Singh v Minister for Immigration
[2018] FCCA 2937
•18 October 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2937 |
| Catchwords: MIGRATION – Application for judicial review – partner visa – no matters of principle – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.65, 376 |
| Cases cited: He v The Minister for Immigration and Border Protection (2017) FCAFC 206 |
| Applicant: | AMANDEEP SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1632 of 2015 |
| Judgment of: | Judge Riethmuller |
| Hearing date: | 28 August 2018 |
| Date of Last Submission: | 28 August 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 18 October 2018 |
REPRESENTATION
| The Applicant appeared In Person |
| Counsel for the First Respondent: | Ms Symons |
| Solicitors for the First Respondent: | DLA Piper Australia |
ORDERS
The application be dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $4,534.00
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1632 of 2015
| AMANDEEP SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for judicial review of a decision of the Migration Review Tribunal (‘the Tribunal’), as it was then known, dated 26 June 2015. That decision affirmed the decision of a delegate to the Minister not to grant the Applicant a Partner (Residence) (Class BS) visa.
On 24 July 2014, the delegate refused to grant the visa on the basis that the applicant did not satisfy cl.801.221(2) of the Migration Regulations 1994 as the applicant was not the spouse or de facto partner of the sponsoring partner.
The delegate was not satisfied that ‘there is the degree of depth and commitment to each other that is required, in order to satisfy the definition of a spouse as set out at Migration Regulation 1.15A.’ Rather the delegate found that the applicant had ‘entered into a contrived relationship for the purpose of migration only and your sponsor’s withdrawal of her sponsorship does not support your claims to a shared life together as husband and wife’: see delegate’s decision at Court Book (‘CB’) p.433.
On 5 August 2014, the applicant applied to the Tribunal for review of the delegate’s decision. The applicant appeared before the Tribunal to give evidence and present arguments. On 16 July 2015, the applicant applied to this Court for judicial review.
Application for Reinstatement
The application was listed on 22 June 2018 with the applicant granted leave to appear by telephone as he was in India. The Court was not able to contact the applicant by telephone on the number provided and the application was dismissed. On 18 July 2018 the applicant filed an application to reinstate which was listed to 26 July 2018, with the applicant again permitted to attend by telephone. On 24 July 2018 orders were made by consent, that paragraph 1 of the orders of 22 June 2018 be set aside and the matter proceed to final hearing. Given the arrangements made for the applicant to attend by telephone and to avoid delay, the parties were advised the final hearing of the matter would take place on 26 July 2018. Accordingly, the matter came before me as an application for judicial review.
Background to the Applicant’s Claims
The applicant is a citizen of India who arrived in Australia in 2008 as the holder of a student visa. The applicant claims to be the spouse of an Australian citizen, Ms Maria Nicotra, whom he married on 10 April 2012.
The applicant provided a number of documents to the Department in support of his claims. On 18 July 2014 the Department interviewed the applicant and Ms Nicotra separately. Paragraph 13 of the Tribunal’s decision summarises the issues raised by the delegate following the interviews, namely that the parties are not in a relationship and that the marriage was for migration purposes. Ms Nicotra completed a Statutory Declaration on 18 July 2014 (at CB p.420) stating:
I am not living with Amandeep Singh in the marital home.
I am no longer in a relationship with Amandeep Singh and I am living in a Supported Residential Service housing.
I am going to file for Divorce from Amandeep Singh in 2014.
I am no longer sponsoring and supporting the partner application.
I don’t recall signing the Partner Application Forms.
We had joint bank accounts with the NAB but I do not have any access to the Account as he took the bankcard of me.
The applicant claims the relationship has ended and that he was the victim of family violence perpetrated by the sponsoring partner.
The Tribunal’s decision
The Tribunal outlined the issues before it at [8] as follows:
8. The questions that arise in this case are:
· Whether the applicant and Ms Nicotra were ever in a genuine and continuing relationship, and if so
· Whether the applicant is the victim of family violence committed by Ms Nicotra during the relationship, within the meaning of the Regulations (cl.801.221(3))
The Tribunal considered all the material before the delegate: see [15] to [19].
On 22 December 2014, the applicant’s migration agent provided a psychologist’s report in relation to Ms Nicotra to the Tribunal. The report, prepared on instructions from the applicant, indicated Ms Nicotra suffered from an intellectual disability as a result of an accident when she was a child and she had had several nervous breakdowns since 2009: see [20] and [21]. The psychologist reported Ms Nicotra saying she was ‘confused… angry and frustrated’ during her interview with the department and ‘they forced me to write things I didn’t want to write’: see [22]. The psychologist concluded that:
33. In my opinion it was apparent from interviewing Ms Nicotra that she regards herself as being in a genuine relationship with Mr Singh and she does regard herself as having a genuine marriage to Mr Singh”: see CB p.475.
At the hearing, the applicant provided a number of additional documents to the Tribunal detailed at [25] and [26]. The applicant’s oral evidence to the Tribunal is set out at [29] to [40] of the decision.
In considering whether Ms Nicotra was the spouse of the applicant (in accordance with reg.801.212(2)(c) of the Regulations, the Tribunal had regard to s.5f of the Migration Act 1958 which defines ‘spouse’ as follows:
(1) For the purposes of this Act, a person is the spouse of another person (whether of the same sex or a different sex) 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 a married couple 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.
Note: Section 12 also affects the determination of whether the condition in paragraph (2)(a) of this section exists.
The Tribunal found ‘on the basis of the evidence before [it], the parties were married to each other under a marriage that is valid for the purposes of the Act…’: see [45].
The Tribunal considered the finances of the couple (at [47]) that:
47. …There is evidence that the parties had a joint bank account. There is evidence that the parties lived at the same address in Craigieburn. There is evidence that various associates of the applicant that considered the parties were in a relationship.
However, in considering that evidence the Tribunal states further at [47]:
47.… There is no real indication that the parties pooled their financial resources or shared their day-to-day expenses particular since the State Trustee’s Office administered Ms Nicotra’s financial affairs and the applicant had little knowledge of her accounts or balances.
And further at [48]:
48. … there is no evidence that the parties pooled their financial resources or shared their day to day expenses.
The Tribunal considered the evidence in relation to the applicant and Ms Nicotra’s housing (at [51] – [54]) and accepted that ‘the applicant and Ms Nicotra have shared a household at various times’: see [54].
The Tribunal considered photographs and statutory declarations from the applicant’s friends at [55] to [58]. However, the Tribunal considered the photographs did not provide any convincing evidence. At [59] the Tribunal states:
59. The Tribunal notes that the statutory declarations submitted with respect to the relationship at all from friends of the applicant. There are no statutory declarations from any person known to
Ms Nicotra at any time prior to meeting the applicant. There are no statutory declarations from State Trustees or from Ms Nicotra’s case workers in relation to their knowledge of the relationship and any interactions that they have had with the applicant, if at all. The Tribunal places significant weight on this absence of evidence as it tends to indicate that the parties have not represented themselves as being in a genuine relationship to any friend, colleague, associate or family member of Ms Nicotra.
At [61] the Tribunal states:
61. Having considered all the evidence before the Tribunal, there is little information which would support any claim that the parties provided a degree of companionship and emotional support to each other which would be expected in a genuine relationship.
The Tribunal considered the applicant’s evidence in relation to the department interview with Ms Nicotra. In relation to the psychologist report, the ‘Tribunal [had] regard to the fact that, on his own evidence it was the applicant through his migration agent who arranged for Ms Nicotra to see a psychologist to tell them what happened at the Department. The Tribunal … also had regard to the fact that the applicant accompanied her to the consultation with [the psychologist] and was interviewed in her presence at one stage’: see [63]. The Tribunal did not accept that Ms Nicotra was lying to the Department during the interview: see [65].
Ultimately after considering all the information ‘individually and cumulatively’, the Tribunal ‘was not satisfied that the parties were ever in a genuine and continuing relationship’ and accordingly the applicant did not meet cl.801.221(2)(c): see [67] and [68].
The Tribunal noted the applicant had made a claim of family violence under cl.802.221(6)(c)(i) of the Regulations. The Tribunal noted that given its finding that the parties were not in a genuine relationship, the question of whether the applicant had been a victim of family violence was not required to be considered. However, the Tribunal nonetheless went on to consider the applicant’s evidence with respect to this claim at [70] – [82].
The Tribunal found that the applicant’s statutory declarations submitted did not comply with the Regulations and therefore ‘a non-judicially determined claim of family violence has not been made under reg.1.23’: see [77]. The Tribunal further found that the interim intervention order that the applicant had against Ms Nicotra was made in the absence of Ms Nicotra. Therefore, judicially determined family violence under reg.1.13 was not taken to have been found: see [82].
The Tribunal affirmed the decision not to grant the partner visa.
Grounds of the Application
The applicant raises the following three grounds for judicial review:
1. The Tribunal erred in law in [failing] to provide [a] full opportunity of hearing to the applicant.
2. The decision of the Tribunal suffers from jurisdictional error.
3. The Tribunal acted in haste in deciding the application and refused to examine evidence presented by the applicant.
I note that there are three general claims: failure to hear; failure to consider evidence; and general error. The applicant’s arguments were not structured around the grounds. I will therefore deal with the arguments raised by the applicant and the other issues that were identified at the hearing under the general grounds that appear most relevant.
The applicant has filed three Affidavits in these proceedings. The Affidavit filed 16 July 2015 (at the time of application) annexed the Tribunal’s decision.
A further Affidavit was filed on 20 January 2016 that contains:
a)a Statutory Declaration by the applicant dated 20 January 2016;
b)a letter from the applicant’s accountant dated 15 December 2015 indicating his belief the parties were ‘emotionally and financially attached’;
c)a large number of screen shots of text messages which appear to be between the applicant and Ms Nicotra;
d)a letter from the Coordinator of Bethlehem Community dated 13 January 2016;
e)a 5 page handwritten letter signed ‘Maria’, with passages highlighted;
f)3 pages of handwritten notes from a January 2013 diary;
g)a large number of photographs which appear to be celebrations/holidays;
h)a letter from Little Real Estate dated 12 January 2016 together with a Tenant detail ledger and a Residential Tenancy Agreement dated 13 August 2014;
i)a letter from Dr Richard Wise, Psychologist dated 18 January 2016;
j)a list of contents detailing possessions with handwritten notes;
k)A statutory declaration of Jason Robertson, undated
l)A statutory declaration of Sharon Martin, dated 20 January 2016;
m)A statutory declaration of John Patrick O’Neil dated 16 January 2016;
n)A statutory declaration of Johnny Attard dated 18 January 2016;
o)A screen shot of a text message from ‘Maria Wife’;
p)A statutory declaration of Syed Wasif Jawed dated 1 June 2015
q)A statutory declaration of Gurmit Singh dated 5 June 2015
r)A statutory declaration of Jocelyn Bacusmo dated 2 June 2015
s)A statutory declaration of Pallav Jain dated 3 June 2015;
t)A statutory declaration of Madline Jain dated 3 June 2015;
u)A statutory declaration of Vineetha Smarakoon dated 21 June 2015;
v)A joint statutory declaration of Kalika Jain and Pallav Jain dated 21 June 2015;
w)A two page handwritten letter from the applicant to ‘AFP Officer’, undated;
x)A GP Mental Health Treatment Plan for the applicant, dated 14 January 2016;
y)A document titled ‘Statutory Declaration’ by the applicant, unsworn and undated; and
z)A letter from the Women’s Legal Service Victoria dated 18 January 2016 addressed to the applicant.
I note that documents (a), (b), (d), (h), (i), (l)-(n), (x) and (z) all post-date the Tribunal’s decision. The documents (u) and (v) were before the Tribunal (see CB pp.575 and 577) and addressed by the Tribunal at [40]. Whilst the photos reproduced in the Court Book are not legible, there appears to be significantly more photos in the Affidavit than the Court Book. All of the other documents do not appear to be in the Court Book.
The applicant filed a further Affidavit on 29 November 2016. That Affidavit included a Statutory Declaration of Psychologist Richard Wise dated 23 November 2016, a letter from Dr Wise dated 1 April 2016, the GP Mental Health Treatment Plan for the applicant dated 14 January 2016 (same document as previous affidavit (x) with p.4 missing), and a medical certificate for the applicant from Epping Clinic signed and dated 23 November 2016.
In addition on 18 October 2017, the applicant filed written submissions.
The Minister raises two additional issues in their submissions. First, this matter involved a certificate being issued under s.376 of the Act which was not disclosed to the Applicant. The Minister contends the denial of the Tribunal to disclose the documents to the Applicant in this case is not a denial of procedural fairness. Secondly, the Minister raises the possible application of the decision in He v Minister for Immigration and Border Protection [2017] FCAFC 206 where the Full Court determined the Tribunal must have regard to all the prescribed circumstances under reg.1.15a(3) of the Regulations.
These issues are conveniently dealt with under the general claim of jurisdictional error in ground 2 of the applicant’s application.
Grounds 1 and 3
It is not open to this court to review the merits of a decision in judicial review proceedings. To the extent that the applicant seeks a review of the merits (and attempts to rely upon the affidavit evidence for this purpose) the application must be refused.
Argument One
In oral submissions, the applicant claimed that there was significant evidence not considered by the Tribunal providing, as an example, the statutory declaration Mr Samarakoon at CB p.577. This material appears to have been considered by the Tribunal who explained in [40]:
40. The Tribunal notes that additional witnesses were made available to give evidence to the Tribunal: a friend of the applicant Guirmi Singh, close friends of the applicant Pallav Jain and Kalika Jain, the applicant’s brother in law Amanpreet Singh, and the applicant’s friend Vineetha S Samarakoone Mudryanselage. With the exception of Guirmi Singh, all the witnesses had submitted signed statutory declarations at the hearing. The applicant told the Tribunal that they proposed to give evidence as to the genuineness of the relationship and their evidence was contained in their statutory declarations. For this reason with the consent of the applicant, the Tribunal determined not to hear from them orally. In relation to Mr Guirmi Singh, the applicant told the Tribunal that he had only met Ms Nicotra on one or two occasions and had not spent any time with her or them as a couple. After an exchange between the Presiding Member and the applicant, it was decided that the applicant would not give oral evidence.
It is clear that this was not a merely cursory or formal acknowledgement of the material, as later in the decision the Tribunal refers to placing some weight upon the statutory declarations, at [58] where it said:
58. The Tribunal places some weight on the statutory declaration provided by Kalika and Pallav Jain that the applicant and Ms Nicotra were a “loving and ideal couple” and they often visit them.
As to the other documents provided by the applicant, these are acknowledged by the Tribunal in [25] of its decision.
Argument Two
The applicant complained about the dot points in paragraph [13] of the decision, which were in the following terms:
·Despite claiming in the statutory declaration dated 14 May 2012 that bills and finances are shared, Ms Nicotra told the Department that the documentation that has been provided has been “a set up for residency purposes”;
·Ms Nicotra’s admission that she has not been living with the applicant since 8 July 2014 as she was living at Reservoir Gardens. Ms Nicotra said that she was on the verge of a nervous breakdown and made a decision to re-enter the centre for support;
·The misleading information given by the applicant to the officer at the interview that Ms Nicotra was living with him at the rental premises in Craigieburn;
·There is no evidence of social interaction with friends and family nor is there any substantial evidence that the applicant and Ms Nicotra present themselves to be a couple;
·Ms Nicotra told the officer at the interview that she met the applicant on New Years’ Eve watching the fireworks. This is inconsistent with information provided in the Form 47SP that the applicant and Ms Nicotra met on 1 January 2011 at the Melbourne Theatre;
·Ms Nicotra told the officer at the interview that the applicant had told her that he had only married her for migration purposes;
·Ms Nicotra showed the officer at the interview her mobile phone which included text messages from the applicant stating the names of his parents, his name and what to say at the interview;
·Ms Nicotra has withdrawn her sponsorship and told the officer at the Department that the relationship was contrived and she was not aware that the applicant had filed a partner application. Ms Nicotra also said that she had no knowledge of signing the partner application form and was not aware that the applicant had applied for another visa which had been refused; and
·The applicant provided false and misleading information that he and the applicant were not living separately and apart.
It appeared that the applicant had read [13] as being findings of the Tribunal, rather than a recounting of the findings before the delegate prior to the Tribunal considering the matter for itself.
Argument Three
In the applicant’s written submissions, the applicant alleged at [28] that the Tribunal had:
28. Placed little weight and failed to turn its mind to the fact that the sponsor had an acquired brain injury and was prone to severe mental health episodes.
This was expanded into a variation of the submission at [29] and [30] of the outline, where the applicant said:
29. The evidence before the Tribunal was that she was on anti-depressants, had low level intelligence, required mood stabilizers and she suffered from frontal lobe brain damage. Yet oddly when she suffered these manifestations, it was assumed this somehow meant that the Applicant and Sponsor were not in a genuine relationships and the marriage was a fraud.
30. It seems the MRT jumped to the erroneous conclusion that a mentally unwell person cannot be in a genuine relationship. However this fails to take into account the situation faced by the Applicant.
When one reads the decision as a whole, it is apparent that the Tribunal were clearly aware that Ms Nicotra had suffered an acquired brain injury and was labouring under an intellectual or mental health difficulty, with her financial affairs being managed by the public trustee. Indeed, this appears to have been the basis for which the Tribunal concluded that. The Tribunal recounts in some detail the findings of the psychologist, and after much discussion, makes conclusions about the versions of events that it accepts from Ms Nicotra. This demonstrates that the Tribunal was well aware of the difficulties on a factual level that this case presented, when carefully considering the decision that they would make.
At [29] and [30] of the applicant’s submissions (above), the argument changes course to allege that the Tribunal assumed that the difficulties confronting Ms Nicotra meant that she could not be in a genuine relationship. If this were the case, the Tribunal did not specifically say it, nor is it consistent with the extensive discussion that the Tribunal undertakes as to various aspects of the household and the lives of the parties together. On reading the decision as a whole, it is quite clear that the Tribunal took the view that a relationship was possible and it was necessary to carefully examine the detail of it to determine whether or not a spousal relationship had, in fact, existed in this particular case.
At [32] of the applicant’s submissions, the applicant says that the Tribunal failed to place weight on the fact that his parents came twice from India to visit him and Ms Nicotra. The Tribunal mentioned the applicant’s parents making visits in [30], [33] and [56]. Indeed, at [56], the Tribunal concludes that it is appropriate for it to place ‘some weight on this fact’. Given the limited significance of his parents visiting from India, I am not persuaded that a more detailed discussion of this particular fact was required by the Tribunal in their decision.
Argument Four
The fourth matter raised in the applicant’s written submission was a claim (at [34]) that the Tribunal failed to have regard to an explanation he gave about the content of bank statements. A number of bank statements that were provided by the applicant to support his case, contained written annotations by him describing the various expenses categories, such as groceries, shopping, sweet shop, general family, rent, etcetera. These bank statements were expressly considered at [48] of the Tribunal decision, however did not persuade the Tribunal that they evidenced a pooling of the financial resources of the parties nor showed a general sharing of day-to-day expenses. The Tribunal appears to have had regard to the statements and drawn what inferences it felt were appropriate from them.
Argument Five
The fifth matter raised in the submissions (at [36] of the submissions) is an error that appears at [5] of the Tribunal’s decision where the Tribunal says:
The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
This indicates that the Tribunal may have been contemplating a different case, as this case did not involve anybody who spoke Vietnamese. However, it might also indicate the use of a template for initial matters in a decision, that are commonly used to set out the background, or, indeed, it may simply be an error by the Tribunal member. An error of this type must be considered in the context of the decision as a whole. It is absolutely clear, from [7] to the end where all of the evidence and substantive issues are discussed, that the decision deals with the facts and circumstances of this case in a way that could not be considered to be some form of copy or replication of another decision. The facts in this case are particularly unusual, and there is considerable detail the Tribunal is grappling with including the difficulties of making findings of fact in a case of this type. Whilst it is an unfortunate error in wrongly naming the language in [5], it appears to me that this is not indicative, in the circumstances of this case, of the Tribunal not properly considering the actual facts and circumstances that were before it on the substantive issues.
Argument Six
The sixth matter that was raised was a claim at [40] of the submissions that there was no evidence that the marriage was a sham or a fraud. The Tribunal accepted at [45] of its reasons that there was a valid marriage. The applicant appears to be confusing the requirement to consider the nature of the relationship as spouses, not simply whether or not the formalities of a marriage had been entered into by the parties. The thrust of the Regulations is not focused upon the legal formalism of marriage, but the nature of the underlying relationship between two people, whether they are in a marriage or a de facto marriage relationship.
In the circumstances, I am not persuaded that the applicant has made out an error in law of failing to provide an opportunity of a hearing, given the extensive material that was placed before the Tribunal, the hearing that took place and the extensive reasons.
To the extent that this is an argument by the applicant under ground 3, that ‘The Tribunal acted in haste in deciding the application and refused to examine the evidence presented by the applicant’ the ground is not made out.
The arguments identified above go to the question of whether or not the Tribunal considered the evidence. I have found none of them persuasive in the claim that the Tribunal had failed or refused to examine the evidence. The one matter that was raised which shows an error by the Tribunal was simply the name of the language for an interpreter, which, in the context of this case, does not appear to me to indicate a failure by the Tribunal to consider the case genuinely and on its merits.
Other possible grounds
Ground 2 is simply, in general terms, claiming a jurisdictional error. There are no further particulars in the applicant’s outline in this regard. However, a number of other possible errors were identified at the hearing before me, which I now turn to deal with under this ground.
Issue 1
At the oral hearing before me, the applicant stated that, whilst the Tribunal concluded he did not have sufficient evidence of photos of the parties together or at social occasions (at [55]), the applicant claims that he said to the Tribunal that he would send more photographs but was not given an opportunity to do so.
There is no transcript of the Tribunal hearing before me to evidence such an arrangement, nor any emails or other correspondence with the Tribunal.
In the absence of evidence of some arrangements with the Tribunal, I am not persuaded that the Tribunal provided the applicant with some form of opportunity to provide more material, nor that they denied such an opportunity when requested.
Issue 2
The applicant claimed that he did not have an opportunity to put in documents that are in his affidavit. The applicant had a reasonable opportunity to put material to the Tribunal, and indeed, extensive material was placed before the Tribunal. There is no evidence that the applicant was denied an opportunity to place relevant material before the Tribunal. The submissions have an air of a complaint of a person who, having been unsuccessful, now wishes to place more material before the Tribunal that had not been placed before them originally. This does not appear to me be a basis for a finding that the Tribunal committed a judicially reviewable error.
Issue 3
Finally, the applicant made a complaint that he would have liked more time to pursue domestic violence orders against his ex-spouse in order to improve his case under the domestic violence provisions of the visa conditions. There is no evidence of the applicant seeking such an adjournment or more time. It is also the situation that it would not have assisted the applicant, as the Tribunal found against him on the substantive question of whether he had ever been in a relationship of the type contemplated by the provisions.
Issue 4
In this case, the Tribunal had been provided with a certificate pursuant to s.376 of the Act by the department, which is annexed to an affidavit filed on 18 June 2018. The certificate purports to exempt folio 129 from disclosure on the basis that it was given to the Minister or an officer of the department “in confidence”. The document is a screenshot of a computer screen window with the title “Client of Interest Note”, which contains two pieces of information, together with the name of the person who either made the note or was operating the computer (an officer of the department). The first piece of information is a ‘yes’ or ‘no’ answer to the statement ‘client of interest’, which was answered yes. The second piece of information was in a box headed ‘Note’, which provides:
Sponsor has withdrawn application after admitting to not living in a genuine relationship with PA. More notes to follow from interview.
How it could be conceived that this was information given to the department in confidence is difficult to understand. The information is that the sponsor has withdrawn her sponsorship, which was crucial to the applicant’s application. The applicant would inevitably be told that the sponsor had withdrawn their sponsorship. Even this aside, the contents of the note are so innocuous as to appear irrelevant in the context of this case.
The consequence is that the certificate is, in my view, invalid. The question that then arises is whether or not this piece of information could or would have made any difference to the outcome of the proceedings if it were provided to the applicant. The applicant was well aware that the sponsor had withdrawn her sponsorship application, and considerable evidence was addressed to the statements she had made at various times and to the circumstances of this withdrawal. This note adds nothing to any potential case. I am not persuaded that, in these circumstances, it would be appropriate to provide the applicant with relief by way of constitutional writs.
Issue 4
The fourth issue identified by counsel for the Minister is whether or not the Tribunal properly addressed reg.1.15a. That Regulation is in the following terms:
(1) For subsection 5F(3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5F(2)(a), (b), (c) and (d) of the Act exist.
(2) If the Minister is considering an application for:
(a) a Partner (Migrant) (Class BC) visa; or
(b) a Partner (Provisional) (Class UF) visa; or
(c) a Partner (Residence) (Class BS) visa; or
(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, 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.
(4) If the Minister is considering an application for a visa of a class other than a class mentioned in subregulation (2), the Minister may consider any of the circumstances mentioned in subregulation (3).
In He’s Case, the Full Court considered the construction of reg.1.15a and found that a Tribunal was required to make findings on each of the principal matters set out in subsections 1.15a(3)(a)-(d), saying at [73] and following:
[73] Regulation 1.15A(3) itself identifies circumstances of the relationship that the Tribunal must consider. It is prescriptive. It deems each of the prescribed circumstances, or matters, to be relevant to the question of whether there is a married relationship. The Tribunal must at least apply an active intellectual process and give proper, genuine and realistic consideration to each of the prescribed circumstances.
[74] As has been discussed, the structure of reg 1.15A(3) commences with four principal matters (the principal matters) set out in paragraphs (a) to (d) that must be considered, namely:
(a) the financial aspects of the relationship;
(b) the nature of the household;
(c) the social aspects of the relationship; and
(d) the nature of the persons’ commitment to each other.
[75] There are then set out a series of specific matters (numbered with Roman numerals) relevant to the principal matters. So, for example, when considering “(b) the nature of the household”, the Tribunal is expressly required to consider:
(i) any joint responsibility for the care and support of children;
(ii) the living arrangements of the persons; and
(iii) any sharing of the responsibility for housework.
[76] In our opinion, 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 nature of these specific matters is such that each of them poses, in effect, a question or questions for the Tribunal. For example, in respect of “the nature of the household”, the Tribunal must ask:
(i) whether there are children and whether there is any joint responsibility for their care and support;
(ii) what the living arrangements of the persons are; and
(iii) whether and to what extent there is sharing of the responsibility for housework.
The regulation poses these questions in order to ensure that the Tribunal takes into account particular circumstances of the marriage as part of the active mental process involved in giving proper, genuine and realistic consideration to the prescribed matters. The legislative intention must be that these questions will be answered, not merely thought about. They must be answered so that the circumstances identified by the answers are included in the evaluation of whether there is a “married relationship”. In some cases, the Tribunal’s answer may be that there is no material, or insufficient material, to be able to form a conclusion on a prescribed matter: cf Paerau at [27], [69] and [119]. However, there must be an answer, or, in other words, a finding, even if the finding is that no conclusion can be reached upon the matter.
However, one must be mindful that a Tribunal’s reasons may not always be structured in a way that formulaically follows the provisions of the Regulation like a checklist. In He, the Full Court explained at [82]:
82. The Tribunal’s reasons were not structured in a manner that formulaically addressed each of the relevant matters in turn, but they did not have to be: see Zhang at [20]. Further, as Charlesworth J said in Singh at [20], the impressionistic and evaluative nature of the Tribunal’s task must be taken into account when drawing implications from its reasons, and, further, such reasons are not to be construed minutely and finely with an eye attuned to the perception of error.
In this case, the Tribunal considered the financial aspect of the parties’ relationship (as required by reg.1.15a(3)(a)): see [47] to [50]. The only significant joint asset of the parties was a bank account and this is identified in [47]. There was no evidence of joint liabilities or even pooling resources to meet day to day expenses: see [48]. There is nothing to suggest a legal obligation of one in relation to the other. To the extent there was sharing of expenses, the Tribunal made the findings it could on the material.
The Tribunal also carefully reviewed the parties’ living arrangements at [51] to [54]. The parties had no joint responsibilities with respect to children as they had no children together. The living arrangements (including Ms Nicotra’s time at an SRS residence) is discussed at [52]. It was not argued that there was any evidence as to who undertook the housework.
The Tribunal turned to the social aspects of the parties’ relationship at [55] to [60]. There is a specific finding (at [60]) that they do not represent themselves to others as being married to each other. The opinions of friends and acquaintances are considered at [57] to [59]. The limited evidence as to planning and undertaking social relationships appears from [55].
Finally, the Tribunal considered the nature of the applicant and
Ms Nicotra’s commitment to each other at [61] to [66]. The chronology of the relationship appears in earlier passages in the reasons. As this was not a stereotypical marriage like relationship, as required by reg.1.15a(3)(d)(i), it does not have a simplistic answer, although it is clear that the Tribunal considered the duration of the association of the parties. Similarly, as they had not lived together for one single period the Tribunal had to consider the living arrangements over time which it did in these paragraphs. The Tribunal identified the applicant’s evidence that he supported Ms Nicotra and that Ms Nicotra provided no support to him: see [66]. At [66] the Tribunal effectively addressed whether the applicant and Ms Nicotra saw the relationship as a ‘long-term one’, noting that the applicant’s evidence:
… reveals to the Tribunal his belief that he was providing her with financial and emotional support and even had sexual intercourse with her a “couple of times” in exchange for her sponsorship.
The matters in reg.1.15a(3) are not exclusive: see as required by reg.1.15a(2). Other relevant matters, such as the claim of domestic violence, were considered in this case.
I am persuaded that, in this case, when the Tribunal’s reasons are read as a whole, the Tribunal does adequately deal with each of the matters set out in the Regulations, just as the Full Court found that the Tribunal had done so in He’s Case.
As a result, I am not persuaded that any of these matters amount to a basis for granting relief to the applicant.
Conclusion
In the circumstances of this case the applicant has not made out a ground for judicial review. I must therefore dismiss the application.
I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller
Date: 18 October 2018
Key Legal Topics
Areas of Law
-
Administrative Law
-
Immigration
Legal Concepts
-
Judicial Review
-
Procedural Fairness
-
Natural Justice
-
Jurisdiction
0