SINGH v Minister for Immigration
[2020] FCCA 1602
•19 June 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 1602 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – partner (residence) (class BS) (subclass 801) visa – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5F, 57, 359A, 359AA, 368. Migration Regulations 1994 (Cth), reg.1.15A. |
| Cases cited: AAJ17 v Minister for Immigration and Border Protection [2018] FCA 205 BAY17 v Minister for Immigration and Border Protection [2019] FCAFC 44 Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 He v Minister for Immigration and Border Protection [2017] FCAFC 206 Minister for Immigration and Citizenship v SZLFX [2009] HCA 31 Nguyen v Minister for Home Affairs [2019] FCA 1095 Nguyen v Minister for Home Affairs [2018] FCA 1374 Nguyen v Minister for Home Affairs [2018] FCCA 3504 Perera v Minister for Immigration and Multicultural Affairs (1999) FCA 507 SZNXQ v Minister for Immigration and Citizenship [2010] FCA 276 SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142 Truong v Minister for Immigration and Border Protection [2018] FCCA 497 |
| Applicant: | GAGANDEEP SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 897 of 2016 |
| Judgment of: | Judge Mercuri |
| Hearing date: | 5 May 2020 |
| Date of Last Submission: | 5 May 2020 |
| Delivered at: | Melbourne |
| Delivered on: | 19 June 2020 |
REPRESENTATION
| Counsel for the applicant: | Mr Oldham |
| Solicitors for the applicant: | Forbes Reichmann & Galasso |
| Counsel for the respondents: | Mr Yuile |
| Solicitors for the respondents: | Mills Oakley |
ORDERS
The applicant’s application be dismissed.
The applicant pay the first respondent’s costs in a sum to be fixed unless agreed.
The first respondent file written submissions on the question of costs within 7 days.
The applicant file written submissions in reply on the question of costs within 14 days.
AND THE COURT NOTES THAT:
(A)Each party should indicate, in their written submissions pursuant to orders 3 and 4 above, whether they are agreeable to the making of orders in relation to costs in chambers.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 897 of 2016
| GAGANDEEP SINGH |
Applicant
and
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for judicial review of a decision of the second respondent, the Administrative Appeals Tribunal (“the tribunal”) which affirmed a decision of a delegate of the first respondent, the Minister for Immigration and Border Protection (“the Minister”) to refuse the applicant a partner (residence) (class BS) (subclass 801) visa.
The applicant presses two grounds of review, namely:
Amended Ground 1
The Second Respondent’s decision is infected with jurisdictional error because the Second Respondent failed to give proper, genuine and realistic consideration to the aspects of the Applicant’s relationship with the Sponsor that are set out in reg. 1.15A(3) of the Migration Regulations 1994 (Cth) (the “Regulations”).
Amended Ground 2
The Second Respondent’s decision was made following an unfair procedure and the Applicant was denied the opportunity to properly answer the all of the case (sic) that the Second Respondent put to him.[1]
[1] Paragraph 4 of the applicant’s written submissions filed 3 February 2020; see also paragraph 1 of the Minister’s outline of submissions filed 28 April 2020.
Background
The applicant applied for a partner (temporary) (class UK) (subclass 820) visa (“subclass 820 visa”) and a partner (residence) (class BS) (subclass 801) visa (“subclass 801 visa”) on 19 March 2012 on the basis that the applicant claimed to be in a spousal relationship with an Australian citizen (“the sponsor”).
The applicant was granted a subclass 820 visa on 14 May 2012. This application relates to the refusal to grant the applicant the subclass 801 visa.
The applicant claims that he and the sponsor met in December 2009, were engaged in July 2010 and married in January 2012. The couple lived together after they married and lived with the applicant’s brother.
It is not in dispute that:
a)the sponsor gave birth to a child conceived with her ex-boyfriend;
b)the applicant was aware of this but proceeded with the marriage nonetheless; and
c)the applicant claimed that he assisted the sponsor in the care of the child.
Relevantly, as part of the Department of Immigration and Border Protection’s assessment of the applicant’s application for a subclass 801 visa, it conducted a site visit in India and interviewed the applicant’s parents about the applicant’s relationship with the sponsor.
By letter dated 13 October 2014, the Minister wrote to the applicant and invited him to comment on information which was deemed to be adverse to his application for a subclass 801 visa.[2] In particular, that letter states:
[2] Court book page 156.
In accordance with section 57 of the Migration Act 1958 (the Act), I am writing to advise you that information has been received which a delegate of the Minister considers would be the reason, or a part of the reason, for refusing to grant a visa.
The department conducted a site visit to your parents home in India.
The following information was provided:
Your father stated that you are in a relationship with and (sic) Australian girl for the sole purpose of obtaining permanent residence. Your father did not know the sponsor’s name or anything about her family.
When your father was asked if he provided an affidavit regarding your relationship with the sponsor. He said that he signed an affidavit but did not know what it contained.
Your mother stated that she was absolutely sure you were unmarried and that a suitable wife will be found when you return to India. This comment contradicts your statement that you had your parents’ permission before marriage.[3]
[3] Court book pages 156 to 157.
The Minister’s decision record makes reference to that site visit and recites the substance of the information extracted above.[4]
[4] Court book page 211.
The Minister refused the applicant’s application on or about 21 November 2014.[5]
[5] Court book page 213.
On 1 December 2014, the applicant filed an application with the Migration Review Tribunal, as it then was, seeking a review of the Minister’s decision, attaching, among other things, the Minister’s decision record.
By letter dated 16 December 2015, the tribunal wrote to the applicant inviting him to appear before the tribunal to give evidence and present arguments relating to the issues in his case. That letter noted:
We have considered the material before us but we are unable to make a favourable decision on this information alone.[6]
[6] Court book page 260.
The applicant responded to this request and indicated that he wished to call evidence from his brother with whom he and his wife lived.[7] The applicant was represented throughout this process by WAVES Consultancy, Migration and Education Consultants.
[7] Court book pages 262 to 264.
The applicant’s representative filed written submissions on the applicant’s behalf on 28 January 2016 prior to the scheduled hearing.[8] In those submissions, the following points were made:
a)the applicant and the sponsor married on 7 January 2012;
b)they are living together as husband and wife and are in a committed and long term relationship; and
c)the applicant and the sponsor provide each other with emotional support, share duties and depend on each other.[9]
[8] Court book pages 266 to 270.
[9] Court book pages 266 to 270.
Relevantly, the applicant’s representative referred to the site visit undertaken by the Department and the information obtained from the applicant’s parents during that visit.[10]
[10] Court book pages 268 to 269.
The hearing record indicates that the hearing was attended by the applicant, his representative, his brother and the sponsor.[11]
[11] Court book pages 271 to 273.
It is evident from the tribunal’s decision record that the tribunal also raised the site visit with the applicant.[12]
[12] Court book page 414 at paragraph [39].
Correspondence received after the hearing from the applicant’s representative indicates that further information was requested from the applicant and additional time was provided for this information to be obtained.[13]
[13] Court book pages 291 to 293.
The applicant’s representative provided further information to the tribunal on 4 March 2016.[14]
[14] Court book pages 295 to 405.
Tribunal’s decision
The tribunal handed down its decision in this matter on 4 April 2016.[15]
[15] Court book pages 409 to 428.
In its decision, the tribunal set out the background to the applicant’s application and criteria for granting the subclass 801 visa and noted that the Minister was not satisfied that the evidence pointed to the parties being in a genuine and continuing spousal relationship for the purposes of the subclass 801 visa.
The tribunal set out the definition of ‘spouse’ in section 5F of the Migration Act 1958 (Cth) (“the Act”) and the factors to which regard is to be had under regulation 1.15A of the Migration Regulations 1994.[16]
[16] Court book page 410 at paragraph [8].
The tribunal accepted that the parties were validly married and went on to consider whether the other requirements of a spousal relationship were met. The tribunal invited the applicant to explain:
a)how he met the sponsor;
b)why they waited some two years after getting engaged to be married;
c)the parties’ financial position and arrangements;
d)the circumstances around the birth of the sponsor’s child and whether the applicant was recognised or treated as the child’s parent (in circumstances where he was not the child’s biological father);
e)what role he played in the child’s life and upbringing, including in relation to health matters, future education and the like; and
f)whether the applicant’s parents were aware of the child and whether they perceived themselves as the child’s grandparents.[17]
[17] Court book page 411 at paragraphs [10] to page 413 at paragraph [29].
The tribunal also set out the evidence provided by the sponsor about:
a)the parties’ relationship;
b)how they met;
c)the applicant’s involvement in her religious practice;
d)why her parents had not attended the wedding;
e)the applicant’s involvement in the child’s life.[18]
[18] Court book page 413 at paragraph [30] to page 414 at paragraph [37].
The tribunal then referred to the site visit undertaken by the Department and referred to in the Minister’s decision. Relevantly, the tribunal recorded:
While the Departmental decision generally sets out the findings of the visit, the Tribunal thought it important to put to the applicant pursuant to section 359AA the entire contents of the report – its relevance and how the Tribunal may rely on it. The Tribunal explained that the site visit may show that the parents’ statements with the Departmental officers might show that the parties were not in a genuine and continuing spousal relationship as it was not accepted by them and that it had been entered into solely for the purpose of attaining a migration outcome by the visa applicant.[19]
[19] Court book page 414 at paragraph [39].
The tribunal then set out the site report in its entirety. It also outlined the applicant’s concerns about the site report, including that:
a)his parents speak Punjabi and the site inspectors spoke Hindi leading to possible misunderstandings;[20]
b)there were cultural reasons why the applicant had not told the village head about the marriage;[21] and
c)there was a misunderstanding regarding the offer of money at the end of the site visit.[22]
[20] Court book page 417 at paragraph [41].
[21] Court book page 418 at paragraph [45].
[22] Court book page 418 at paragraph [47].
The tribunal then addressed each of these matters, and stated relevantly:
The Tribunal is not entirely convinced that the visa applicant’s parents did not understand the gist of what the officers were saying to them but is prepared to accept there may have been some misunderstandings and the Tribunal therefore places less weight on the findings of the site visit and considers that its focus ought to be on the requirements of Regulation 1.15A (emphasis added).[23]
[23] Court book page 418 at paragraph [46].
In relation to the alleged ‘offer of money’ at the site visit, the tribunal stated that it was
prepared to accept the applicant’s claims that it was simply a good will gesture, particularly as the amount was so small and not a significant incentive. The Tribunal places no adverse weight on this matter.[24]
[24] Court book page 418 at paragraph [47].
The tribunal then considered the substantive issues in the case; namely, whether the parties were in a genuine and continuing spousal relationship, having regard to the relevant factors including regulation 1.15A, namely:
a)financial aspects of the relationship;
b)the nature of the household;
c)social aspects of the relationship; and
d)the nature of the persons’ commitment to each other.
The tribunal ultimately concluded that it was not satisfied that the parties were in a spousal relationship at the time of its decision, having regard to all of these factors. Therefore, it found that the applicant did not meet the requirements of clause 801.221(2)(c) and therefore did not satisfy the criteria for the grant of the subclass 801 visa.
Ground one
The issue raised by the applicant in this ground is whether the tribunal gave proper, genuine and realistic consideration to the aspects of the applicant’s relationship with the sponsor, having regard to the relevant factors in regulation 1.15A.
It is common ground between the parties that the relevant principles which apply to this ground are set out in the Full Court of the Federal Court decision in He v Minister for Immigration and Border Protection [2017] FCAFC 206 (“He”) in which the Court considered the definition of ‘spouse’ set out at section 5F of the Act and the requirements at regulation 1.15A. Those principles are summarised as follows:
a)the matters set out in reg. 1.15A(3) are relevant considerations which the decision-maker is bound to consider;[25]
b)this requires the decision-maker to bring an active intellectual process to each matter, giving proper, genuine and realistic consideration to each;[26]
c)the requirement that the tribunal ‘consider’ the circumstances in reg. 1.15A(3) means that the tribunal is required to make findings upon each of the prescribed matters numbered with roman numerals; the legislative intention is that the enumerated matters must be addressed, and not merely thought about;[27]
d)however, the requirement to consider these matters does not extend to requiring the tribunal to address each of the enumerated matters in a formulaic manner or to make findings on every piece of evidence bearing upon an enumerated matter;[28] and
e)the failure by the tribunal set out in its reasons a finding concerning any of the matters in reg 1.15A may, although will not necessarily, lead to an inference that the tribunal member made no such finding as part of his or her mental process in arriving at the decision.[29]
[25] He v Minister for Immigration and Border Protection [2017] FCAFC 206 at [52].
[26] He v Minister for Immigration and Border Protection [2017] FCAFC 206 at [58].
[27] He v Minister for Immigration and Border Protection [2017] FCAFC 206 at [76].
[28] He v Minister for Immigration and Border Protection [2017] FCAFC 206 at [77].
[29] He v Minister for Immigration and Border Protection [2017] FCAFC 206 at [79].
Both parties also referred to the recent decision of Derrington J in Nguyen v Minister for Home Affairs [2019] FCA 1095 (“Nguyen”) in which the court adopted the reasoning in He. In particular, Derrington J said:
(l)…
(m)In considering whether a Tribunal had taken a specific matter into account or when drawing implications from the reasons, it is apt to keep in mind the impressionistic and evaluative nature of the Tribunal’s task and that the reasons are not to be construed minutely and finely with an eye attuned to the perception of error.
(n)When considering the circumstances of the particular case, the Court is entitled to draw inferences from the conclusions of the Tribunal as to the findings which were made in relation to each of the specific matters in reg 1.15A(3). There did not have to be any express statement as to the finding so long as it was implicit from the conclusions actually made.[30]
[30] Nguyen v Minister for Home Affairs [2019] FCA 1095 at [17].
In terms of what is required by the tribunal when ‘considering’ the various factors in regulation 1.15A, the applicant pointed to the comments of White J in Nguyen v Minister for Home Affairs [2018] FCA 1374 where, not dissimilar with the present facts, the applicant complained that the tribunal had not properly engaged with the matters requiring consideration under regulation 1.15A. White J made the following comments:
[59]Counsel for the Minister submitted that, despite these matters, it was evident that the Tribunal member had considered each of the ‘matters’ required by subreg (3). …The member had thereby considered the matter of pooling of resources. That being so, the Tribunal’s failure to refer to the evidence of the joint bank account, should be regarded as no more than a failure to consider an item of evidence, and not a failure to consider a required matter…
[60]At one level, these submissions have some force, as it is not necessary for the Tribunal to refer to every item of evidence bearing on a matter. The very fact that the Tribunal member chose to use the four topics mentioned in subreg (3) as the headings for sections of her reasons, tends to suggest the Tribunal has had regard, at least to some extent, to those matters.
[61]The difficulty, however, lies with the level of abstraction with which the Tribunal has addressed each topic. When the Tribunal refers at a high level of generality to one of the requisite matters, it may be said that the Tribunal has ‘considered’ that matter. However, reg 1.15A requires more than a generalised consideration, as the concluding words of reg 1.15A(2) indicate. They oblige the Minister (and the Tribunal when standing in his shoes) to consider ‘all of the circumstances’ of the relationship ‘including’ those set out in subreg (3). The requirement that the Tribunal consider all of the circumstances is inconsistent with a requirement that the subreg (3) matters be considered merely as abstract topics. Further as the Full Court noted in He, the obligation to ‘consider’ requires the decision-maker to bring an active intellectual process to each matter…[31]
[31] Nguyen v Minister for Home Affairs [2018] FCA 1374 at [59]–[61], with case law references omitted.
The applicant argued that to the extent that the tribunal made reference to the matters in regulation 1.15A(3), these occurred at a generalised level and did not meet the obligation to ‘consider’ all the relevant circumstances.
The applicant submitted that White J’s comments below apply equally in this case, namely:
In the present case, there is so much material to which the Tribunal member did not refer, or about which the Tribunal member did not make findings, that it cannot be concluded that the Tribunal brought ‘an active intellectual process’ to its consideration of the reg 1.15A(3) matters, in the manner in which the Full Court decision in He indicates is required.[32]
[32] Nguyen v Minister for Home Affairs [2018] FCA 1374 at [62].
The applicant further relied upon the comments of her Honour Judge Riley in Truong v Minister for Immigration and Border Protection [2018] FCCA 497 as follows:
Consequently, even if there is a weak case, or no case at all, raised in relation to one of the matters specified in the sub-paragraphs of reg.1.15A(3) of the Regulations, the Tribunal should say so in its reasons.[33]
[33] Truong v Minister for Immigration and Border Protection [2018] FCCA 497 at [20].
Relying on these authorities, it was submitted on behalf of the applicant that whilst the tribunal did refer to the four general topics in regulation 1.15A, it did not specifically refer to much of the material filed by or on behalf of the applicant, and, to a great extent, its comments about the evidence are very generalised and adopt a broad brushed approach.
Specifically, the applicant claimed that the tribunal:
a)did not adequately consider the social aspects of the applicant’s relationship with the sponsor;
b)effectively excluded the affidavits affirmed by the applicant’s parents or have been dealt with in very general terms; and
c)did not make any specific findings as to the nature of the relationship, the nature of the commitment between the applicant and the sponsor and social aspects of the relationship.
It was therefore submitted for the applicant that the court cannot be satisfied that the tribunal engaged with the representations made by the applicant, the sponsor and the other witnesses in relation to each of the matters contained in regulation 1.15A.
Relying on the authorities in He and Nguyen, the applicant submitted that the tribunal did no more than merely recite the evidence presented, or express concerns generally or at a high level of abstraction. This, it was submitted on behalf of the applicant, is not sufficient to demonstrate that the tribunal considered the matters required.
To the extent that the applicant conceded that the tribunal referred to the applicant’s parents’ affidavits at paragraph [69] of the decision record, the applicant said that this occurred in a very general way.
The applicant further relied upon the decision of his Honour Judge Kendall in Enua v Minister for Immigration & Anor [2019] FCCA 3604 as standing for the proposition that:
the decision maker must explain why it accepted some of the evidence or rejected other evidence, discuss what the evidence did or did not prove, and most critically, must make specific findings about all of the circumstances of the relationship that are listed in reg. 1.15A(3).[34]
[34] Paragraph [11] of the applicant’s written submissions filed 3 February 2020, citing Enua v Minister for Immigration & Anor [2019] FCCA 3604 at [75]-[76] and [80]-[88].
For the reasons which follow, I do not accept the applicant’s submission.
The first respondent does not take issue with the applicable principles being those set out in He. However, the difference between the parties is how those principles apply to the facts in this case. As noted by Colvin J in Nguyen v Minister for Home Affairs [2018] FCCA 3504:
the obligation which arises does not extend to making a finding as to the existence or otherwise of every potentially relevant circumstance that might pertain to each consideration. It is only an obligation to make any necessary findings of fact to support the conclusion reached as to each relevant consideration.[35]
[35] Nguyen v Minister for Home Affairs [2018] FCCA 3504 at [17].
The issue then arising in ground one is whether the tribunal gave proper consideration to the factors in regulation 1.15A.
Regulation 1.15A(3) relevantly sets out the matters to which regard must be had in determining whether the parties are in a spousal relationship. I do not propose to set that out in detail.
The tribunal sets out its consideration of the evidence provided by the applicants about their financial dealings with each other at [49] – [56] of its decision. It is evident from the tribunal’s analysis and reasoning in these paragraphs that it is engaging with the evidence submitted by the applicants about their financial affairs. Importantly, the tribunal identifies its concern about the absence of evidence in support of a finding that the applicant and sponsor were in a genuine and ongoing relationship with each other. For example, the tribunal stated:
While couples having separate accounts is not necessarily indicative of two persons not being in a genuine and continuing spousal relationship, the Tribunal notes that in this case it is more the scarcity of financial information generally that is concerning.[36]
[36] Court book page 420 at paragraph [53].
Moreover, the tribunal stated:
In examining the evidence in its entirety, the Tribunal is not persuaded that the parties, either at hearing, or after being provided with another opportunity to establish the sponsor’s and her child’s reliance on the visa applicant, demonstrated significant financial interactions consistent with spouses as defined.[37]
[37] Court book page 419 at paragraph [50].
The tribunal then dealt with the issue of the nature of the household and again, actively engaged with the evidence regarding the extent to which the applicant assists the sponsor in the care of her child and the evidence as to their joint household responsibilities.[38] Whilst the tribunal accepted that the applicant and the sponsor lived together at the applicant’s brother’s home in Point Cook, it did not accept that they did so as spouses and as a family unit.[39]
[38] Court book page 421 at paragraphs [57] to [62].
[39] Court book page 421 at paragraph [62].
The tribunal then addressed the social aspects of the relationship where it considered the nature of the applicant’s relationship with the sponsor.[40] In particular, the tribunal referred to:
a)the evidence about the sponsor’s pregnancy to her ex-boyfriend during her relationship with the applicant;
b)the evidence about the sponsor’s religious practice and the awareness of her marriage within her church community and, importantly, the absence of any evidence from her church about her circumstances;
c)evidence from the applicant’s Sikh temple;
d)statements from various family members and friends about the nature of the applicant’s relationship with the sponsor;
e)the fact that the sponsor notified Centrelink of her marriage to the applicant some 10 days after the marriage; and
f)correspondence from the Royal Children’s Hospital addressed to the applicant and the sponsor about the sponsor’s child.
[40] Court book page 421 at paragraph [63] to page 426 at paragraph [80].
The tribunal set out its analysis and consideration of these matters at paragraphs [70] to [80] and explained why it was not satisfied on the evidence that the applicant was in a spousal relationship with the sponsor.[41] In particular, the tribunal discussed the statements provided by the applicant’s parents and the applicant’s brother and sister in law.[42]
[41] Court book pages 424 at paragraph [70] to 426 at paragraph [80].
[42] Court book pages 424 to 425 at paragraphs [73] and [74].
The tribunal also dealt with the question of the nature of the applicant and sponsor’s commitment to each other at paragraphs [81] to [86] of its reasons. Relevantly, the tribunal concluded:
Overall, the Tribunal is not satisfied that the parties have been able to provide evidence of the existence of a relationship of over five years now. Even if the Tribunal were to completely rule out of the equation the site visit conducted by the Department, the Tribunal is not satisfied that the parties are living together, and not separately and apart, on a permanent basis. For the reasons provided, it also has concerns that the parties do not have a shared life to the exclusion of others.[43]
[43] Court book page 427 at paragraph [85].
To the extent that the applicant asserted that the tribunal did not expressly refer to the items at regulation 1.15A(3)(d)(i)-(iii) and therefore did not consider those matters in the sense required by the principles in He[44], I find that a fair reading of the tribunal’s reasons shows that they did in fact consider and address these matters.
[44] See also Truong v Minister for Immigration [2018] FCCA 497 at [20]
The tribunal clearly engaged with the issue of the length of the applicant’s relationship with the sponsor. At paragraph [12] of its reasons, the tribunal noted that the applicant stated that he was living with the sponsor upon their marriage. The tribunal also noted that the parties were married on 7 January 2012.[45]
[45] Court book page 411 at paragraph [16].
Similarly, the tribunal acknowledged that:
a)it ‘has had regard to the evidence before it that would provide a realistic narrative of the relationship between the parties since the marriage proposal in July 2010…’[46]; and
b)the parties were ‘engaged’ for more than two years prior to their marriage.[47]
[46] Court book page 421 at paragraph [63].
[47] Court book page 425 at paragraph [75].
The tribunal did consider the long-term nature of the relationship and expressed concern about the paucity of evidence available for a relationship of such duration.[48]
[48] Court book page 426 at paragraphs [81] to [84].
It is therefore clear from a fair reading of their reasons as a whole that the tribunal did engage with the question of the length of the relationship between the applicant and the sponsor. However, the issue for the tribunal was not so much the length of their marriage but the genuineness of their relationship. The tribunal ultimately concluded that it was not satisfied that the parties have provided sufficient evidence of a relationship of over five years’ duration.[49]
[49] Court book page 427 at paragraph [85].
Similar comments apply in response to the applicant’s criticism that the tribunal did not engage with or properly consider the length of time the parties lived together. I find that on a fair reading of the tribunal’s reasons, it gave consideration to the fact that the parties had lived together since they married in 2012. The issue again was not how long they had lived together but the nature of their relationship whilst living together. For example, the tribunal recorded that the sponsor said that the parties moved in together after they were married and explained why this had not occurred before they married.[50] The tribunal further referred to the fact that ‘the sponsor did advise Centrelink of her marriage to the applicant just some 10 days after the marriage.’[51]
[50] Court book page 414 at paragraph [33].
[51] Court book page 424 at paragraph [70].
The tribunal’s concerns were clearly articulated at paragraphs [57] to [62]. Whilst they were prepared to accept that the applicant lived together with the sponsor and his brother, it was not satisfied that the applicant sponsor and her child lived there as a family unit. Relevantly, the tribunal said:
…the Tribunal has concerns, however, that the sponsor might only be residing… as a tenant given the paucity of consistent and regular evidence of a joint household for a marriage that is now four years in existence.[52]
[52] Court book page 421 at paragraph [62].
When all of these comments are viewed in the context of the decision as a whole, it is clear that the tribunal gave consideration to the applicant’s claim that he and the sponsor had been living together since they were married in 2012. Again, the tribunal’s primary concern was the absence of evidence that one would expect to support the existence of a genuine spousal relationship of that duration.
I also find that the tribunal did consider the degree of companionship and emotional support between the applicant and sponsor. This arises in the context of the tribunal’s consideration of how the couple dealt with the fact that the applicant became pregnant to a former boyfriend around the time that they were married. In that context, the tribunal noted:
…the evidence submitted is not qualitatively or quantitatively of a kind that sheds light on the degree of companionship and emotional support that the parties draw from each other and whether they see their relationship as long term.[53]
[53] Court book page 426 at paragraph [83].
In considering this issue, the tribunal raised its concerns about the absence of evidence about these matters, notwithstanding claims made since the filing of the application relating to the desire to purchase a home together or to travel to India to celebrate their wedding. The tribunal went on to note:
Their plans all appear to be contingent on the visa applicant gaining permanent residency, leading the Tribunal to have serious questions about whether the relationship was not entered into by the applicant for the sole purpose of gaining a migration outcome.[54]
[54] Court book page 426 at paragraph [83].
Having regard to the impressionistic exercise undertaken by the tribunal and applying the principles set out by Derrington J in Nguyen above, it is implicit in the tribunal’s reasons that it has considered:
a)the length of the relationship;
b)how long the parties have lived together; and
c)whether they considered their relationship to be a long term one.
A fair reading of the tribunal’s reasons makes it clear that they set out clear findings of each of the matters which need to be addressed under regulation 1.15A(3).
Moreover, contrary to the assertion by the applicant, in having regard to the site visit, the tribunal did not exclude the remaining evidence. It had regard to the statements provided by the applicant’s parents and other family members. Those statements however, did not outweigh the concerns the tribunal had about whether the applicant and the sponsor met the requirements of regulation 1.15A.
Having regard to all of these matters, I find that the tribunal did give proper, genuine and realistic consideration to the applicant’s relationship with the sponsor, having regard to the matters set out in regulation 1.15A(3).
For each of these reasons, ground one is not made out.
Ground two
The essence of ground two is a claim that there has been a denial of procedural fairness and a failure to provide the applicant with an opportunity to respond to matters adverse to his case. As noted in the applicant’s written submissions, this ground centres on the manner in which the tribunal dealt with the issue of the information provided during the site visit by the applicant’s parents.
It was further submitted on behalf of the applicant that whilst the tribunal entertained some of the issues raised by the applicant and his brother regarding the claimed mistranslation issues arising from that site visit, the tribunal failed to comply with its obligations under section 359AA(b)(ii) of the Act in not putting the site report (in its entirety) to the applicant and providing him with an opportunity to respond. Moreover, it was claimed that the tribunal failed to provide the applicant the opportunity to provide further response as required by section 359AA(b)(iii).
The applicant relied upon the following passage from Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 (“Alphaone”) as apposite:
Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question.[55]
[55] Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at [30].
It was submitted that this opportunity was not afforded to the applicant as the site report itself was not provided to him to comment on.
In response, the Minister correctly noted that the decision in Alphaone is of limited benefit in the present circumstances, given that section 357A(1) of the Act relevantly states that ‘this Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.’
The issue therefore is whether the tribunal complied with its obligations under Division 5 of Part 5 of the Act, not some broader notions of procedural fairness.
There are three issues which arise in considering this ground, namely:
a)What are the requirements of section 359AA?
b)Does section 395AA apply in this instance?
c)If so, have the requirements been met?
In this case, it is said that both the site report itself and the information about the differences between the Hindi and Punjabi languages constituted such information and the applicant ought to have been invited to comment on those matters. It was submitted that as he was not given this opportunity, there was a failure to comply with section 359AA and consequently, procedural fairness was not afforded to the applicant.
In particular, the applicant pointed to section 359AA(b)(ii) to (iv) as steps which were not followed in this case.
In response, the Minister submitted that the obligations in section 359AA must be read in context. Section 359AA appears in Division 5 of the Act and relevantly provides:
(1)If an applicant is appearing before the Tribunal because of an invitation under section 360:
(a)the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b)if the Tribunal does so – the Tribunal must:
(i) …
(ii) orally invite the applicant to comment on or respond to the information;
(iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and
(iv) if the applicant seeks additional time to comment on or respond to the information – adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.
Section 359A then deals with the circumstances in which the tribunal must give particulars of information to an applicant in writing. Section 359A(3) relevantly provides that where the tribunal gives clear particulars under section 359AA and invites the applicant to comment on or respond to that information under that section, there is no need to provide a written invitation under section 359A.
Importantly, section 359A(4) provides that section 359A does not apply in certain circumstances, including where the information was given by the applicant ‘for the purpose of the application for review’.[56] It was argued on behalf of the Minister that these limitations equally apply to information which needs to be provided pursuant to section 359AA.
[56] Migration Act 1958 (Cth), s. 359A(4)(b).
The site visit was undertaken when the matter was before the Department; that is, before the delegate considered the application. The applicant was invited by the delegate to, and indeed did, comment on the site visit.[57] The applicant provided further affidavits to address some of the concerns raised by the site visit. The delegate’s decision explained the concerns that remained, notwithstanding the applicant’s evidence.
[57] Court book pages 156 to 157.
This information was then submitted by the applicant to the tribunal as part of his application for review. It was submitted on behalf of the Minister that the site visit information therefore falls within section 359A(4)(b) of the Act and need not have been put to the applicant for further comment.
The applicant refuted this submission and said that while the applicant had details of the site report as summarised in the delegate’s decision, it did not have the site report in its entirety until after it received the tribunal’s decision record.
Whilst it is the case that the applicant was not provided with the actual site report until it set out in full in the tribunal’s decision, the substance of that report was provided to the applicant by the delegate and he was invited to comment on it.
I accept the Minister’s submission that the site report itself, as opposed to the content of the report, does not constitute information in respect of which the tribunal was required to provide to and invite comment from the applicant.[58]
[58] AAJ17 v Minister for Immigration and Border Protection [2018] FCA 205 at [28].
In any event, even if I am wrong about this, as submitted by the Minister, it is clear from the tribunal’s reasons that in the course of the hearing before it, the tribunal did put the matters contained in the site report to the applicant and invited him to comment on them.
The decision record makes it clear that the tribunal was aware of the requirements of section 359AA insofar as it said:
While the Departmental decision generally sets out the findings of the visit, the Tribunal thought it important to put to the applicant pursuant to section 359AA the entire contents of the report – its relevance and how the Tribunal may rely on it. The Tribunal explained the site visit may show that the parents’ statements with the Departmental officers might show that the parties were not in a genuine and continuing spousal relationship as it was not accepted by them and that it had been entered into solely for the purpose of attaining a migration outcome by the visa applicant (emphasis added).[59]
[59] Court book page 414 at paragraph [39].
The fact that the tribunal did not specifically refer to the matters in section 359AA(b)(iii) or (iv) does not mean that it did not raise these matters with the applicant. The tribunal is not required to set out every procedural step that it takes in reaching its conclusions; rather it is only required to set out its decision, its reasons for that decision and its findings on any material question of fact, pursuant to section 368(1)(a) – (c) of the Act.[60]
[60] BAY17 v Minister for Immigration and Border Protection [2019] FCAFC 44 at [49] – [50] and cases referred to therein.
The applicant was also critical of the tribunal’s reliance upon information obtained from a website as to the differences between the Hindi and the Punjabi languages. It was submitted on behalf of the applicant that the tribunal failed to invite the applicant to make submissions on the use of that resource.
It is true that the tribunal does not appear, on the face of the decision record, to have put the online information regarding the differences between the Hindi and Punjabi languages to the applicant. However, this is not ‘information’ for the purposes of section 359AA as it was not about the applicant personally or a class of persons of which the applicant was a member. It therefore came within section 359A(4)(a) of the Act and is properly characterised as generic or country information, which did not need to be specifically put to the applicant for comment.
The applicant relied on the decision of Katzmann J in SZNXQ v Minister for Immigration and Citizenship [2010] FCA 276 in support of the proposition that the tribunal should give the applicant an opportunity to make submissions about such information before relying upon it. With respect, this submission overstates the import of that part of Katzmann J’s decision. Katzman J referred to the Federal Magistrate’s decision from which an appeal had been brought, and stated:
…the Federal Magistrate stated that it is well-established that the Tribunal may rely on independent country information and give it such weight as it thinks fit. He referred to the fact that the Tribunal used Wikipedia as the source of some of the information. …In any event, the Federal Magistrate considered that it was of significance that the Tribunal specifically discussed the information it had drawn from the Wikipedia entries and gave him an opportunity to make any submissions he wished about it.[61]
[61] SZNXQ v Minister for Immigration and Citizenship [2010] FCA 276 at [26].
This comment does not rise to the level now apparently contended for by the applicant, that the tribunal is obliged in every case to put country information from sources such as Wikipedia to the applicant. Nor do I accept that the tribunal is required to do so. As noted by Katzmann J, it is well accepted that the tribunal may have regard to country information and give it such weight as it considers appropriate. The open source information the tribunal had regard to in this instance falls into that category.
The applicant further argued that the misunderstanding during the site visit is akin to a translation error and the court ought to have regard to authorities which deal with issues of mistranslation in the context of a hearing before the delegate or the tribunal.
The leading case in this regard is Perera v Minister for Immigration and Multicultural Affairs (1999) FCA 507 (“Perera”). In that case, the issue was whether in conducting a hearing the tribunal and the applicant had the benefit of adequate interpreting services and if not, whether this amounted to the Tribunal failing to perform its statutory task.
The court noted that Mr Perera’s answers were ‘frequently unresponsive to the specific questions asked and, at times, virtually incoherent.’[62] It concluded, ‘I accept that a failure by the Tribunal to provide a competent interpreter to assist a non-English speaking applicant for refugee status may constitute a ground for review within s 476 of the Act.’[63]
[62] Perera v Minister for Immigration and Multicultural Affairs (1999) FCA 507 at [16].
[63] Perera v Minister for Immigration and Multicultural Affairs (1999) FCA 507 at [17].
The court went on to say:
In this country, the function of an interpreter in courts and tribunals is to convey in English what has been said in another language (and vice versa). The function of an interpreter in the Tribunal… is to place the non-English speaker as nearly as possible in the same position as an English speaker. In other words, an interpreter serves to remove any barriers which prevent or impede understanding or communication… An interpreter provides the means for communication between the applicant, the Tribunal and other participants in the Tribunal hearing, in cases where the applicant’s own linguistic capacities are not, on their own, sufficient to that end.[64]
[64] Perera v Minister for Immigration and Multicultural Affairs (1999) FCA 507 at [24].
As to the standard of interpretation which is required, the court said:
Whilst the interpretation at a Tribunal hearing need not be at the very highest standard of a first-flight interpreter, the interpretation must, nonetheless, express in one language, as accurately as that language and the circumstances permit, the idea or concept as it has been expressed in the other language.[65]
[65] Perera v Minister for Immigration and Multicultural Affairs (1999) FCA 507 at [29].
In Perera, the issue was whether it was clear, by reference to the transcript of the proceedings before the tribunal, that the level of interpretation was so incompetent that the applicant was prevented from giving his evidence.[66] The court said:
What are the factors that might lead a reviewing court to conclude that the transcript of a Tribunal hearing discloses such incompetence in the interpretation that, in consequence, the applicant for refugee status can be said to have been effectively prevented from giving his evidence? In my opinion, those factors include, amongst others, the responsiveness of the interpreted answers to the questions asked, the coherence of those answers, the consistency of one answer with another and the rest of the case sought to be made and, more generally, any evident confusion in exchanges between the Tribunal and the interpreter.[67]
[66] Perera v Minister for Immigration and Multicultural Affairs (1999) FCA 507 at [38].
[67] Perera v Minister for Immigration and Multicultural Affairs (1999) FCA 507 at [41].
Importantly however, Perera also stands for the proposition that it is not every departure from the appropriate standard of interpretation which will prevent an applicant from giving evidence; ‘the departure must relate to a matter of significance for the applicant’s claim or the Tribunal’s decision.’[68]
[68] Perera v Minister for Immigration and Multicultural Affairs (1999) FCA 507 at [45].
In this case, it was submitted on behalf of the applicant that there was a translation error in relation to the site visit and therefore, in order to afford the applicant procedural fairness, it was necessary for the tribunal either to have:
a)excluded the site report entirely; or
b)afforded the applicant the opportunity to respond to the matters raised in the site report and the question of the comparison between the Hindi and Punjabi languages.
As noted, in a tribunal hearing, the issue can arise as to whether the standard of interpreting is so inadequate that it is not possible for the applicant to have been given a fair hearing. That is:
a)Was the applicant able to understand the matters that the tribunal wanted to put to him?; and
b)Was the applicant provided with an opportunity to convey his answers in such a way that the tribunal could understand its intended meaning?
However, the case law also indicates that communication is not a precise art. Even where there are no language issues per se, there is scope for misunderstanding in any communication between two individuals. The question is not whether every single word was understood and conveyed, but whether an opportunity was provided to convey the essence of what was said.
These same principles are applicable in circumstances where interpreters are used during a hearing to take evidence from a witness. That is, where a party seeks to lead evidence from a witness to support their claim, it is important that the interpreting is of a sufficient standard to allow that evidence to be given, appropriately tested and received.
In this case, the site visit was a form of testing of the evidence given by the applicant’s parents, and also of the applicant and other witnesses about the nature of the applicant’s relationship with the sponsor.
As noted by Allsop CJ in SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142:
The question whether standards of interpretation have affected a hearing as an opportunity to be heard is a question of evaluation as to whether the hearing was fair. That in turn involves the recognition of the purpose of the hearing: to give the person concerned or affected by the exercise of power a real opportunity to place before the repository of the power such information as is relevant. This will require a substantially effective mechanism of communicating oral and written information, both from, and to, the person. To the extent that interpretation or translation is necessary, it must be adequate to convey the substance of what is said, to a degree that the hearing can be described both as real and fair. It will be a matter of evaluation in all the circumstances, by reference to the issues, the nature of the evidence, the character and frequency of any proven errors in interpretation, and any other factor apparently relevant to the quality of the communication, as to whether the hearing was fair. Relevant to the task will be how the decision-maker approached the resolution of the task before her or him.
…It can, in this context of adequacy of communication through interpretation, be perhaps better expressed as requiring that the hearing be fair. How, it might be asked rhetorically, can a hearing be described as fair, when it can be shown that real and potentially material errors of substance occurred in interpreting or translating a person’s version of events to a decision-maker, being errors that may well have affected the decision in a real way, though such causal effect cannot be demonstrated one way or another?[69]
[69] SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142 at [9]-[10].
It is conceded that not every error in translation will rise to the level of a jurisdictional error. Rather, it must be shown to have related to a matter of significance for the claim or the decision.
In this case, there are a number of matters of significance which need to be noted. Firstly, the issue in question is whether the persons who conducted the site visit spoke to the applicant’s parents in Hindi or in Punjabi, the latter being the language spoken by the applicant’s parents. There is no direct evidence before the court, nor was there any before the tribunal on this point. In particular, there was no evidence led from the individuals who conducted the site visit as to the language they spoke. Therefore, whilst no interpreter was involved, an issue has been raised as to whether information contained in the site report is an accurate record of the information provided by the applicant’s parents or, whether due to a language issue, that evidence has been incorrectly recorded.
The applicant raised his concerns with the tribunal about the language spoken during the site visit. The Tribunal considered:
a)those concerns;
b)the fact that there was some ambiguity in the site report as to what language was actually spoken; and
c)country information about the differences between the Hindi and Punjabi languages;
and concluded:
The Tribunal has taken into account that Punjabi (assuming that the officers did speak Hindi) is a different language to the Hindi language, although the dissimilarities seem confined to the written languages.[70]
[70] Court book page 418 at paragraph [43].
The tribunal further noted that, in any event:
…the visa applicant’s parents appeared to be responding to precise questions from the officers and that from the transcript it is clear that the applicant’s parents themselves did not raise any issues about not understanding the officers or the officers not understanding the visa applicant’s parents, for that matter.[71]
[71] Court book page 418 at paragraph [44].
The tribunal also had regard to the written and verbal submissions made by the applicant’s migration agent and concluded:
The Tribunal is not entirely convinced that the visa applicant’s parents did not understand the gist of what the officers were saying to them but is prepared to accept that there may have been some misunderstandings and the Tribunal therefore places less weight on the findings of the site visit and considers that its focus ought to be on the requirements of Regulation 1.15A.[72]
[72] Court book page 418 at paragraph [46].
Each of these findings were open to the tribunal on the basis of the totality of the evidence before it. I am not satisfied that the applicant has established that there was a translation error in the information obtained during the site visit, which would have resulted in it being unfair for the tribunal to have had regard to that evidence in the limited extent that it did.
Whilst the tribunal did not totally disregard the information obtained during the site visit, it placed limited weight on that evidence and focused on the factors outlined in regulation 1.15A.
For each of these reasons, ground two is not made out.
Conclusion
As neither of the applicant’s amended grounds of review have been made out, I order that the applicant’s application be dismissed and the applicant pay the first respondent’s costs in a sum to be fixed.
I certify that the preceding one hundred and fourteen (114) paragraphs are a true copy of the reasons for judgment of Judge Mercuri
Associate:
Date: 19 June 2020
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