Singh v Minister for Immigration

[2017] FCCA 1331

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1331

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Partner (Temporary) (Class UK) visa – the Tribunal did not have regard to the material the subject of the certificate in its adverse determination of the applicant’s application – no practical injustice in the determination of the application in the present case – no jurisdictional error identified – amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5BC, 5F, 375A, 376, 476

Migration Regulations 1994, reg.1.15A, cl.820.211, 820.221, 820.223 of Schedule 2, Schedule 3, Schedule 4

Cases cited:

Minister for Immigration and Border Protection v Hossain [2017] FCAFC 82

Minister for Immigration and Border Protection v Singh [2016] FCAFC 183

MZAFZv Minister for Immigration and Border Protection [2016] FCA 1081

Applicant: HARDEEP SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 379 of 2017

Judgment of: Judge Street

Hearing date: 19 June 2017

Date of Last Submission: 19 June 2017

Delivered at: Sydney

Delivered on: 19 June 2017

REPRESENTATION

Solicitors for the Applicant: Mr N Dobbie
Dobbie & Devine Immigration Lawyers

Counsel for the Respondents: Mr T Reilly

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. Leave to the applicant to rely upon the amended application filed 16 May 2017.

2. The amended application is dismissed.

3. The applicant pay the first respondent’s costs fixed in the amount of $7,206.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 379 of 2017

HARDEEP SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court's jurisdiction under s.476 of the Migration Act1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 19 January 2017 affirming a decision of the delegate not to grant the applicant a Partner (Temporary) (Class UK) visa.

2. The applicant is a citizen of India and came to Australia in 2009 on a vocational education and training sector (subclass 572) student visa and made an unsuccessful application for a temporary graduate (subclass 485) skilled visa. The applicant applied for the current visa on 25 November 2013 on the basis of his relationship with his sponsor. 

3. The application was initially refused in April 2015 because the delegate found the applicant did not meet the criteria in Schedule 3 to the Migration Regulations 1994 (“the Regulations”). On 8 November 2015, a differently constituted Tribunal remitted the matter back to the delegate with the direction that the applicant met the following criteria for a (Subclass 820/801) Partner (Temporary) visa namely, cl.820.211(2)(d)(ii) of Schedule 2 to the Regulations.

The delegate’s decision

1. On 1 December 2015 the delegate identified the relevant criteria and in relation to the financial aspects found that the financial arrangements with the sponsor were not consistent with having a spousal relationship. The delegate referred to the nature of the household and was not satisfied that the applicant and sponsor had established a joint household or that they share the responsibilities of a joint household. Reference was made to the social aspects and the delegate was not satisfied that the applicant and the sponsor openly present themselves to family and friends as being in a committed spousal relationship or are regarded as such by others. The delegate found that there was little evidence that the applicant and the sponsor have a commitment to a shared life together and that they see the relationship as a long-term one as would be the case in a genuine married relationship. 

2. The delegate found that the information provided was insufficient to demonstrate that the applicant was the spousal sponsor, as defined under s.5F and s.5CB of the Act. The delegate found that the applicant failed to meet the criteria under cl.820.211 of Schedule 2 to the Regulations and that the applicant did not meet the requirements of cl.820.221 of Schedule 2 to the Regulations.

The Tribunal’s decision

1. The applicant applied for review on 17 December 2015. On 15 March 2016, a certificate was issued under s.375A of the Act which relevantly provided as follows:-

   I certify that, in accordance with s375A of the Migration Act 1958, the disclosure, otherwise than to the Administrative Appeals Tribunal of any matter or information contained in folio/s 124-141 of the file number CLF2013/291847 would be contrary to the public interest because:

   (a) folios 124-141 contain information contrary to public interest, as they are printouts of social media for both applicant and sponsor, which have not been provided by either party as part of this application, however are recorded in our records. As such, this information should not be disclosed to any other party other than Tribunal members.

   As s375A applies to the documents/information identified above, the AAT must to all that is necessary to ensure that the document or information is not disclosed to any person other than to a member of the AAT, pursuant tos375A(2)(b) of the Migration Act 1958.

2. The Court notes that although the certificate bears a reference to 2016, it is apparent from the reference number, as well as the reference to the AAT and the disclosure checklist form, that the certificate was erroneously dated 15 March 2015 when it was in fact, issued on 15 March 2016. Mr Dobbie, the solicitor for the applicant, accepted that the certificate was the subject of an erroneous date and was correctly dated 15 March 2016. 

3. Mr Dobbie did point out however, that there was another certificate that had been issued for the earlier Tribunal that sent the matter back to the delegate which had been issued on 25 May 2015 in relation to the hearing before a differently constituted Tribunal, the Migration Review Tribunal. That certificate does not in my opinion give rise to any basis upon which it could be said that there was a jurisdictional error by the Tribunal, the subject of the application for relief to this Court. That is because the certificate dated 25 May 2015 was provided for a different and separate review. Mr Dobbie noted that it was among papers provided to the Tribunal at the time of the issue of the certificate on 15 March 2015. I note that the content of the subject matter of the certificate is identical and affidavit evidence had been adduced establishing that the folios referred to in both certificates are the same, being social media pages from the Facebook page of the sponsor and the Facebook page of the applicant. 

4. In a letter dated 2 November 2016 the applicant was invited to attend a hearing on 4 January 2017. The letter referred to the fact that having considered the material before the Tribunal, the Tribunal was unable to make a favourable decision on that information alone. The letter also stated:

   “Please provide evidence that you have no outstanding debt to the Commonwealth or that you have made arrangements to repay the debt.”

5. The applicant attended the hearing on 4 January 2017 and gave evidence and presented arguments. The applicant’s migration agent was also present.   

The applicant’s outstanding debt to the Commonwealth

1. In the course of the hearing the Tribunal member raised with the applicant the outstanding debt to the Commonwealth and that the applicant failed to meet essential criteria for the issue of a visa and explored with the applicant why the applicant had not made arrangements to pay, in circumstances where it appeared that the applicant had funds to be able to pay. Towards the end of the hearing, the applicant indicated that he wished to make an arrangement to pay and the Tribunal member provided a two week opportunity for that to occur.

2. On 17 January 2017, the day before the expiry of the two weeks, the applicant's migration agent wrote to the Tribunal member identifying amongst other things, that the applicant had started the process of arrangements to repay the Commonwealth debt. The applicant asked Tribunal member to see the attached emails between the applicant and the Department. Attached was an email dated 10 January 2017 providing an automated response to the submission of a statement of financial details for assessment that may take up to 12 weeks for a decision to be reached.

3. Also attached was an email from the same source dated 16 January 2017 which referred to the potential to be able to make payments by instalments if you are experiencing financial difficulties. The letter identified that the time taken to assess the application is usually between eight to 10 weeks from receipt of the application, however this time may vary depending upon the complexity of the circumstances.

4. Evidence was adduced by the applicant following the decision of the Tribunal that payment of the outstanding debt was made in full on or about 29 May 2017. That payment was not pursuant to any payment arrangement the subject of the communications of the emails. That said the applicant identified in the transcript that his financial circumstances were such that he could not pay straightaway and that he wanted time to be able to pay and to put in place an arrangement.

The information the subject of the certificate

1. The Tribunal in its reasons identified the applicant's background and identified that the applicant was informed in the course of the hearing of the existence of the s.375A certificate. The transcript supports that statement by the Tribunal, albeit no reference was made to s.375A of the Act. In that regard the transcript reveals that the Tribunal disclosed that a certificate had been issued in relation to social media records. Whilst the member referred to "your social media records", the applicant responded “we are not using the Facebook, social media.”

2. The Tribunal did not expressly refer to the fact that the social media records were those of both the applicant and the sponsor however, it is apparent from the applicant’s response that he understood that to be the position. The Tribunal member then indicated that the Tribunal was not intending to rely upon the material the subject of the certificate.

The relevant law

1. The Tribunal referred to the relevant law and the criteria for the grant of the visa being set out in Part 820 of Schedule 2 to the Regulations. The Tribunal made express reference to the requirements of cl.820.211(2)(a) and cl.820.221 of Schedule 2 to the Regulations to the effect that the applicant must be the spouse or de facto partner of the applicant at the time the application was made and at the time of the decision. The Tribunal correctly identified the relevant law in relation to s.5F of the Act and reg.1.15A(3) of the Regulations.

2. The Tribunal was satisfied that the parties were married to each other under a marriage that is valid for the purposes of the Act as required by s.5F(2)(a) of the Act.

Consideration of Item 4004 of Schedule 4 to the Regulations

1. The Tribunal then turned to the heading Item 4004 of Schedule 4 to the Regulations. Clause 820.223(1) of Schedule 2 to the Regulations relevantly provides:

   (1) The applicant

   (a), subject to subclause (2), satisfies the public interest criteria 4001, 4002, 4003, 4004, 4007 and 4009; and

   (b) if the applicant had turned 18 at the time of application, satisfies public interest criterion 4019.

2. The reference by the Tribunal to item 4004 was clearly a reference to the public interest criteria under cl.820.223 of Schedule 2 to the Regulations. The Tribunal referred to the issue of there being a debt outstanding to the Commonwealth which was raised during the hearing. The Tribunal provided the applicant with two weeks to make arrangements for repayment. The Tribunal referred to the communication received on 17 January 2017. The Tribunal identified that what had been provided were two emails and that the second referred to a statement of financial affairs and invited the applicant to complete the form to assess his financial position. The Tribunal observed that the applicant had not provided any evidence of having completed the form or of having had any further contact with the Department in relation to the repayment of the debt.

3. The Tribunal found that there was no evidence that the applicant had taken steps for repayment other than to make the preliminary inquiry. The Tribunal expressed the view that that was not sufficient and that it was not enough for the applicant to have inquired about his debt. The Tribunal referred to item 4004, being concerned with arrangements to repay, and the Tribunal found that it was not satisfied that the applicant has made such arrangements. The finding was clearly open to the Tribunal on the material before the Tribunal.

4. The Tribunal then proceeded to find that having regard to the applicant’s own evidence, that the applicant has an outstanding debt to the Commonwealth. The Tribunal then found that it was not satisfied the applicant has made acceptable arrangements to repay the debt. Item 4004 is set out as follows:-

   [4004] The applicant does not have outstanding debts to the Commonwealth unless the Minister is satisfied that appropriate arrangements have been made for payment.

5. The finding by the Tribunal that the applicant had not made acceptable arrangements to repay the debt, is in substance a finding which reflected whether it was satisfied that appropriate arrangements have been made for payment. The Tribunal’s reasons are not to be read with a keen eye for error. The Tribunal expressly found that it was not satisfied the applicant meets item 4004 of Schedule 4 to the Regulations.

6. The Court accepts that, on the face of that finding when read with paragraph 4 and paragraph 30 in the Tribunal’s reasons, the Tribunal made a finding that the applicant failed to meet the criteria under cl.820.223 of Schedule 2 to the Regulations. This was an essential criteria for the grant of the visa.

Consideration of the requirements for a spousal relationship

1. The Tribunal then proceeded to consider whether the requirements for the spousal relationship were met and identified rational and cogent reasons for adverse credit findings in relation to the applicant’s evidence. The Tribunal formed the view that much of the applicant’s evidence was problematic.

2. The Tribunal was not satisfied that the applicant and spouse had discussed their financial affairs with each other. The Tribunal formed the view that the applicant had not been truthful in his dealings with Immigration and that he created documentary evidence with the sole intention of assisting him in his visa application. The Tribunal was not satisfied that the payments of expenses in evidence before the Court represented the sharing of financial responsibilities and pooling of resources.

3. The Tribunal made reference to the applicant and spouse’s relationship with other family members. The Tribunal also made reference to the efforts taken to involve the family members in their marriage. The Tribunal accepted that the parties live together but was not satisfied they do so as spouses. The Tribunal made reference to a miscarriage that had occurred prior to the hearing before the Tribunal of the spouse and subsequent evidence adduced after the hearing that the spouse was pregnant. The Tribunal did not accept the applicant’s assertions that he was the father.

4. The Tribunal provided rational and cogent reasons in relation to its adverse findings in relation to the applicant and found that the couple take little interest in each other’s affairs. The Tribunal was not satisfied that they have established meaningful communication. The Tribunal was not satisfied they provided each other with comfort and emotional support. The Tribunal was not satisfied that they have established a joint household and that their living arrangements are different from those of flatmates. The Tribunal was not satisfied they have a mutual commitment to the relationship.

5. The Tribunal was not satisfied the applicant and the sponsor have a mutual commitment to a shared life to the exclusion of others. The Tribunal was not satisfied the relationship is genuine and continuing. The Tribunal was not satisfied that at the time of the visa application was made and the time of the decision the parties were in a spousal relationship. The Tribunal found that the applicant did not meet cl.820.211(2)(a) of Schedule 2 to the Regulations and found that the applicant did not meet the requirements of cl.820.211 and cl.820.221 of Schedule 2 to the Regulations. The Tribunal then found that for the reasons above, the applicant does not satisfy the criteria for the grant of a visa.

Before this Court

1. The grounds in the amended of application are as follows:-

   1. The decision of the Second Respondent is unreasonable, irrational or arbitrary

   Particulars:

   (A) The decision of the Second Respondent is unreasonable, irrational or arbitrary:

   (i) In finding that the Applicant did not satisfy subclause 820.211 (2)(a) and clause 820.221 of Part 820 of Schedule 2 the Migration Regulations 1994 ('the regulations'), the Tribunal:

   (a) found that the wills made by the Applicant and his spouse, in December 2013, 'were prepared solely for the purpose of presenting evidence to Immigration and do not represent the couple's desire to share their resources', because of the Tribunal's subjective view that 'if they genuinely wanted to nominate each other as beneficiaries, the wills would have been prepared when they claim to have commenced the committed relationship and not at the time when the applicant was making the visa application'. (at [21])

   (b) despite finding that 'the applicant pays the rent and the sponsor pays for groceries and they also pay for some other expenses', found that the financial arrangements that were made did not 'represent the sharing of financial responsibilities and the pooling of resources'. (at [24])

   (c) required that the Applicant and his spouse had to establish meaningful relationships with their respective family members in order to be satisfied that the Applicant and his spouse viewed their relationship as a long term relationship. (at [26])

   (d) required that the Applicant and his spouse had to show that they made more effort to involve their respective family members in their marriage in order to be satisfied that the Applicant and his spouse viewed their relationship as a long term relationship. (at [27])

   (e) found that the length of the claimed committed relationship from late 2011 could equally be explained by the lengthy processing of the Applicant's visa application. (at [29])

   (f) found, in relation to the miscarriage suffered by the Applicant's spouse, and her pregnancy at the time of hearing, that given its concerns 'outlined elsewhere' in its decision, it was 'not convinced that the applicant is the father of the child in relation to either pregnancy'. (at [30])

   (g) Required the Applicant to apply for a visa to travel to India with the sponsor. despite the fact that the Applicant was not eligible to be granted a visa to allow him to travel outside of Australia and re-enter Australia while his partner visa application was being determined, and despite the requirement that he be in Australia at the time a decision is made on the partner visa application.

   (h) Imposed its own view of how the Applicant should have conducted himself in relation to his wife's pregnancy and her subsequent miscarriage.

   (ii) Each of the above is unreasonable, irrational or arbitrary, such that the decision of the Tribunal is infected with jurisdictional error.

   3. The Tribunal constructively failed to exercise its jurisdiction and or failed to accord the Applicant procedural fairness

   Particulars:

   (A) The Tribunal constructively failed to exercise its jurisdiction and or failed to accord the Applicant procedural fairness.

   (i) In finding that the Applicant did not satisfy subclause 820.211 (2)(a) and clause 820.221 of the regulations, the Tribunal constructively failed to exercise its jurisdiction and or failed to accord the Applicant procedural fairness because:

   (a) the Tribunal acted on an invalid certificate dated 11 February 2015 purportedly issued pursuant to s375A of the Act, thereby following a process contrary to law; and or

   (b) the Tribunal only disclosed the existence of a certificate to the Applicant at the hearing, and failed to give the Applicant a reasonable opportunity to make submissions on the validity of the certificate if he so chose; and or failed to give the Applicant at least a reasonable opportunity to seek disclosure of any matter contained in the document, or the information.

   4. The Tribunal failed to conduct the review required by the Act

   Particulars:

   (A) The Tribunal failed to conduct the review required by the Act because it failed to have proper regard to the evidence before it; for example:

   (i) The Tribunal stated at [271 of its decision:

   'The applicant then said that his parents had the money to travel to Australia but they did not want to come to Australia because they thought they would arrange a big ceremony in India.'

   However, that is not what the Applicant said. The Applicant said:

   'But they don't want to come in Australia, even they don't want to come anywhere. They never been-even they don't have a passport here.'

   'My parents don't want to come here, that's why I didn't apply for them-I didn't force them'.

   (ii) The Tribunal further stated at [271 of its decision:

   'The applicant told the tribunal he made no effort to obtain the passport for the sponsor and no effort to travel to India to introduce her to his family. He said the sponsor is unwilling to travel overseas. The applicant suggested he has no visa to travel but he could have applied for a travel visa at anytime.'

   However, the Applicant could not apply for a visa to travel, as he was not the holder of a visa that was of a visa class that allowed him to travel or to make him eligible to be granted a visa to travel outside of Australia.

   (iii) By failing to have regard to the evidence before the Tribunal, it failed to conduct the review required by the Act.

1. Mr Dobbie, the solicitor for the applicant confirmed that ground 2 was no longer pressed and was abandoned.

Consideration

Ground 1

1. In relation to ground 1, Mr Dobbie took the Court to each of the paragraphs identified in support of an argument of alleged unreasonableness, irrationality or being arbitrary. I accept the first respondent’s submissions that there is no absence of logical connection between the evidence and reasons of the Tribunal.

Paragraph (a)

1. The observation in relation to paragraph (a) by the Tribunal as to whether the parties were in a committed relationship and the making of wills, was a finding of fact that was open to the Tribunal. Such finding does not reflect a personal view and was not arbitrary.

Paragraph (b)

1. The finding of fact in respect of the financial resources made by the Tribunal and the acceptance of the payment of some expenses by the Tribunal does not reflect any irrationality, arbitrary or unreasonable conclusion.

Paragraph (c)

1. In relation to paragraph (c), the finding of the Tribunal in relation to engagement by the applicant in response with family members was a finding of fact that was open and does not reflect the personal view of the Tribunal and was not arbitrary or unreasonable. 

Paragraph (d)

1. In relation to paragraph (d), the finding of fact in relation to the involvement of the applicant’s family in the relationship was open to the Tribunal and did not reflect a personal view and was not arbitrary or unreasonable.

Paragraph (e)

1. In relation to paragraph (e), the observation of the Tribunal in relation to the relationship and the applicant’s process for the visa application was open on the material before the Tribunal, and does not reflect any irrationality, unreasonableness, and nor was the reasoning arbitrary.

Paragraph (f)

1. In relation to paragraph (f), Mr Dobbie submitted that the Tribunal should have raised with the sponsor whether the applicant was the father of either miscarriage. I do not accept the Tribunal was under any such obligation to do so.

2. Further, the second pregnancy occurred at a point of time after the Tribunal hearing and it was open to the Tribunal to make adverse credit findings in relation to the applicant. 

Paragraph (g)

1. In relation to paragraph (g), Mr Dobbie submitted that the applicant did not have a visa that would permit him to travel outside Australia and re-enter Australia with his partner and that accordingly, part of the reasoning of the Tribunal in criticising the applicant about travelling overseas in relation to his family members was unreasonable, illogical or rational.

2. In determining whether the applicant met the criteria, it was open to the Tribunal to take into account the engagement and planning of the applicant in respect of the marriage to his spouse and the introduction of her to the family members. I do not accept the existence if it be the case of the absence of visa, permits travel by the applicant overseas undermining or establishing error in the Tribunal’s reasons adverse to the applicant in relation to his failure to involve family parties in what is alleged to be a relationship of a long-term nature.

Paragraph (h)

1. In relation to paragraph (h), the Tribunal made observations in relation to the applicant’s limited knowledge of the earlier miscarriage by the sponsor and the observations made in relation to support and engagement with the applicant were open to the Tribunal. I do not accept that the Tribunal imposed its personal views and the finding by the Tribunal in relation to concerns in respect of the commitment of the applicant to the relationship were open to the Tribunal and cannot be said to be unreasonable, irrational or arbitrary.

2. No jurisdictional error is made out by ground 1. 

Ground 3

1. In relation to ground 3, Mr Dobbie submitted that the Tribunal had not disclosed to the applicant that the certificate issued was under s.375A and as the certificate could be either under s.375A or s.376, the disclosure by the Tribunal was inadequate to meet the requirements of procedural fairness or a fair process in the conduct of the review.

2. Mr Dobbie also submitted that the Tribunal in fact had two certificates, concluding that the Tribunal had only made reference to one certificate. Mr Dobbie submitted that the certificate was invalid and that the applicant was not informed of the content of the subject matter of the certificate. Mr Dobbie submitted that the disclosure did not squarely identify the existence of Facebook material from the spouse’s web page postings.

3. Mr Dobbie took the Court to the content of the spouse’s Facebook postings, which relevantly included information posted by the applicant  in 2013 that she was in a relationship with another man called Graham, another Facebook page entry by the sponsor on 18 May 2013, purportedly saying “It’s a fake relationship.” Mr Dobbie submitted that the information was adverse information and that the Tribunal as a matter of procedural fairness, should have disclosed it to the applicant. Mr Dobbie submitted that the applicant was denied an opportunity of addressing the Tribunal’s concerns in relation to that information. Mr Dobbie submitted that the reference in the course of the hearing to the Tribunal not intending to rely upon the Facebook material was not a statement that the Tribunal would not have regard, but rather was merely a statement of intent.

4. Mr Dobbie accepted that there was no reference to the Facebook material in the Tribunal’s reasons in the determination of the application of the criteria beyond the disclosure referred to by the Tribunal of the existence of the s.375A certificate.

5. Section 375A of the Act provides as follows:-

   (1)  This section applies to a document or information if the Minister:

   (a)  has certified, in writing, that the disclosure, otherwise than to the Tribunal, of any matter contained in the document, or of the information, would be contrary to the public interest for any reason specified in the certificate (other than a reason set out in paragraph 375(a) or (b)); and

   (b)  has included in the certificate a statement that the document or information must only be disclosed to the Tribunal.

   (2)  If, pursuant to a requirement of or under this Act, the Secretary gives to the Tribunal a document or information to which this section applies:

   (a)  the Secretary must notify the Tribunal in writing that this section applies to the document or information; and

   (b)  the Tribunal must do all things necessary to ensure that the document or information is not disclosed to any person other than a member of the Tribunal as constituted for the purposes of the particular review.

6. I accept the submissions of the first respondent that the decision of Beach J in MZAFZv Minister for Immigration and Border Protection [2016] FCA 1081 (“MZAFZ”) and Minister for Immigration and Border Protection v Singh [2016] FCAFC 183 (“Singh”) are distinguishable of the circumstances of the present case. 

7. Section 376 of the Act expressly identifies an element in relation to the requirement of the certificate when writing that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter contained in the document, or the information, should not be disclosed. No such words appear in section 375A.

8. On the face of the material before the Court, the certificate complied with each of the requirements of s.375A of the Act. The fact that the Facebook page material may not make out an ultimate claim for public interest immunity does not determine whether or not the certificate was invalid. The validity of the certificate turns on its face. On the face of the certificate, it complies with the requirements of s.375A of the Act and was a valid certificate.

9. I also accept the first respondent’s submissions that in the present case the decision in MZAFZ and Singh are distinguishable because the existence of the certificate was disclosed at the hearing. I find on the material before me, the subject matter of the certificate being Facebook entries of the applicant and sponsor was sufficiently disclosed to the applicant as a result of the exchange that appears in the transcript. In those circumstances no jurisdictional error made out by ground 3.

10. Further, I accept the first respondent's submissions that this is a case where the Tribunal identified that it did not propose to have regard to the material the subject of the Facebook pages. No reference in the course of the hearing was put to the applicant referring to the pages to which Mr Dobbie took the Court in relation to the applicant being in a relationship with someone else and the relationship being a fake relationship.

11. The reasons provided by the Tribunal reflect a focus on the issues and evidence that do not incorporate or refer to the Facebook pages. Whilst the subject matter of the genuine relationship overlaps with the Facebook page, I find that the Tribunal did not have regard to the material the subject of the certificate in its adverse determination of the applicant's application. For this further reason, I am satisfied that there is no practical injustice in the present case insofar as it was found the certificate was invalid and/or that there should have been further disclosure concerning the subject matter of the certificate to the applicant in the course of the hearing. There was no practical injustice to the applicant by any inadequate disclosure of the certificate, or the information the subject matter of the certificates in the determination of the application in the present case. Accordingly, no jurisdictional error was made out by ground 3.

Ground 4

1. In relation to ground 4, Mr Dobbie submitted that there was a failure to properly conduct the review because when reference was made to the transcript, it was submitted that there was not a literal statement by the applicant his family did not attend because of money. The Tribunal's reasons are not to be read with a keen eye for error. The Tribunal's reasons were clearly summarising the effect of what had been said by the applicant.

2. In the course of the applicant's evidence, reference was made to there being:

   “some business loss or something like that, and they don't - they are also stressed, and they just told me, we are happy you are getting married and that’s all.

3. The Tribunal then proceeded to identify that the applicant then said that his parents had the money to travel to Australia but that they just did not want to come. I find no error in the reasons of the Tribunal in relation to the facts. The reference to "stressed" and "business loss" are consistent with an issue of money and the finding was accordingly open to the Tribunal on the material before the Tribunal. The reference to the applicant's alleged visa not permitting him to travel overseas does not give rise to there being any failure to conduct the review required by the Act. I do not accept that there is any failure to have proper regard to the evidence before the Tribunal. No jurisdictional error is made out by ground 4.

4. Mr Dobbie and Mr Reilly of counsel addressed the issue of 4004. Mr Reilly of counsel submitted that by reason of the independent finding in respect of the criteria under cl.820.223(1) of Schedule 2 to the Regulations. It was submitted that even if the Court had found any error in respect of grounds 1, 3 and 4, this was a case consistent with the decision of Flick and Farrell JJ in Minister for Immigration and Border Protection v Hossain [2017] FCAFC 82 (“Hossain”) where there was no jurisdictional error because of the independent finding. This Court is bound by the decision of the majority to find that any alleged error of the kind identified in grounds 1, 3 and 4 is not a jurisdictional error, because there is an independent finding by the Tribunal of an essential criteria independent to that of the criteria under cl.820.223(1) of Schedule 2 to the Regulations. As a result of the decision of the majority in that case, I am bound to so find.

5. I should, however, identify that if the Court had found an error as alleged in grounds 1, 3 or 4 for the reasons given by the dissenting judge, Mortimer J if a discretion were available in the present case, the Court would not have refused as a matter of discretion the grant of relief if the law was correctly stated as identified by Mortimer J. That is because in the circumstances of the present case, the applicant has clearly identified during the course of their hearing, a desire to have an opportunity to make payment and informed the Tribunal that he did not financially have the capacity to do so at the time of the hearing. The material provided by the applicant in relation to the steps he wished to take, identified a necessary 8 to 10 weeks from receipt of the application before an arrangement could be put in place.

6. It is in those circumstances that this Court would have followed if able to do so, the reasoning of Mortimer J in Hossain if the error had otherwise been made out on the grounds 1, 3 or 4. However, as the law presently stands, I am bound by the decision of the majority and Mr Reilly, counsel for the respondent, submitted that no such issue has to be determined in the present case. I have explained that the Court would otherwise have found that any error as alleged in grounds 1, 3 or 4 was, but for being bound by the decision of the majority, a jurisdictional error and I would not have refused relief on discretionary grounds in this case.

Conclusion

1. For the above reasons, the Court finds that there is no jurisdictional error in the amended application.

2. Accordingly, the amended application is dismissed.

I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  7 July 2017