SINGH v Minister for Immigration
[2019] FCCA 534
•21 March 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 534 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – Partner (Temporary) (class UK) (subclass 820) visa – Partner (Residence) (class BS) (subclass 801) visa – application dismissed. |
| Legislation: Migration Act 1958 (Cth) |
| Cases cited: ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; 250 FCR 109; 154 ALD 221 Hossain v Minister for Immigration and Border Protection [2018] HCA 34 |
| Applicant: | LAKHVIR SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 584 of 2017 |
| Judgment of: | Judge Mercuri |
| Hearing date: | 5 September 2018 |
| Date of Last Submission: | 5 September 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 21 March 2019 |
REPRESENTATION
| Counsel for the applicant: | Mr Jassar |
| Solicitors for the applicant: | Maganty Lawyers |
| Counsel for the respondents: | Mr Chaile |
| Solicitors for the respondents: | Australian Government Solicitor |
ORDERS
The applicant’s application for judicial review filed on 23 March 2017 and amended on 30 November 2017 be dismissed.
The applicant pay the first respondent’s costs in a sum to be fixed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG584 of 2017
| LAKHVIR 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 review of a decision of the Administrative Appeals Tribunal (“the tribunal”) made on 28 February 2017. By that decision the tribunal affirmed a decision of a delegate of the first respondent, to refuse the applicant’s application for a Partner (Residence) (class BS) (subclass 801) visa and Partner (Temporary) (class UK) (subclass 820) visa.
On 23 March 2017, the applicant filed an application for judicial review of the tribunal’s decision. Pursuant to orders made by Registrar Caporale on 27 September 2017, the applicant filed an amended application on
30 November 2017.
The applicant’s claims
The applicant arrived in Australia on 31 July 2009 as the dependant of his then spouse, who had been granted a Student (subclass 572) visa (“student visa”).[1]
[1] Court book page 14.
On 7 July 2012, after the applicant’s divorce from his then spouse, the applicant married his sponsor.[2] On or about 18 July 2012, the applicant applied for a Partner (Temporary) (class UK) (subclass 820) visa (“partner visa”) and for a Partner (Residence) (subclass 801) visa.[3]
[2] Court book page 15.
[3] Court book pages 11 to 149.
On 30 October 2012, the applicant’s dependant student visa was cancelled and the applicant was granted a bridging visa pending determination of his partner visa application.
On 21 January 2014, the Department of Immigration and Border Protection requested further information from the applicant about his relationship with his sponsor.[4] The applicant provided that further information on 4 March 2014 through his migration agent.[5]
[4] Court book page 150.
[5] Court book pages 160 to 192.
The delegate of the Minister refused the applicant’s application for a partner visa on 26 October 2015.[6]
[6] Court book pages 194 to 221.
On 13 November 2015, the applicant applied to the tribunal for review of the delegate’s decision.[7]
[7] Court book pages 22 to 223.
On 1 December 2015, the tribunal invited the applicant to provide further information about the circumstances of his relationship with the sponsor and requested that such further information be provided by
15 December 2015.[8] On 14 December 2015, the applicant’s representative sent the tribunal submissions and various statutory declarations and requested additional time to provide further information.[9][8] Court book pages 228 to 232.
[9] Court book pages 233 to 243.
By email on 15 December 2015, the applicant’s representative again sought an extension of time “to provide further documents as per our submission send (sic) to you yesterday…”[10]
[10] Court book page 244.
By letter dated 20 December 2016, the applicant was invited to attend a hearing before the tribunal on 15 February 2017.[11] The applicant submitted a statutory declaration from the sponsor declared on
14 January 2017.[12] The applicant also attended the hearing on15 February 2017 assisted by his representative and an interpreter in the English and Punjabi language. Evidence was also taken from the applicant’s sponsor.[13][11] Court book pages 246 to 248.
[12] Court book pages 249 to 250.
[13] Court book page 251.
The applicant, via his representative, filed a post hearing submission on 17 February 2017.[14]
[14] Court book pages 255 to 259.
The tribunal’s reasons
On 28 February 2017, the tribunal affirmed the decision of the delegate to refuse the applicant the visa he sought.
In its reasons, the tribunal:
a)identified that regulation 820.211 and 820.221 of schedule 2 of the Migration Regulations 1994 (Cth) (“the Regulations”) require, as a condition to the grant of a visa, that the applicant relevantly be the spouse of an Australian citizen or Australian permanent resident at the time that the visa application is made and at the time of the tribunal’s decision.[15]
b)recognised that the concept of ‘spouse’ is defined in section 5F(1) of the Migration Act 1958 (Cth) (“the Act”) as a person in a “married relationship” with another.[16]
c)observed that persons are in a married relationship where:
i)they are married to each other under a marriage that is valid for the purposes of the Act; and
ii)they have a mutual commitment to a shared life as a married couple to the exclusion of all others, the relationship between them is genuine and continuing and they live together or do not live separately or apart on a permanent basis.[17]
d)noted that in forming an opinion as to whether persons are in a married relationship, regard was to be had to all of the circumstances of the relationship as set out in regulation 1.15A(3) of the Regulations.[18]
e)found that the parties were married to each other under a marriage that is valid for the purposes of section 5F(2)(a) of the Act.
[15] Court book page 264 at paragraph [8].
[16] Court book page 264 at paragraph [9].
[17] Court book page 264 at paragraph [9].
[18] Court book page 264 at paragraph [9].
Having concluded that the parties were married to each other under a valid marriage, the tribunal had to determine whether the criteria under section 5F(2) of the Act (and set out in paragraph 14.c)ii) above) had been satisfied, by reference to the following matters:
a)financial aspects of the relationship between the parties;
b)the nature of the household;
c)the social aspects of the relationship; and
d)the nature of the parties’ commitment to each other.
The tribunal considered each of these matters. The tribunal’s findings in relation to each of these matters is aptly summarised at paragraphs 11 to 13 of the Minister’s written submissions. I do not propose to set those matters out in detail, but I have had regard to them and consider those paragraphs to be a fair summary of the tribunal’s reasons.
At paragraphs 27 and 30 to 31 of the tribunal’s reasons, it found that the evidence did not allay its concerns about household factors. In particular, it was concerned because there was “little evidence of and third party corroboration about the existence of a household”[19] particularly as the evidence that was led was “general” and lacked “specific detail and support”.[20]
[19] Court book page 267 at paragraph [30].
[20] Court book page 267 at paragraph [31].
The tribunal was not satisfied that the parties had represented themselves to their families and their friends as being married to each other or that they have undertaken relevant social activities.[21]
[21] Court book page 268 at paragraph [44].
The tribunal found that there was insufficient evidence regarding the parties’ commitment to each other.[22]
[22] Court book page 269 at paragraph [57].
Based on its findings, the tribunal held that the applicant had failed to satisfy it that he was in a married relationship with his sponsor within the meaning of section 5F of the Act.[23]
[23] Court book page 270 at paragraph [58].
Legislative provisions
Section 31(1) of the Act prescribes certain classes of visas, and section 31(2) provides that the Regulations may prescribe the criteria for visas of a specified class.
Section 65 of the Act then relevantly provides that if satisfied with the criteria prescribed by the Act or Regulations, the Minister is to grant the visa, or, if not so satisfied, refuse to grant the visa.
Regulation 2.01(1) provides that the prescribed classes of visas include the classes set out in Schedule 1, which include a Temporary Partner visa and a Residence Partner visa.
Under Regulation 2.02(2) and 2.03(1), the prescribed criteria includes the primary criteria and any secondary criteria set out in Schedule 2 referrable to the relevant visa.
As stated, the applicant was required to satisfy the tribunal that he was the “spouse of an Australian citizen or Australian permanent resident” under clauses 820.211 and 820.221 of schedule 2 of the Regulations. Section 5F(1) of the Act defines a spouse of another to be someone who is in a married relationship with another person. A person is in a ‘married relationship’ if they satisfy the definition of section 5F(2) of the Act which relevantly provides:
(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 a married couple to the exclusion of all other; 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.
In determining whether persons were in a “married relationship” under section 5F(2) of the Act, the tribunal is required to consider all of the circumstances of the relationship set out in regulation 1.15A(3) of the Regulations which provides:
(3) The matters for sub-regulation (2) are:
(a) the financial aspects of the relationship, including:
(i) any joint ownership of real estate or other major assets; and
(ii) any joint liabilities; and
(iii) the extent of any pooling of financial resources, especially in relation to major financial commitments; and
(iv) whether one person in the relationship owes any legal obligation in respect of the other; and
(v) the basis of any sharing of day-to-day household expenses; and
(b) the nature of the household, including:
(i) any joint responsibility for the care and support of children; and
(ii) the living arrangements of the persons; and
(iii) any sharing of the responsibility for housework; and
(c) the social aspects of the relationship, including:
(i) whether the persons represent themselves to other people as being married to each other; and
(ii) the opinion of the persons' friends and acquaintances about the nature of the relationship; and
(iii) any basis on which the persons plan and undertake joint social activities; and
(d) the nature of the persons' commitment to each other, including:
(i) the duration of the relationship; and
(ii) the length of time during which the persons have lived together; and
(iii) the degree of companionship and emotional support that the persons draw from each other; and
(iv) whether the persons see the relationship as a long-term one.
Grounds of review
In the applicant’s amended application filed 30 November 2017, the applicant sets out seven paragraphs under the heading ‘Background’, none of which identify any ground of review but rather recite some of the background to the tribunal’s decision consistent with the information set out above and summarise the tribunal’s decision.
At paragraph 8 entitled ‘Grounds’, the applicant says:
Having regard to the matters outlined above, the Tribunal’s decision is affected by jurisdictional error, which may be explained in one or more ways including as described below (which descriptions are not exclusive, and are not intended to be exhaustive).[24]
[24] Applicant’s amended application filed 30 November 2017.
The applicant then sets out under the heading ‘Particulars’, the three grounds which were subsequently dealt with in the applicant’s written submissions and which were pressed at the hearing in this matter. Those three grounds are set out in full below but essentially fall under the following headings:
a)“First, the Tribunal engaged in irrational reasoning”;
b)“…third party corroboration as to existence of a household”; and
c)“The Tribunal failed to identify a dispositive issue to the applicant.”[25]
[25] Applicant’s amended application filed 30 November 2017.
I will deal with each of these in turn.
Ground one
The first ground of review is:
The tribunal engaged in irrational reasoning, including by making inconsistent findings.
(a)As relevant to ‘financial aspects’ the tribunal accepted the applicant’s and wife’s evidence which was to the effect that they had lived together since March 2012, and found that they lived together in the home of the Wife’s son (as relevant to ‘financial aspects). However, as relevant to ‘Nature of the household’, the Tribunal was not satisfied that the applicant and the wife shared a household as a married couple at the time of application (18 July 2012) and decision (28 February 2017).
(b)Furthermore, the Tribunal found that the applicant and his Wife had ‘described their living arrangements in some detail, along with certain household and regular tasks at home, such as housework, and how they support one another. However, the Tribunal then found that ‘the parties’ had given ‘very limited descriptions’ of their household; that there is ‘little evidence … about the existence of a household’; ‘[t]hat which exists is general, and generic’.
(c)Furthermore, the tribunal described the Wife as a ‘party’ when she is in fact had no status in the Tribunal review otherwise than as a witness who gave sworn evidence), and stated that there was ‘little evidence and third party corroboration about the existence of a household’. However, the evidence of the witness Wife (who said she lived with the applicant and gave detailed evidence about the household) was corroborating of the applicant’s claims and evidence. So too was the evidence of the Wife’s son (who said the applicant and the Wife lived at his house).[26]
[26] Applicant’s amended application filed 30 November 2017.
This first ground relies upon the applicant’s contention that the tribunal’s reasoning was so illogical or irrational that it was affected by jurisdictional error.
Before turning to consider this ground, the Full Court of the Federal Court in He v Minister for Immigration and Border Protection [2017] FCAFC 206; 255 FCR 41; 161 ALD 17 (“He”) considered these very provisions.
As noted in He:
Section 5F of the Act gives the word ‘spouse’ a narrower definition than its ordinary meaning by imposing the four conditions that are required to be satisfied. The definition seems designed principally to avoid sham or contrived marriages being used to obtain the grant of visas. The conditions that the persons must have a mutual commitment to a shared life as husband and wife to the exclusion of all other and that the relationship be genuine and continuing are impressionistic and evaluative … the presence or absence of any particular circumstance in a marriage does not necessarily mean that the marriage is or is not genuine. However, reg 1.15A(3) sets out particular circumstances that the Minister is required to consider, presumably on the basis that these circumstances are considered to be of particular relevance or significance to determining whether a marriage satisfies the conditions set out in s 5F(2) of the Act.[27]
[27] He v Minister for Immigration and Border Protection [2017] FCAFC 206; 255 FCR 41; 161 ALD 17 at [51].
The applicant also relies on this decision in support of the argument that it is not sufficient for the tribunal to refer to the matters in
regulation 1.15A(3). What is required is that the tribunal give those matters proper, genuine and realistic consideration. The Full Court noted in He that:
The matters set out in reg 1.15A(3) are relevant considerations which the decision-maker is bound to consider … This requires a decision-maker to bring an active intellectual process to each of those matters … In other words, the decision-maker must actively think about each such matter. Further the term ‘consider’ imports and obligation to give proper, genuine and realistic consideration to the relevant matters…[28]
[28] He v Minister for Immigration and Border Protection [2017] FCAFC 206; 255 FCR 41; 161 ALD 17 at [52].
It was submitted by the applicant that the tribunal did not ‘consider’ the matters in regulation 1.15A(3) of the Regulations in this sense and that this is evident from the inconsistencies in the tribunal’s reasons.
In ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; 250 FCR 109; 154 ALD 221 (“ARG15”), the
Full Court of the Federal Court (Griffiths, Perry and Bromwich JJ) referred to the case of Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611; 84 ALJR 369; 266 ALR 367; 115 ALD 248 (“SZMDS”) and relevantly noted:
… that case related to a judicial review challenge to a decision of the Tribunal which dismissed a review application in respect of an unsuccessful application for a protection visa… Justices Crennan and Bell held at [130] that illogicality or irrationality may constitute a basis for judicial review in respect of the Tribunal’s decision concerning the state of satisfaction required under s 65, but their Honours emphasised that not every lapse in logic would give rise to jurisdictional error and the Court should be slow, although not unwilling, to interfere in an appropriate case. They added at [131] that it was insufficient that different minds might reach different conclusions on the jurisdictional fact and that the test for illogicality or irrationality:
‘… must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different process of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because on conclusion has been preferred to another possible conclusion.’[29]
[29] ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; 250 FCR 109; 154 ALD 221 at [44].
The Full Court of the Federal Court went on to note that cases after SZMDS:
…have established that, for a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reason, ‘extreme’ illogicality or irrationality must be shown ‘measured against the standard that it is not enough for the question of fact to be on one which reasonable minds may come to different conclusions and against the framework of the inquiry being as to whether or not there has been jurisdictional error on the part of the Tribunal” …[30]
[30] ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; 250 FCR 109; 154 ALD 221 at [47].
It was submitted by counsel for the applicant that the use of the descriptor ‘extreme’ is not to be taken as requiring that the court conclude that there are ‘exceptional’ circumstances, but rather something less than exceptional circumstances. It was proffered that if this is what was intended, the court would have used the word “exceptional”.[31]
[31] Transcript page 3 at lines 33 to 44.
I am not persuaded by this submission. It is clear from the comments of the High Court in SZMDS and the Full Court of the Federal Court in ARG15 (and quoted above), that the concept of ‘extreme’ illogicality must be assessed against the standard that it is more than a question of fact upon which reasonable minds might differ.
It was further submitted for the applicant that this ground is made out on the basis that:
a)the tribunal’s findings were not open to it on the evidence; and
b)the tribunal engaged in illogical thought processes in reaching its findings.[32]
[32] Transcript page 4 at lines 23 to 39.
The applicant sought to rely upon a transcription of his interview before the tribunal. This was included in the supplementary court book filed by the applicant on 26 June 2018. The Minister was given leave to file an affidavit of Mr Creedon which annexes correspondence between the Minister’s representative and the applicant’s representative in these proceedings. In essence, the applicant concedes that the transcript was not annexed to an affidavit and therefore is not properly before this court. Based on the correspondence between the parties annexed to
Mr Creedon’s affidavit sworn 5 September 2018, the Minister’s representatives only received a copy of the audio of the tribunal interview[33] the day before the hearing. As such, counsel for the Minister argued that they were not in a position to assess the veracity of the transcript when compared to the audio recording. Subject to that submission, the Minister did not object to the court receiving the audio recording.
[33] This information was apparently obtained by the applicant pursuant to Freedom of Information legislation.
The applicant submitted that it was evident from the recording that the applicant and his wife:
…were able to describe their living arrangements within the house and other factors that are relevant to going to regulation 1.15A subsection (3) in relation to the nature of household. Nevertheless, in making the determination that the parties were able to describe all those things and the like, the tribunal then goes into reasonings that I would say are flawed and cannot be used or matters cannot be put unless you have an illogical or irrational methodology of using the materials before the tribunal (sic).[34]
[34] Transcript page 8 at lines 45 to 47; and page 9 at lines 1 to 3.
It was further submitted that the only logical finding open to the tribunal on the evidence before it was that an established household existed between the applicant and his wife, and in reaching a contrary conclusion, the tribunal relied upon “unnecessary evidence”.
For example, it was said that the tribunal erred in having regard to the parties’ telephone records as evidence, which went to the question of whether there was an established household.[35]
[35] Transcript page 9 at lines 20 to 40.
Similar submissions were made in relation to the tribunal’s reliance upon the parties’ joint bank account statements as evidence to determine whether the parties had a joint household.[36]
[36] Transcript page 9 at lines 41 to 47; and page 10 at lines 1 to 45.
Counsel for the applicant further argued that these discrepancies in findings on the evidence before it, were not simply matters of weight, which is properly a matter for the tribunal. Rather, it was submitted that the tribunal made contradictory findings and that these contradictions are evidence of the illogicality and irrationality of its reasons.
The applicant refers to the fact that the tribunal accepted that:
a)the parties had lived together in the wife’s son’s home and the sponsor contributed to the utility bills for both the applicant and herself;
b)the parties had lived together since March 2012;
c)the parties were “not people of means” and “earned modest incomes”; and
d)the parties were able to describe their living arrangements in some detail and tasks undertaken in the home.
Counsel for the applicant argued that it is clear from listening to the transcript that the applicant and his wife were asked about matters relevant to the nature of the household and that their answers were consistent.[37]
[37] Transcript page 11 at lines 11 to 29.
Moreover, it was argued that the tribunal’s conclusion that there was:
…little evidence of the existence of the household…completely negates the evidence before the tribunal of the wife who is not a party to the proceedings and the evidence corroborates the account by the applicant.[38]
[38] Paragraph [48] of the applicant’s written contentions of fact and law filed 20 August 2018.
Moreover, it was submitted that the tribunal also failed to take into account the evidence of the wife’s son and his girlfriend.[39]
[39] Paragraph [49] of the applicant’s written contentions of fact and law filed 20 August 2018.
It was submitted that the evidence before the tribunal could only have led to one conclusion and its failure to reach that conclusion amounts to extreme illogicality or irrationality.
A fair reading of the tribunal’s decision in the sense contemplated by Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259; 70 ALJR 568; 136 ALR 481; 41 ALD 1
(“Wu Shan Liang”) does not support the submissions made by the applicant in this regard.At paragraph 18 of the tribunal’s reasons, the tribunal refers to the fact that joint bank account statements, utilities accounts and the like being addressed to the parties’ common address is evidence that the parties have established a household together. Similarly, the tribunal also noted that the evidence given by the parties at the hearing was consistent and addressed their living arrangements in some detail, some household and regular tasks at home and how they support each other. The tribunal confirms that regard was had to these considerations.[40]
[40] Court book page 265 at paragraph [18].
At paragraph 19 the tribunal simply notes the fact that there are no children of the relationship nor do they care for any dependent children. This as a matter of fact, is not contested.[41]
[41] Court book page 265 at paragraph [19].
Importantly at paragraph 20, the tribunal went on to say:
However, the above documents and information have only limited probative value… the telephone accounts… do not shed great light on a household living arrangement between the parties.[42]
[42] Court book page 266 at paragraph [20].
At paragraph 21, the tribunal noted that the joint bank statement “gives at most a very incomplete picture of a household, and does not show that household is in place.”[43]
[43] Court book page 266 at paragraph [21].
The tribunal then considered the other evidence available to assist in determining the household issue.[44] The tribunal identified the relevant evidence and indicated the weight it would apply to that evidence.
[44] Court book page 266 at paragraphs [22] to [29].
Specifically at paragraph 30, the tribunal noted its concerns about the evidence which went to the question of whether a household was established.[45] It concluded that it was “not satisfied that the parties have shared a household as a married couple at the time of the application and decision”[46] as “there is not strong evidence of household factors”.[47] Relevantly, the tribunal does not say there is no evidence, but says that the evidence which exists is not strong.
[45] Court book page 267 at paragraph [30].
[46] Court book page 267 at paragraph [31].
[47] Court book page 267 at paragraph [32].
I do not accept the applicant’s submissions in support of ground one. As noted above, it is only in cases of extreme illogicality that a court should interfere with findings of fact made by a tribunal. Applying the test in SZMDS, this case does not reach the standard required for a finding of illogicality or irrationality. Based on the evidence before the tribunal, the finding that there was not strong evidence of household factors was reasonably open to the tribunal.
Whilst it may well be that reasonable minds may differ on the conclusion based on the available evidence, as noted above, that is not the test.
The applicant was represented throughout the proceedings by a migration agent. Material was filed and submissions made on the applicant’s behalf addressing the relevant criteria for the granting of the visa. It was open to the tribunal to accept or reject that evidence or to give it such weight as it considered appropriate in the circumstances.[48]
[48] Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 at [27].
The tribunal considered the evidence submitted by or on behalf of the applicant. It was open to the tribunal on the basis of that evidence to conclude, as it did, that there was insufficient evidence to satisfy the existence of an established household. Whether or not another decision-maker based on the same evidence may have come to a different conclusion is not the point.
Ground two
The second ground of review is:
The Tribunal wrongly considered that in order to make favourable findings about the ‘nature of the household’ ‘the living arrangements of the person’ and ‘any sharing of the responsibility for housework’ ‘third-party corroboration about the existence of the household’ (implicitly from persons other than the claimed members of the household) was required.[49]
[49] Applicant’s amended application filed 30 November 2017.
There are two aspects to this ground:
a)firstly, the tribunal made a finding that these criteria were not met because of the absence of corroborating evidence from a person other than a member of the household; and
b)secondly, there could not be any such corroborating evidence because the only people who could have the necessary knowledge were members of the household.
The applicant refers to paragraph 22 of the tribunal’s reasons in which it is said that the:
…tribunal misconceived that there needed to be third party corroboration from individuals that have provided statutory declarations as to the household position of the parties… routines in the household and the parties’ interaction with others.[50]
[50] Paragraph [52] of the applicant’s written contentions of fact and law filed 20 August 2018.
Moreover, it was submitted that the requirement for such evidence is “plainly wrong” and in any event, a person who is not residing as a member of the household would not be able to provide such evidence.[51]
[51] Paragraphs [53] and [54] of the applicant’s contentions of fact and law filed 20 August 2018.
I agree with the Minister’s submission in relation to ground two, namely that this falls at the first hurdle.
A fair reading of the tribunal’s reasons make it clear that the tribunal did not require corroborating evidence as a precondition to making a finding in the applicant’s favour in relation to the question of the household issue.
At paragraph 18 of the tribunal’s reasons, the tribunal made reference to joint bank statements and utilities accounts addressed to the applicant and his wife at their common address and noted that this is “among the evidence to support claims that the parties have established a household together.”[52] The tribunal noted at the end of that paragraph that it considered to this evidence.[53]
[52] Court book page 265 at paragraph [18].
[53] Court book page 265 at paragraph [18].
At paragraph 22 the tribunal considers the evidence of various individuals given in support of the applicant’s application, but noted that these statements were of a general nature and “on the whole are not detailed regarding the household position of the parties.”[54]
[54] Court book page 266 at paragraph [22].
Similarly, at paragraph 25 of its reasons, the tribunal considers the statutory declaration of the wife’s son and notes that it “gives some more detail on the household lives of the parties in that it says they care for one another.”[55] The tribunal gives that regard.
[55] Court book page 266 at paragraph [25].
At paragraph 29 of its reasons, the tribunal refers to photographs which show the parties in what appears to be a home setting and whilst the tribunal states that it has considered those, it does note that they are not “conclusive of the existence of the household.”[56]
[56] Court book page 266 at paragraph [29].
The statement that “there is little evidence of and third-party corroboration about the existence of a household”[57] supports the conclusion reached by the tribunal at paragraph 32 that there is not strong evidence of household factors.[58] A fair reading of the tribunal’s reasons do not support a finding that the tribunal required corroborative evidence before it would make a positive finding on the question of whether the applicant satisfied the criteria relating to household matters.
[57] Court book page 267 at paragraph [30].
[58] Court book page 267 at paragraphs [30] and [32].
Rather, the tribunal assessed all of the evidence before it to determine whether there was an established household between the parties.
For each of these reasons, ground two is not made out.
Ground three
The third ground of review is:
The Tribunal referred to its ‘concerns about household factors’ (which it said the applicant’s ‘descriptions do not satisfactorily allay’ and referred to its ‘overall concern that arose during the hearing’, but failed to identify any such concern to the applicant at the hearing. The Tribunal thereby failed to identify a dispositive issue to the applicant, in contravention of section 360 of the Act.[59]
[59] Applicant’s amended application filed 30 November 2017.
The applicant relied upon the decision in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152; 81 ALJR 515; 231 ALR 592; 93 ALD 300 (“SZBEL”) which it said stands for the proposition that the tribunal is required to notify the appellant of any basis upon which it might dispose of his application.
This ground relies upon the argument that although the tribunal had ‘concerns about household factors’ which are referred to in
paragraph 27 of the decision record and further elaborated on at paragraph 30, the tribunal fell into error by not raising these concerns with the applicant in the course of the hearing. Moreover, it is argued on behalf of the applicant that whilst the tribunal asked the applicant questions about the household issue, they were generic in nature and did not identify any ‘concerns’ the tribunal had.
At paragraph 62 of the applicant’s written contentions of fact and law, it was submitted that to the extent that the tribunal had regard to those matters set out in paragraph 20 to 26 of its reasons as the basis of these concerns, the tribunal relied upon irrelevant material and engaged in improper reasoning.[60]
[60] Applicant’s written contentions of fact and law filed 20 August 2018.
SZBEL does not assist the applicant in this instance. In this case, the delegate’s decision to refuse the visa was on exactly the same basis as the dispositive issues before the tribunal.[61] By comparison, in SZBEL, the Refugee Review Tribunal dismissed the appellant’s application on the basis that it found the evidence not credible. The High Court held that the appellant was denied procedural fairness because the tribunal member failed to afford the appellant sufficient opportunity to make submissions on the question of credibility which was a dispositive issue. This was on the basis that absent any comment from the tribunal member, the appellant was entitled to proceed on the basis that the determinative issues were those that had arisen from the delegate’s decision.[62]
[61] Court book pages 198 to 202.
[62] SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152; 81 ALJR 515; 231 ALR 592; 93 ALD 300 at [43].
SZBEL
does not stand for the proposition that a decision maker is required to inform a party where he or she has concerns about whether the available evidence is sufficient to satisfy an express statutory criterion. The High Court cited with approval the following observations of Lord Diplock in F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295, [1974] 2 All ER 1128, [1974]
3 WLR 104:
The rules of natural justice do not require the decision maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision. If this were a rule of natural justice only he most talkative of judges would satisfy it and trial by jury would have to be abolished.[63]
[63] SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152; 81 ALJR 515; 231 ALR 592; 93 ALD 300 at [48].
Moreover, the High Court expressly said:
…procedural fairness does not require the tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given’ because this ‘would be likely to run a serious risk of conveying an impression of prejudgment.’[64]
[64] SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152; 81 ALJR 515; 231 ALR 592; 93 ALD 300 at [48].
For each of these reasons ground three is not made out.
For completeness, I also note that counsel for the Minister argued that even if the court were to find that one of the grounds of error raised by the applicant were made out, the relief sought ought to be refused on the basis that the errors alleged are not jurisdictional and do not vitiate the tribunal’s decision.[65]
[65] Hossain v Minister for Immigration and Border Protection [2018] HCA 34.
Given the conclusions I have reached above, it is not necessary for me to consider this submission further.
Conclusion
As none of the applicant’s grounds have been made out, the application should be dismissed with costs.
I certify that the preceding eighty-seven (87) paragraphs are a true copy of the reasons for judgment of Judge Mercuri
Date: 21 March 2019
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Standing
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