Singh v Minister for Immigration
[2015] FCCA 382
•24 February 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 382 |
| Catchwords: ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that the Tribunal did not consider all the circumstances of the applicant’s relationship with his wife and erroneously took certain evidence into account. |
| Legislation: Migration Act 1958, ss.5F, 474 Migration Regulations 1994, regs.1.15A, 1.22, 1.23, cls.820.211 and 820.221 of sch.2 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) (2004) 144 FCR 1 |
| Applicant: | RAMANDEEP SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 2677 of 2013 |
| Judgment of: | Judge Cameron |
| Hearing date: | 9 February 2015 |
| Date of Last Submission: | 9 February 2015 |
| Delivered at: | Sydney |
| Delivered on: | 24 February 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr R. Nair |
| Counsel for the First Respondent: | Mr T. Reilly |
| Solicitors for the Respondents: | DLA Piper Australia |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2677 of 2013
| RAMANDEEP SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant, who is a citizen of India, applied for a Partner (Temporary) (Class UK) subclass 820 visa on 24 November 2010. On 11 November 2011 the application was refused by a delegate of the first respondent (“Minister”) on the basis that the applicant did not satisfy cl.820.211 of sch.2 to the Migration Regulations 1994 (“Regulations”) because he and his sponsor did not meet the definition of “spouse” found in s.5F of the Migration Act 1958 (“Act”). The applicant then applied to the second respondent (“Tribunal”) for a review of that departmental decision. He was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
In these judicial review proceedings the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Act; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
Relevant legislation
Spousal relationship
The criteria for the grant of a subclass 820 visa are set out in pt.820 of sch.2 to the Regulations. One of the criteria which the applicant had to satisfy at the time he made his application was cl.820.211. It relevantly provided:
(2) An applicant meets the requirements of this subclause if:
(a)the applicant is the spouse or de facto partner of a person who:
(i) is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and
(ii) is not prohibited by subclause (2B) from being a sponsoring partner; and
(c) the applicant is sponsored:
(i) if the applicant’s spouse or de facto partner has turned 18—by the spouse or de facto partner; …
Section 5F of the Act defines “spouse” and relevantly provides:
(1)For the purposes of this Act, a person is the spouse of another person if, under subsection (2), the 2 persons are in a married relationship.
(2)For the purposes of subsection (1), persons are in a married relationship if:
(a)they are married to each other under a marriage that is valid for the purposes of this Act; and
(b)they have a mutual commitment to a shared life as husband and wife to the exclusion of all others; and
(c)the relationship between them is genuine and continuing; and
(d) they:
(i) live together; or
(ii) do not live separately and apart on a permanent basis.
(3)The regulations may make provision in relation to the determination of whether one or more of the conditions in paragraphs (2)(a), (b), (c) and (d) exist. The regulations may make different provision in relation to the determination for different purposes whether one or more of those conditions exist.
In relation to the determination of whether two persons are in a married relationship, reg.1.15A relevantly provides:
(2) If the Minister is considering an application for:
…
(d) a Partner (Temporary) (Class UK) visa;
the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).
(3) The matters for subregulation (2) are:
(a)the financial aspects of the relationship, …
(b)the nature of the household, …
(c)the social aspects of the relationship, …
(d)the nature of the persons’ commitment to each other, … .
Family violence
When the delegate and Tribunal made their decisions on the applicant’s application, cl.820.221 relevantly provided:
820.22 Criteria to be satisfied at time of decision
820.221
…
(3) An applicant meets the requirements of this subclause if:
(a)the applicant would continue to meet the requirements of subclause 820.211(2), (3), (4), (5) or (6) except that the relationship between the applicant and the sponsoring partner has ceased; and
(b) either or both of the following circumstances applies:
(i) either or both of the following:
(A) the applicant;
…
has suffered family violence committed by the sponsoring partner;…
Regulations 1.22 and 1.23 set out the evidentiary requirements relevant to a claim of family violence. At all material times they relevantly provided:
1.22 References to person having suffered or committed family violence
(1)A reference in these Regulations to a person having suffered family violence is a reference to a person being taken, under regulation 1.23, to have suffered family violence.
…
1.23 When is a person taken to have suffered or committed family violence?
…
Circumstances in which family violence is suffered and committed—court order
(4)The alleged victim is taken to have suffered family violence, and the alleged perpetrator is taken to have committed family violence, if:
(a)a court has made an order under a law of a State or Territory against the alleged perpetrator for the protection of the alleged victim from violence; and
…
(5)For subregulation (4), the violence, or part of the violence, that led to the granting of the order must have occurred while the married relationship or de facto relationship existed between the alleged perpetrator and the spouse or de facto partner of the alleged perpetrator.
Background facts
Primary application
As already noted, the applicant applied for a Partner (Temporary) (Class UK) visa on 24 November 2010. His application was sponsored by his wife, Kirsty McDonald, an Australian citizen. In support of his application the applicant provided an undated joint statement made by him and Ms McDonald. In it they relevantly claimed that:
a)they met on the Gold Coast on 8 July 2010 when the applicant drove Ms McDonald and her son in his taxi. They exchanged telephone numbers and started calling each other. The applicant visited Ms McDonald’s home on a daily basis;
b)in July 2010 Ms McDonald introduced the applicant to her mother and step-father. In August 2010, they told their family and friends of their relationship;
c)they talked about their future and as the applicant was about to complete his studies they decided to get married; and
d)they had an engagement party on 13 October 2010 and were married on 21 November 2010. Because the applicant’s culture did not allow them to live together before they married, they only started living together in a unit in the Gold Coast after their wedding.
The applicant also provided:
a)statutory declarations declared by Ms McDonald’s mother and step-father dated 18 November 2010 stating that they had known the applicant for five months and believed his relationship with their daughter to be genuine and continuing;
b)a letter from ANZ Bank dated 1 November 2010 confirming that the applicant and Ms McDonald had opened a joint account; and
c)a letter dated 19 November 2010 from the property managers of the applicant’s and Ms McDonald’s apartment complex confirming that the applicant resided there.
On 3 February 2011 Ms McDonald wrote to the Minister’s department advising that her relationship with the applicant had ended on 10 January (2011) because of irreconcilable differences and that she viewed their separation as permanent. On 12 May 2011 the delegate wrote to the applicant advising him of Ms McDonald’s withdrawal of her sponsorship and seeking information on how he wished to proceed with his application. In response the applicant provided a copy of a domestic violence protection order made by the Queensland Magistrates Court on 1 August 2011 which named him as the applicant and Ms McDonald as the respondent. The applicant also later provided a statutory declaration dated 21 September 2011 in which he relevantly claimed:
a)in December 2010 Ms McDonald expressed her desire to have a child with him but he said they should wait until they were more financially stable. Ms McDonald became upset and started abusing him, including calling him a “bloody Indian”, blowing cigarette smoke in his face and once spitting in his face;
b)Ms McDonald also sent him some threatening text messages and when he could no longer take it he went to see a friend in Sydney. That friend took him to a migration agent who advised him to apply for a skilled graduate visa. He moved out of Ms McDonald’s home but at the time hoped that their relationship would improve and he would return; and
c)Ms McDonald applied for a temporary domestic violence order on the basis of false allegations. He also lodged a domestic violence order application and decided to end the relationship.
As noted, on 11 November 2011 the delegate refused the applicant’s application on the basis that he and Ms McDonald did not meet the definition of “spouse” in s.5F of the Act at the time he made his application and accordingly did not meet the requirements of cl.820.211 of sch.2 to the Regulations.
Tribunal proceedings
The applicant provided the following documents to the Tribunal:
a)an email from a property manager dated 18 January 2013 stating that the applicant had lived with Ms McDonald from 19 October 2010;
b)the applicant’s and Ms McDonald’s joint bank statements from 1 November 2010 to 14 February 2011, when the account was closed, showing deposits totalling $1,100;
c)two statutory declarations from friends of the applicant who said that they had met Ms McDonald before she and the applicant married;
d)two statutory declarations from a manager and a cook at an Indian restaurant where the applicant and Ms McDonald had dined before their relationship ended;
e)a certified copy of the protection order made in his favour on 1 August 2011;
f)a transcript of the protection order hearing which showed that the order was made by consent and without admissions by Ms McDonald and that Ms McDonald withdrew her application against the applicant at that same hearing;
g)copies of text messages between the applicant and Ms McDonald dated from August 2010 to February 2011; and
h)a report dated 25 October 2011 from a psychologist who had first seen the applicant on 13 July 2011.
The applicant made the following claims at the Tribunal hearing on 18 February 2013:
a)he and Ms McDonald lived together from 7 November 2010 to 10 January 2011. The claim in his and Ms McDonald’s joint statement that they could not live together before they were married was incorrect. The statement had been prepared by their solicitor;
b)he and Ms McDonald had rarely used their joint account because as a taxi driver he preferred to use cash rather than bank his takings. He would give his takings to Ms McDonald who would then pay their household expenses. Ms McDonald’s Centrelink payments went into a separate account. Some transactions in the joint account had occurred in Sydney because Ms McDonald had travelled to Sydney on three occasions;
c)he had had a good relationship with Ms McDonald’s son but had not seen him since his separation from Ms McDonald;
d)his family was aware of his marriage to Ms McDonald but, apart from his brother who also lived in the Gold Coast, they had never met her. Ms McDonald had spoken to his family on the telephone but his family spoke very little English;
e)his problems with Ms McDonald started after 17 December 2010 and became more serious after Christmas; and
f)the text messages he had provided supported his claims that incidents of domestic violence had occurred while he was in a genuine and continuing spousal relationship with Ms McDonald.
The Tribunal’s decision and reasons
The Tribunal was satisfied that the applicant and Ms McDonald married on 21 November 2010. However, for the following reasons it found that they had not had a genuine spousal relationship at the time of the applicant’s application on 24 November 2010 and therefore that he did not satisfy cl.820.211 of sch.2 to the Regulations:
a)the Tribunal found that the applicant had given evasive and unconvincing evidence, particularly in response to questions about the development of his relationship with Ms McDonald and their cohabitation;
b)the Tribunal found that the applicant and Ms McDonald had not lived together before the applicant lodged his visa application. In that regard, it found that none of the statutory declarations produced by the applicant stated that he had cohabited with Ms McDonald. The Tribunal further found that the applicant’s evidence at its hearing contradicted the statement he made jointly with Ms McDonald. It also found that the text messages produced by the applicant made it clear that he and Ms McDonald had not cohabited before he lodged his application, contrary to his evidence that they had done so from 7 November 2010. Specifically:
i)from 7 to 12 November 2010 they continually exchanged text messages indicating that they were not spending the night together, such as wishing each other a good night;
ii)on 12 November 2010 Ms McDonald flew to Sydney where she remained until 19 or 20 November 2010;
iii)on the day of their wedding the applicant texted Ms McDonald telling her that he missed her and later texted her wishing her a good night;
iv)on 26 and 27 November 2010 they exchanged further text messages which indicated that they were not spending those nights together; and
v)while the text messages from 29 November to 11 December 2010 provided support for the claim that they were living together as they referred to “our room” and “our bed”, on 11 December 2010 the applicant sent Ms McDonald a message saying he was going to sleep and on 12 and 15 December 2010 they exchanged messages wishing each other good night;
c)the Tribunal noted that the joint bank account statements produced by the applicant disclosed little activity and that there was no other evidence before it of shared finances. In the absence of any corroborating evidence, the Tribunal did not accept that the little activity was because the applicant preferred to deal in cash and that he gave all his takings to Ms McDonald, particularly as the text messages he produced contained numerous requests for cash from Ms McDonald for cigarettes, rent and her son’s childcare expenses. In those circumstances, the Tribunal did not consider that the evidence of the financial aspects of the applicant’s and Ms McDonald’s relationship supported the existence of a genuine marital relationship between them;
d)the Tribunal found that there was no evidence before it that the applicant had accepted any responsibility for the care and support of Ms McDonald’s son, other than references in the text messages to Ms McDonald asking him to drive her to collect her son from childcare;
e)the Tribunal found that the statutory declarations provided in support of the applicant’s application indicated that he and Ms McDonald had represented themselves to other people as being married. However, it found that those statutory declarations did not outweigh its concerns as to the truth of the applicant’s claimed cohabitation with Ms McDonald; and
f)while it found that there was a relationship of some kind between the applicant and Ms McDonald and that they had slept in the same house at least for a short period of time after the application was lodged, the Tribunal was not satisfied that their relationship could be characterised as a spouse relationship. It was not satisfied that either of them saw their relationship as long-term and did not accept the applicant’s claim that his relationship with Ms McDonald had been continuing at the time he made his application.
The Tribunal noted that the applicant claimed that his relationship with Ms McDonald had ended but that he was still entitled to receive the visa he sought because he had suffered family violence at Ms McDonald’s hand. It noted that before it could assess the applicant’s claims of family violence, it had to consider whether there had been a spousal relationship at the time of those alleged acts of violence. Having found that the applicant had not been in a genuine spousal relationship with Ms McDonald, the Tribunal found that there was no need for it to consider his family violence claims.
Proceedings in this Court
In his further amended application the applicant alleged:
1.The Tribunal did not accord the applicant procedural fairness in that it did not consider all the circumstances of the relationship. It did not consider evidence in the sponsorship form completed by the sponsor. It did not consider evidence in the letter from the sponsor withdrawing her sponsorship.
Particulars
1.The review before the Tribunal was from a refusal by the first respondent’s delegate to grant the applicant a Subclass 820 Partner (Temporary)(Class UK) visa.
2.The applicant married his sponsor on 21 November 2010. He applied for the visa on 24 November 2010.
3.The only issue arising on the review before the Tribunal was whether, at the time of application, the applicant’s sponsor was his spouse.
4.Migration Regulation 1.15A provided in determining this issue the Minister must all the circumstances of the relationship [sic].
5.The sponsorship (on Form 40SP – Sponsorship for a partner to migrate to Australia), dated 23 November 2010 and signed by the sponsor was lodged on 24 November 2010 (CB Vol 1 pp 30 to 38) as part of the application for the visa. The sponsor provided information that she was the applicant’s spouse.
6.The Tribunal did not consider the evidence in the sponsorship form.
7.The applicant withdrew her application in a letter dated 3 February 2011 (CB Vol 1, p.64).
8.The Tribunal did not consider the circumstances revealed by the content of this letter that confirmed that the applicant had been sponsored by his spouse.
9.The Tribunal denied the applicant procedural fairness by not considering the information provided by his sponsor in the sponsorship form completed by her and by not considering evidence in his sponsor’s withdrawal letter.
2.The Tribunal misconstrued and misapplied the law. It failed to consider all the circumstances of the relationship. It failed to consider evidence in connection with domestic violence. It failed to consider that the sponsor had alleged the domestic violence started before the marriage. It failed to consider that the applicant had sought a court order to recover his property. It failed to consider the sponsor’s continuing use of the applicant’s surname, in her Protection Order Application and in the letter from her to the Department of Immigration and Citizenship withdrawing her sponsor.
Particulars
1.The Tribunal misconstrued the law.
2.The Tribunal misapplied the law.
3.The Tribunal failed to consider circumstances revealed by the evidence in connection with domestic violence:-
i. The Tribunal failed to consider the sponsor’s allegation that the domestic violence started before the marriage.
ii. The Tribunal failed to consider the applicant’s request for an order seeking the return of personal property located at the sponsor’s premises.
iii. The Tribunal failed to consider the sponsor’s continuing use of the applicant’s surname after the end of the relationship.
3.The Tribunal misconstrued and misapplied the law. The Tribunal failed to take into account that, when there is an issue as to the existence of a fact at a particular date, the evidence of history subsequent to the date is only relevant if this evidence tends logically to show the existence or non-existence of facts relevant to this issue. The Tribunal erred in law when it purported to rely on the contents of text messages between the applicant and his sponsor to determine the applicant’s sponsor was not his spouse at the time of application.
Particulars
1.The applicant provided the Tribunal with text messages between him and his sponsor including text messages sent on or after 11 December 2010.
2.The Tribunal relied on the contents of the text messages to conclude that the couple had never been “in a genuine married relationship”, and accordingly, that the applicant’s sponsor was not his spouse at the time of time [sic] (CB Vol 1, p.304 at [56]; p.305 at [57]).
3.As a matter of law, it was not open to the Tribunal to use the text messages to determine that the applicant’s sponsor was not his spouse at the time of application.
4.The Tribunal’s purported determination that the applicant’s sponsor was not his spouse at the time of application was vitiated by this misconstruction and misapplication of the law. It was jurisdictional error.
Ground 1
Submissions
The applicant alleged that the Tribunal failed to consider “all of the circumstances of the relationship” as required by reg.1.15A in that it had failed, he alleged, to consider whether his sponsor had considered her relationship with him to be a genuine spousal relationship. The applicant alleged that this failure was evidenced by the Tribunal’s failure to consider certain information contained in two documents, namely:
a)the sponsor’s sponsorship form; and
b)the sponsor’s letter of withdrawal dated 3 February 2011.
The applicant referred to information contained in the sponsorship form concerning the length of the sponsor’s relationship with him, when they decided to marry, where and when their married or de facto relationship commenced, whether the relationship was de jure or de facto and whether she and the applicant intended to maintain a lasting relationship. The applicant submitted that because the Tribunal had not referred to this information one could infer that it had not considered it.
The sponsor’s letter of 3 February 2011 relevantly said:
Our relationship came to an end on 10.01 due to irreconcilable differences and I see this separation as being permanent. (CB 64)
The Tribunal referred to that letter in the following terms:
Also on the Departmental file is a letter dated 3 February from the sponsor advising that she wished to withdraw the sponsorship because their relationship ended on 10 January (presumably 2011) and ‘I see this separation as permanent’. (CB 298[22])
The applicant submitted that there had been more information in the letter than the Tribunal cited. In particular, he submitted that the word “relationship” implied, in the context of the sponsorship form, a spousal relationship and that the words “irreconcilable differences” also impliedly referred to a spousal relationship because they were commonly used in divorce proceedings. The applicant submitted that the Tribunal had not considered the information conveyed by that letter to the effect that the applicant and his sponsor had been in a spousal relationship.
Consideration
It is correct that the Tribunal did not refer in its reasoning to those aspects of the sponsorship form and the letter of withdrawal dated 3 February 2011 which indicated that the sponsor considered herself to have been in a genuine spousal relationship with the applicant but that does not mean that the Tribunal failed to consider that issue or “the circumstances of the relationship”. The sponsor made her views on that question clear in the statement which she and the applicant jointly made and which was reproduced at length in para.21 of the Tribunal’s reasons. The sponsor made unequivocal assertions in that statement that her relationship with the applicant was a genuine and committed spousal relationship.
In para.54 of its reasons, under the heading “Nature of their commitment to each other”, the Tribunal relevantly said:
The evidence in the various statements and statutory declarations referred to above and the unsatisfactory evidence of the applicant at the hearing are clearly contradicted by the contents of the text messages produced to the Tribunal.
The statements and statutory declarations to which the Tribunal was referring were ones which attested to the genuineness of the spousal relationship between the applicant and the sponsor and included their joint statement. Specifically, those statements and statutory declarations concerned not just the applicant’s attitude to the relationship but also the sponsor’s. In those circumstances, I am not persuaded that the Tribunal did not consider the sponsor’s ostensible endorsement of the genuineness of the relationship. As a consequence, even if the two documents now relied on by the applicant were not specifically considered in that context, I find that the failure to comply with reg.1.15A(3) alleged by the applicant has not been made out.
Ground 2
Submissions
The paperwork associated with the protection orders sought and made in the Queensland Magistrates Court referred to the sponsor’s allegation that the domestic violence started before the marriage, that the applicant had sought the return of personal property and that the sponsor had continued to use the applicant’s surname after the end of their relationship. The applicant said that these were circumstances of his relationship with the sponsor which went to the credibility of his claims and were matters which had to be considered by the Tribunal. He submitted that this information was not considered by the Tribunal.
Consideration
The applicant first supplied his protection order in response to a departmental request of 12 May 2011 that he provide evidence of judicial or non-judicially determined claims of family violence. At that time he made no particular submissions in connection with the document. Specifically, the department’s attention was not drawn to the matters which the applicant now wishes to highlight. The documents were also submitted to the Tribunal at the hearing under cover of a submission reproduced at pages 223-227 of the Court Book which was exhibit 1. Again, the applicant did not suggest that the starting date of the alleged family violence or the fact that he sought the return of personal property were matters relevant to whether or not his relationship with the sponsor had been a genuine spousal relationship.
In NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) (2004) 144 FCR 1 at 20 [62], the Full Court of the Federal Court referred to what Gleeson CJ had said in Appellant S395/2002 v Minister for Immigration & Multicultural Affairs (2003) 216 CLR 473 at 479 [1] in the context of the Refugee Review Tribunal:
Proceedings before the Tribunal are not adversarial; and issues are not defined by pleadings, or any analogous process. Even so, this Court has insisted that, on judicial review, a decision of the Tribunal must be considered in the light of the basis upon which the application was made, not upon an entirely different basis which may occur to an applicant, or an applicant’s lawyers, at some later stage in the process.
Further, in NAVK v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1695 Allsop J said at [15]:
From NABE I take it that the Tribunal is not required to consider a claim that is not expressly made or does not arise clearly on the materials before it: NABE at [61]. As the Full Court said at [63] much depends on the circumstances.
In the absence of compelling reasons to conclude otherwise, where an applicant is professionally represented, as was the case here, it must be assumed that the claims which the applicant wished to make before the Tribunal were the ones expressly articulated by him or her and his or her advisers and that any arguable claims which were not expressly articulated were not pressed. If a represented applicant has not pursued an issue, then that is his or her election: SZRPA v Minister for Immigration & Citizenship [2012] FCA 962 at [10] and [26]; SZQFR v Minister for Immigration & Citizenship [2013] FCA 574 at [57]; SZSHK v Minister for Immigration & Border Protection (2013) 138 ALD 26 at 35 [37]. As the applicant did not suggest to the Tribunal that the commencement date of the alleged family violence and his pursuit of an order for the return of property were aspects of his claims, the Tribunal did not err by not taking them into account when considering his claims.
However, the applicant did submit to the Tribunal that the sponsor’s use of his surname was a matter which pointed to the existence of a committed and long term relationship. The submissions relevantly said:
… Further in her protection order application Kirtsy [sic] mentioned her family name as SINGH and she declared her address … . No woman will declare someone else’s surname as her’s [sic] unless she is in a committed relationship. Declaration of surname as ‘SINGH’ in her application clearly proves that relationship existed until at least that point. …
… Even in protection application Kirtsy [sic] mentioned her family name as ‘SINGH’ clearly shows that she was also committed to long term relationship, just like me. … (CB 225, 226).
It is apparent that the Tribunal was aware of the protection order proceedings in the Queensland Magistrates Court. Nevertheless, I think it likely that this minor aspect of that material, the submissions concerning which were small and unremarkable comments buried in a five page written submission concerned with domestic violence, was overlooked by the Tribunal.
An applicant who has established procedural deficiency on the part of the Tribunal is entitled to succeed unless the Court is satisfied that that unfairness could have had no bearing on the outcome: Dagli v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 133 FCR 541 at 557 [91], 558 [95] and 559 [97]; NARV v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 133 FCR 89 at 100-101 [17]-[18].
The material upon which the Tribunal based its decision was solid and cogent whereas the applicant’s submission was speculative and unsupported by any evidence from the sponsor concerning the significance of her use of the applicant’s name. Further, the evidence referred to in the applicant’s submission added nothing of substance to the allegations concerning the nature of their relationship which he and the sponsor had already made in their joint statement which I have found the Tribunal did consider. In the circumstances, I am satisfied that any failure by the Tribunal to advert to the applicant’s submission regarding the significance of the sponsor’s use of his surname could have had no bearing on the outcome of the review.
Consequently, I find that any failure by the Tribunal to consider the sponsor’s continued use of his surname did not amount to a failure by the Tribunal to discharge its duty to review.
Ground 3
Submissions
The applicant submitted that the Tribunal should not have relied on the text messages passing between him and his sponsor as evidence that they were not truly in a spousal relationship. He referred to Re Barbara June Bretag v Immigration Review Tribunal [1991] FCA 582 at [12] where O’Loughlin J said:
But the evidence of the subsequent history is only relevant so long as it “tends logically to show the existence or non-existence of facts relevant to the issue to be determined”: Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85; (1980) 4 ALD 139 at p.160 per Deane J.
The applicant submitted that, as a matter of law, it was not open to the Tribunal to use the text messages to determine that the sponsor was not his spouse at the time of the application. In addresses he asked rhetorically how that information could have been probative of their states of mind.
The applicant also submitted that the most that the Tribunal could infer from the text messages was that on certain dates the applicant and the sponsor were not sleeping at the same premises. He submitted that it was not logical to conclude from that inference that he and his sponsor were not living together on those dates or at the time of application.
Consideration
The fact that amongst the texts referred to by the Tribunal was one from the applicant’s wedding day, three days before the visa application was lodged, which indicated that the applicant and his wife were not spending the night together was evidence relevant to the nature of the couple’s relationship. So were the text messages sent less than a week later which indicated that the couple were apart for two nights. Those messages, particularly because they were so close in time to their marriage and the date of the application, were especially relevant to the question of whether the relationship between the applicant and the sponsor was a genuine spousal relationship. The Tribunal did not err by taking them into account.
As those text messages were relevant, it was appropriate that the Tribunal take the other ones it cited into account in order to gain a more complete understanding of the parties’ relationship.
The text messages were also relevant to the applicant’s credit, the Tribunal noting at para.47 of its reasons that they contradicted some of his evidence.
Once it is concluded that the Tribunal did not err by taking the text messages into account, the question which remains is whether the conclusions it drew from them were lawfully open to it. I find that they were and not of a sort which no reasonable tribunal would have reached. Consequently, they were not erroneous in the relevant sense so the Tribunal’s decision was not affected by jurisdictional error on that account.
Conclusion
Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Cameron
Associate:
Date: 24 February 2015
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Procedural Fairness
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Jurisdiction
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Natural Justice
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Statutory Construction
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