evidence, was reasonably open to it on the material before it for the reasons which it gave. 

7. Insofar as in his written submission (paragraph 8) the Applicant contended that it had to be proven beyond reasonable doubt that the “dob-in” letter was genuine and/or that the statutory declaration was not, it is not necessary for the Tribunal to be satisfied beyond reasonable doubt (see Applicant M164/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 16). No jurisdictional error is established on the basis contended for in this oral submission or in paragraphs 7 and 8 in the written submissions.

8. The Applicant also submitted that the Tribunal took into account irrelevant matters and failed to consider the Schedule 3 criteria. I took this as also intended to be a submission that the Tribunal should have considered whether there were compelling reasons not to apply Schedule 3 criteria. This argument was also advanced in ground 1 of the application which contended that the Tribunal erred by failing to decide whether Schedule 3 applied, which was said to be the core issue in the review.

9. The Applicant’s concern in this respect is also reflected in “grounds” 1, 3, 4 and 5 in his written submission, which take issue with the Tribunal’s failure to consider whether there were compelling reasons to waive Schedule 3 criteria by reference, in particular, to the sponsor’s medical conditions and other material and documents provided to the Tribunal.

10. It may well be that this issue is expressed in these terms because while the delegate raised with the Applicant the need to provide information as to the genuineness of the relationship (as well as the Schedule 3 criteria and compelling reasons), the delegate’s decision was made solely on the basis that the Applicant did not meet the Schedule 3 criterion that he hold a substantive visa or make the application within 28 days after he ceased to hold such a visa and the information provided did not satisfy the delegate that there were sufficiently compelling reasons to waive the Schedule 3 requirements.

11. However the Applicant’s concerns in this respect are misconceived.  The Tribunal review was a review de novo. The Applicant’s representative clearly understood this, providing information that was said to relate to the genuineness of the relationship, as well as to whether there were compelling reasons to waive the Schedule 3 criteria.

12. The Tribunal did not fall into error by failing to address the Schedule 3 criteria or whether there were compelling reasons to waive those requirements. There are several criteria in cl.820.211. One of these, cl.820.211(2)(d), required the Applicant to meet the Schedule 3 criteria or for there to be compelling reasons for waiver. However another criterion, cl.820.211(2)(a), required the Applicant to be the spouse of, relevantly, an Australian citizen or permanent resident. These requirements are cumulative. Hence it was open to the Tribunal to first consider and determine whether the Applicant met the definition of “spouse” and hence satisfied cl.820.211(2)(a). Having found that he did not satisfy the criterion in cl.820.211(2)(a), the Tribunal was not also required to consider the requirements of other criteria (such as cl.820.211(2)(c) and (d)), and in particular the question of the Schedule 3 criteria and waiver.

13. In these circumstances the Tribunal did not fall into error by failing to consider the evidence or claims advanced by the Applicant in support of waiver of Schedule 3 criteria and no jurisdictional error has been established on that basis.

14. None of the matters raised by the Applicant in oral submissions identify jurisdictional error on the part of the Tribunal.

15. The first ground in the application has been addressed.  It is not made out.

16. The second ground is that “The Tribunal failed to investigate other requirements for a spousal relationship.” The particulars refer to paragraphs 15 to 21 of the Tribunal decision which contain part of the Tribunal’s consideration of the factors in reg.1.15A(3) in the Regulations, primarily the financial requirements. The Applicant did not otherwise specify what “other requirements” were not considered.

17. The Tribunal was required to consider all of the circumstances that were relevant.  The definition of “spouse” in reg.1.15A provides in reg.1.15A(2) that the Tribunal must consider all of the circumstances of the relationship, including the matters set out in reg.1.15A(3). The Tribunal considered the matters set out in reg.1.15A(3). It is clear that it engaged in an active intellectual process in doing so and gave genuine consideration to the Applicant’s claims and circumstances and supporting evidence. The Tribunal expressly referred to the various elements of reg.1.15A(3) and the evidence in that respect and made findings.

18. Whether or not the Applicant’s concern is with the Tribunal’s consideration of the financial aspects of the relationship or more generally, the Tribunal did not err in the manner contended for in ground 2.  It is for an applicant to put evidence and claims before the Tribunal.  There is no general duty of investigation on a Tribunal.  The Tribunal gave the Applicant the opportunity to provide further information in support of his claim that he was in a spousal relationship, such as to meet the criteria for the visa.  This is not a case in which anything has been identified to establish that there was a critical fact, the existence of which was easily ascertained, such as to give rise to a duty to inquire on the part of the Tribunal in the sense considered in the Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429; [2009] HCA 39 at [25].

19. If the Applicant’s concern is about the Tribunal’s approach to the financial information before it, the Tribunal had regard to the material submitted in that respect.  Its reasoning in relation to the adequacy of the financial pooling, having regard in particular to the round robin deposits and withdrawals from the joint account and the discrepancy between the Applicant’s declared salary and his disclosed income, was reasonably open to it on the material before it for the reasons which it gave.  It has not been established that it reached a finding without a logical or probative basis.  Neither legal unreasonableness or illogicality or irrationality amounting to jurisdictional error have been established (see Li and SZMDS).  Nor has it been established that the Tribunal failed to have regard to evidence in a manner constituting jurisdictional error. 

20. Ground 2 in the application as pleaded, or as may have been intended, is not made out. 

21. Ground 3 in the application is that the Tribunal erred by not giving sufficient weight to evidence, being the statutory declaration of Mr Bhupinder Singh, “who allegedly dubbed-in (sic)” the Applicant, which was said to have been provided to “rebut” the allegation raised in communications under s.359 (sic) of the Act. 

22. I have addressed this issue above in considering the Applicant’s oral submissions.  The ground in the application is expressed in terms of a failure to give sufficient weight.  However it is well-established that the weight to be given to items of evidence is a matter for the Tribunal (see Minister for Immigration and Citizenship v SZNPG (2010) 115 ALD 303; [2010] FCAFC 51). As discussed above, the Tribunal considered the evidence before it in that respect, including both the “dob-in” letter and the subsequent declaration.  Legal unreasonableness, illogicality or irrationality in the decision-making process in that regard, or, indeed, in the ultimate outcome of the Tribunal decision, has not been established (see Li and Minister for Immigration and Border Protection v Singh [2014] FCAFC 1). For the reasons discussed above, ground 3 is not made out.

23. Ground 4 in the application is that the Tribunal erred “by not accepting the evidence” of the Applicant’s spouse in respect of her different residential address.  The particulars refer to the Tribunal’s consideration (at paragraphs 23, 25 and 26) of the evidence from the spouse and her explanation.  As discussed above, for reasons which it gave, the Tribunal did not accept the explanation for the sponsor’s second undisclosed address, in particular that simple forgetfulness was why the sponsor had not changed her address with her doctor.

24. As pleaded, this ground largely invites impermissible merits review.  There was no obligation on the Tribunal to accept uncritically evidence before it and, as indicated, the weight to be given to particular items of evidence is a matter for the Tribunal. 

25. More generally, the Tribunal’s findings in relation to the credibility of the sponsor’s explanation and the inferences it drew were reasonably open to it for the reasons which it gave on the material before it. This issue was clearly raised at the Tribunal hearing. No jurisdictional error is established on this or any other basis (see generally CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 at [38]).

26. The grounds in the application are not made out.

27. The Applicant indicated in submissions that he did not know if an Amended Application had been filed.  There was no Amended Application.  However, I have considered each of the numbered paragraphs at the conclusion of the Applicant’s written submission on the basis that these paragraphs were intended to be “grounds” on which the Applicant wished to rely.

28. Paragraphs 1, 3, 4 and 5 deal with Schedule 3 and waiver issues. It is claimed (repeating the claim in the application) in paragraph 1 that the “core issue” in the review was whether Schedule 3 applied and consideration of whether there were compelling reasons for waiver. As indicated, that was not the “core” issue.  As the Tribunal found that one of the other cumulative criteria for the visa was not met, it was not obliged to also address this issue. 

29. It follows from this that the concern in paragraph 3, that the Applicant “forwarded maximum documents in support of his claim for waiving the Schedule 3 Conditions but the [Tribunal] did not account the sponsors medical conditions and made the decision without any consideration of relevant matterials (sic) and documents to waive the Conditions”, is not indicative of jurisdictional error.

30. Given its findings about the spousal relationship and that the Applicant did not meet cl.820.211(2)(a), it was not necessary for the Tribunal to also consider any of the other criteria or the evidence or claims advanced in support of waiver in relation to Schedule 3 criteria.

31. For the same reason, the claims in paragraph 4, that the Tribunal overlooked the medical history of the sponsor and how she would be affected if the Applicant left the country, and in paragraph 5, that the Tribunal erred in failing to consider the sponsor’s appeal on compassionate grounds, are not made out.

32. Paragraphs 2 and 12 to 15 in the written submission raise procedural fairness issues. Paragraph 2 is a claim that the Tribunal erred in failing to afford procedural fairness to the Applicant in its questioning about compelling reasons during the hearing. There is no transcript of the Tribunal hearing in evidence to support such a claim. It is the case that the Tribunal does not refer in its decision record to any questioning of the Applicant during the hearing with respect to Schedule 3 or waiver. However, this is unsurprising and not indicative of error, given that the Tribunal found that the Applicant did not meet the spouse criterion in cl.820.211(2)(a). Therefore it did not have to proceed to consider the Schedule 3 criteria or waiver in its reasons.

33. Insofar as there is intended to be a more general complaint of a lack of procedural fairness, there is nothing in the material before the Court to indicate that the Tribunal failed to comply with the procedural fairness requirements in Division 5 of Part 5 of the Act (and see s.357A) either generally or on any of the bases contended for in paragraphs 12 to 15, which complain that the Tribunal made a decision “on limited information materials and mistook the facts”; that the Applicant had “no intention” to mislead and supplied “all informations” to the Department and Tribunal; that the Applicant was denied natural justice “when his attention was diverted on several irrelevant issues” which were said to have nothing to do with the real issue; and that the Tribunal “did not process” the application “in  judicial manner”.

34. The Applicant was given the opportunity to elaborate on these claims today and did not do so.  It is apparent on the material before the Court that the Applicant was invited to and attended a Tribunal hearing.  It is also apparent, not only from the Tribunal’s account of the hearing, but also from a subsequent letter from the Applicant’s migration agent, that during the hearing the Tribunal raised issues about whether the couple’s relationship was contrived and not genuine and also adverse information including the “dob-in” letter, and concern about the financial and other information.  It also inquired about the discrepancy between the sponsor’s residential address provided to the Department and that on her medical records.  The Applicant’s adviser provided a response to Tribunal concerns, including an assertion that the couple was in a genuine relationship and a reference to their explanation for the sponsor’s addresses.  

35. While the delegate had reached his or her decision based on the Schedule 3 criteria, I am satisfied that it was made clear to the Applicant that the genuineness of the relationship was in issue and that this issue was raised at the hearing. Such a dispositive issue was drawn to the Applicant’s attention (see SZBEL v Ministerfor Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63). It is also apparent that the Applicant understood and was on notice of the relevance of the credibility of his evidence and that of his sponsor, as well as the significance of the genuineness of the spousal relationship. These issues were identified in the s.359A letters and the Applicant’s earlier written submissions, as well as at the hearing. In addition, the specific issue of the relevance of the sponsor’s address was drawn to the attention of the Applicant for comment at the hearing, as is apparent from the Tribunal decision and the post-hearing submission.

36. I note, in any event, that the Tribunal’s concern about the sponsor’s evidence related to inconsistencies in her evidence and that information within s.359A(1) of the Act does not include doubts, inconsistencies and the absence of evidence (see SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26 at [18]). The Tribunal has not been shown to have failed to comply with s.359A in relation to those matters that constituted information within s.359A(1) of the Act, in particular, in relation to the “dob-in” letter.

37. There is nothing in the material before the Court to indicate that the Applicant was denied procedural fairness, whether in the hearing or otherwise, such as to constitute jurisdictional error.

38. Paragraphs 6 and 11 in the Applicant’s written submissions assert that the Tribunal “became biased in the time of questioning about the false information about his spousal relationship”, and that “the way the Member was asking questions were beyond judicial (sic) jurisdiction” and indicated bias.  An allegation of bias is a serious one; it must be firmly and distinctly made and clearly proven (Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17).

39. In this case, there is no transcript in evidence of the Tribunal hearing, and the Tribunal’s account of what occurred at the hearing is not supportive of a claim of either actual or apprehended bias. 

40. It is a rare and exceptional case in which the Tribunal’s statement of reasons alone can be relied on to support a finding of actual bias (see SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668). This is not such a case.

41. There is nothing in the material before the Court to suggest that the Tribunal did not bring an open mind to the Applicant’s matter.  The mere fact that it made adverse findings does not give rise to an inference of bias or by itself suggest that it approached its task with a mind not open to persuasion.  Nor is there anything in the material before the Court to establish an apprehension of bias seen from the perspective of the hypothetical fair-minded lay person properly informed as to the nature of the proceedings, the matters in issue and the conduct said to give rise to an apprehension of bias (see Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425; [2001] HCA 28). Nor is this a case in which the fact finding has been conducted in a manner which is unreasoned and mere assertion lacking rational or reasoned foundation in the sense considered in NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264; [2004] FCAFC 328 at [115] (and see, more generally, Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48).

1. As indicated, the Tribunal’s factual findings were reasonably open to it on the material before it for the reasons which it gave. Insofar as these grounds disagree with the Tribunal’s findings they invite impermissible merits review. The “grounds” in paragraphs 6 and 11 are not made out.

2. Paragraphs 7 and 8 take issue with the weight the Tribunal gave to the statutory declaration, as distinct from the “dob-in”.  It is contended that the Tribunal erred in not “follow[ing] the Common law ground for for (sic) believing in evidence. It should be proven beyond reasonable doubt” (emphasis in original).  As indicated above, it is not necessary for the Tribunal to be satisfied beyond reasonable doubt.  Insofar as paragraph 8 asserts that the “dob-in” letter “supplied to the MRT as fake” (apparently intended to assert that it “was” fake), this seeks impermissible merits review.  I refer to my earlier reasoning.  These “grounds” are not made out.

3. Paragraphs 9 and 10 contend that the Applicant and the sponsor were “very much consistent in giving details about their spousal relationship but the Tribunal gave emphasis on the irrelevant matters”, and that the sponsor “very clearly said that she changed the address time to time and for some time she was not living in Sydney but the MRT did not believe and took as not consistent with the Medical Records”.   

4. The Applicant did not identify any irrelevant matters the Tribunal was said to have taken into account.  Insofar as this assertion takes issue with the Tribunal rejecting the evidence of the Applicant’s spouse, these grounds seek impermissible merits review.  As indicated, the Tribunal was not obliged to accept uncritically the claims or evidence in this respect and the weight to be given to items of evidence was a matter for it to assess as part of its fact finding function.  The Tribunal has not been shown to have fallen into jurisdictional error in making its findings in this respect, including on the basis of reasonableness and/or illogicality or irrationality. 

5. As jurisdictional error has not been established on any of the bases contended for by the Applicant, the application must be dismissed. 

6. The Applicant has been unsuccessful in these proceedings.  It is appropriate that he meet the Minister’s legal costs.  In the circumstances of the present case, having regard to the nature of this and other similar matters, I am of the view that costs should be slightly less than the amount sought by the Minister, notwithstanding the existence of an application and also written submissions. An appropriate and reasonable amount is the sum of $6,000. 

I certify that the preceding seventy-one (71) paragraphs are a true copy of the reasons for judgment of Judge Barnes

Associate: 

Date:  24 July 2017