Singh v Minister for Immigration and Border Protection
[2020] FCA 241
•27 February 2020
FEDERAL COURT OF AUSTRALIA
Singh v Minister for Immigration and Border Protection [2020] FCA 241
Appeal from: Singh v Minister for Immigration & Anor [2018] FCCA 3648 File number: VID 4 of 2019 Judge: KENNY J Date of judgment: 27 February 2020 Catchwords: MIGRATION – appeal from decision of the Federal Circuit Court dismissing application for judicial review of a decision of the Administrative Appeals Tribunal – failure of the appellant to appear at the hearing of the appeal – appeal dismissed Legislation: Federal Court of Australia Act 1976 (Cth) s 25
Migration Act 1958 (Cth) s 5F
Migration Regulations 1994 (Cth) reg 1.15A, Schedule 2, cl 820.211
Cases cited: CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; 253 FCR 496
Minister for Immigration and Border Protection v SZUXN [2016] FCA 516; 69 AAR 210
Date of hearing: 27 February 2020 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 54 Counsel for the Appellant: The Appellant did not appear Counsel for the First Respondent: Mr M Hosking Solicitor for the First Respondent: Sparke Helmore Counsel for the Second Respondent: The Second Respondent filed a submitting notice, save as to costs ORDERS
VID 4 of 2019 BETWEEN: JAGJEET SINGH
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
KENNY J
DATE OF ORDER:
27 FEBRUARY 2020
THE COURT ORDERS THAT:
1.The appellant’s application for an adjournment be refused.
2.The appeal be dismissed.
3.The appellant pay the first respondent’s costs of the appeal, as agreed or assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(Delivered ex tempore, revised from transcript)KENNY J:
This is an appeal from a judgment of the Federal Circuit Court of Australia dismissing an application for judicial review of a decision made by the Administrative Appeals Tribunal on 29 March 2017. The Tribunal affirmed a decision of the delegate of the respondent Minister not to grant the appellant a Partner (Temporary) (Class UK) (Subclass 820) visa (subclass 820 visa): see Singh v Minister for Immigration & Anor [2018] FCCA 3648.
At the relevant time, it was a primary criterion for the grant of a subclass 820 visa that, at the time of application for the visa, the visa applicant was the spouse or de facto partner of an Australian citizen: see Migration Regulations 1994 (Cth), Schedule 2, cl 820.211(2). Further, at the relevant time, s 5F of the Migration Act 1958 (Cth) provided that:
5F Spouse
(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.
…
At the relevant time, for the purposes of s 5F(3) of the Migration Act, reg 1.15A of the Migration Regulations set out particular matters that the Tribunal was required to consider when determining whether one or more of the conditions in s 5F(2) existed in relation to the visa applicant and the sponsor.
BACKGROUND
The appellant is an Indian citizen, who arrived in Australia on 14 June 2009 holding a student visa. His student visa expired on 17 October 2011.
At the time the appellant arrived in Australia, he was married to Ms Kaur. The appellant and Ms Kaur had a son in the middle of 2010. The appellant and Ms Kaur divorced on 23 April 2011.
In December 2010, the appellant met Ms Lancaster, who later became the sponsor for his application for a subclass 820 visa. On 8 May 2011, the appellant married Ms Lancaster and, on 12 September 2011, he applied for a subclass 820 visa on the basis of his relationship with her. The appellant and Ms Lancaster divorced on 17 October 2014.
On 11 April 2014, the appellant advised the Minister’s Department that his relationship with Ms Lancaster had ceased and that he had suffered family violence perpetrated by her.
On 13 June 2014, a delegate of the Minister refused the appellant’s visa application on the basis that the appellant did not satisfy the criterion in cl 820.211(2) of Schedule 2 to the Migration Regulations.
On 4 July 2014, the appellant applied to the then Migration Review Tribunal (MRT) for review of the delegate’s decision. On 2 June 2015, the MRT affirmed the delegate’s decision. On 1 July 2015, the appellant applied to the Federal Circuit Court for judicial review of that decision. On 1 August 2016, the Federal Circuit Court made orders quashing the MRT’s decision and remitting the matter to the Tribunal: see Singh v Minister for Immigration & Anor [2016] FCCA 1845.
On 16 December 2016, the appellant appeared before the Tribunal again to give evidence and present arguments. He was assisted by an interpreter. On 29 March 2017, the Tribunal affirmed the delegate’s decision.
THE TRIBUNAL’S DECISION
The Tribunal found that the appellant did not satisfy the criterion in cl 820.211(2) of Schedule 2 to the Migration Regulations because the Tribunal was not satisfied that, at the time of the visa application in September 2011, the appellant and Ms Lancaster had a mutual commitment to a shared life as husband and wife to the exclusion of all others; that the relationship between them was genuine and continuing; and that they lived together or that they did not live separately and apart on a permanent basis. In reaching this conclusion, the Tribunal relied on the following matters: (1) the appellant and Ms Lancaster had never opened a joint bank account; (2) the appellant and Ms Lancaster did not share expenses, apart possibly from a brief period at the earliest time they were living together; (3) there was no evidence of any joint assets or liabilities; (4) the appellant and Ms Lancaster maintained two households and the Tribunal did not accept that they genuinely established a household together; (5) the appellant’s evidence that he spent time with Ms Lancaster’s children was undermined by his inability correctly to recall their names and ages (particularly the family name and age of Ms Lancaster’s daughter, who the appellant claimed to have spent more time with); (6) there was very limited and in some respects unreliable evidence about the social aspects of the relationship; (7) the written statements made by the appellant and Ms Lancaster about their relationship or their commitment to one another lacked detail.
The Tribunal concluded its analysis at this point by saying (at [42]-[45]) under the heading, “Nature of persons’ commitment to each other”:
The problems in Mr Singh’s evidence and the evidence generally that the Tribunal has noted so far undermines his claims ever to have had a relevant commitment to Ms Lancaster. That evidence, but also the generality of Ms Lancaster’s written statement, and the evidence regarding her apparent financial exploitation of Mr Singh in circumstances where she had her own job yet demanded he pay even her fines undermines the claim that she ever had a relevant commitment to him.
The Tribunal places limited weight on this consideration.
Having regard to the above matters, the Tribunal is not satisfied that, at the time of the visa application in September 2011, Mr Singh and Ms Lancaster had a mutual commitment to a shared life as husband and wife to the exclusion of all others or that the relationship between them was genuine and continuing. The Tribunal further is not satisfied that they lived together or that they did not live separately and apart on a permanent basis.
The Tribunal is mindful of recent judgements confirming that the motivation for being in a relationship is not determinative of whether there is a genuine and continuing relationship within the meaning of the Regulations … The relationship must, however, be genuine and not a sham or false relationship … Only Mr Singh gave evidence to the Tribunal. Whatever precisely his or Ms Lancaster’s motivation for marriage may have been, for the reasons given above the Tribunal is not satisfied that the relationship was genuine in the required sense.
Because the Tribunal found that the appellant did not satisfy the criterion in cl 820.211(2) of Schedule 2 to the Migration Regulations, it was unnecessary for it to consider whether, at the time of the Tribunal’s decision, by reason of the appellant’s claims to have suffered family violence committed by Ms Lancaster, the appellant satisfied the criterion in cl 820.221(3)(b)(i) of Schedule 2 to the Migration Regulations. Nonetheless, the Tribunal observed (at [52]-[53]):
There is not what could amount to a non-judicially determined claim of family violence, for the relevant requirements of the Regulations are not met. The Tribunal however observes that the psychologist’s report, an undated letter by GP Dr Ameel Abud, and a written statement (actually two of three pages, apparently, of a statement submitted to the MRT) by Mr Singh refer to an incident at the beginning [of] 2012, involving a frying pan, though they do not refer to the incident consistently. The psychologist recorded that Ms Lancaster reportedly struck Mr Singh on his head with a frying pan “flinging it across to hit his right hand”. In his statement Mr Singh said Ms Lancaster approached him with a frying pan. He was shocked and put up his right hand to protect his head when the frying pan hit him on the right hand. He saw Dr Abud the next day. Dr Abud’s letter states that Mr Singh told him that his wife “through (sic) a frying pan and hurt Right index finger”. The Tribunal is not assessing the family violence claim though considers the inconsistency generally detracts from Mr Singh’s credibility.
If the Tribunal were satisfied that Mr Singh was the spouse of Ms Lancaster but that the relationship came to an end, the apparent inconsistency in the evidence about the alleged assault might not be very important. That is because Mr Singh has made a judicially determined claim of family violence: he has submitted an intervention order dated 29 February 2012 – an order that notes in particular that Ms Lancaster was present at the court hearing and, without making admissions, consented to the order being made. The Tribunal observes, though, that, in contrast, Mr Singh told the Tribunal that he was sure that Ms Lancaster was not at court on the day the intervention order was made. He said that the information recorded in the order was wrong in that regard.
THE FEDERAL CIRCUIT COURT DECISION
The appellant applied to the Federal Circuit Court for judicial review of the Tribunal’s decision. The appellant (who was self-represented) advanced the following two grounds:
1.Domestic violence was happened they are not considering.
2.Intervention order was made and AAT they are saying she was in the court which is wrong she was not there
(Errors in original)
In the Federal Circuit Court the primary judge rejected both grounds on the basis that it was unnecessary for the Tribunal to consider whether the appellant’s relationship with Ms Lancaster had ended because of family violence. This was because the Tribunal made its decision on the basis that, at the time of the application for the visa, the appellant was not the spouse or de facto partner of an Australian citizen, and therefore did not satisfy the criterion in cl 820.221 of Schedule 2 to the Migration Regulations. Specifically, in relation to ground one, the primary judge held that it was not a jurisdictional error for the Tribunal not to consider whether domestic violence had occurred, because, having regard to its findings, the issue did not arise. Concerning ground two, the primary judge noted that the Tribunal did not draw any conclusion from the circumstances of whether or not the sponsor was present when the intervention order was made, and reiterated that it was unnecessary for the Tribunal to have said anything about the circumstances in which the intervention order was made.
The Federal Circuit Court also addressed another matter, namely, whether the Tribunal had considered all the matters it was required to consider under reg 1.09A and reg 1.15A of the Migration Regulations, and concluded that it had done so.
The primary judge concluded that there was no jurisdictional error and dismissed the appellant’s judicial review application. The appellant appealed to this Court.
APPELLANT’S NOTICE OF APPEAL
By his notice of appeal, the appellant seeks to challenge the judgment of the Federal Circuit Court on three bases. The notice of appeal states as follows:
1.I believe the Federal Circuit Court made an error in not finding that the Tribunal had committed jurisdictional error as the Tribunal has failed to give my claims proper, genuine and realistic consideration.
Particulars of grounds:
i.I made a claim about my mental health being not good and that I suffered from depression and anxiety. I also stated that I was very nervous in the hearing. I stated my mental health problems quite early in the hearing. The Tribunal did not give proper and genuine consideration to how my mental health may have affected the answers I gave, instead finding fault with all of my inconsistent answers but not considering that I was not able to answer as well because I was under a lot of stress and anxiety and had problem recalling events and details while in this state of mind.
ii.The Tribunal did not give genuine consideration to the circumstances of my relationship and the period of time which has passed, which may have caused the inconsistency in some of my answers. The Tribunal also did not consider the impact that the family violence has had on my mental health and my ability to respond and recall the details that the Tribunal considered to be important. I left the relationship in 2014, and more than 4 years have passed before I presented before the Tribunal hearing. I have trouble remembering everything about the relationship, and because of the violence and trauma I suffered, I also may have subconsciously suppressed some memories, which may also have affected the answers I gave.
iii.The Primary Judge erred in the decision in not having regard to, or making a finding on, the Tribunal’s failure to give proper, genuine and realistic consideration to the effect my mental health state has had on my ability to answer consistently and whether this factor should have been given more regard in the assessment of my claims of being in a genuine relationship.
2.I believe the Federal Circuit Court made an error in not finding that the Tribunal had committed jurisdictional error as the Tribunal did not consider relevant information they were bound to take into account and instead had regard to irrelevant evidence.
Particulars of grounds:
i.The Tribunal has made mention of documents such as the psychologist’s report and the GP’s report, which all support my claims of a genuine relationship and the family violence, but has sought to discredit the information in those documents by referring to an alleged inconsistency between the psychologist’s report account of the family violence incident and the GP’s account, and using it to say that it proves the relationship was not genuine.
ii.The inconsistency referred to by the Tribunal is not apparently evident. The psychologist report mentions that Ms Lancaster was hitting my head and I put my right hand up to protect my head and therefore hurt my hand. The GP’s report states that my right index finger was hurt and swollen. This inconsistency mentioned is incorrect and is not accurate. In the full incident, Ms Lancaster did hit both my head and my hand, as per the account to the psychologist, but I did not need treatment for my head, just my hand. Naturally the GP report would be more concise about the exact treatment I needed, which was on the index finger of my right hand.
iii.The Tribunal made a legal error by disregarding the information by not considering or giving proper genuine consideration to the reports by the GP and by the Psychologist. These professionals are specialists in their fields and failure to give genuine consideration to their reports means relevant information has not been properly considered in respect of my claims.
iv.The Tribunal’s consideration of the apparent inconsistency between the GP and the Psychologist’s report and the mentioning that this ‘inconsistent generally detracts from’ my ‘credibility’, shows a consideration of irrelevant information and in a manner that has been incorrectly done. As mentioned, the GP’s report is more brief because it is expected to be a concise report of the specific injury for which I sought treatment. There is no inconsistency between the reports and the reliance on this alleged inconsistency to consider that my relationship was not genuine shows that the Tribunal relied on irrelevant information.
v.The Tribunal has not given consideration to the intervention orders that have been taken out against Ms Lancaster by myself. These intervention orders can only be granted against family members, meaning that the fact that the intervention orders were taken out would further prove that I was in fact in a relationship with Ms Lancaster at the time of the order. Further the Tribunal has made an inference that the Intervention Order made might have been wrong or false, as the Order mentions that the respondent was present, while I said that I didn’t remember seeing Ms Lancaster at the hearing. This inconsistency and inference is further unfounded. As mentioned, I myself have difficulty with mental health and may have misremembered incorrectly, however, it would be highly improper for the Court to record an incident incorrectly.
vi.If the Intervention Order certifies that the Respondent was present at the hearing, then in all likelihood she was there and I simply misremembered. The Tribunal’s insistence on drawing upon this alleged inconsistency to infer that my relationship wasn’t genuine is a further indication of their reliance on incorrect information.
vii.The Primary Judge erred in not having regard to, or making a finding on, the Tribunal’s failure to have regard to relevant information and relying on irrelevant information in its findings for a number of key pieces of evidence I submitted in support of my genuine relationship.
3. I believe the Federal Circuit Court made an error in not finding that the Tribunal had committed jurisdictional error as the Tribunal was asking itself the wrong question in respect of the criteria to be met.
Particulars of grounds:
i.The Tribunal has focused most of its assessment of the decision on apparent inconsistent information I have provided in respect of the application. However, this is not necessarily the correct way to assess whether a relationship actually exists in accordance with the factors set out under Reg 1.15A. As explained, I have mental health issues, with psychologist reports to verify, which cause some of my memory and recollection problems, and my ability to answer while under stress and pressure in the environment of a Tribunal hearing. This should have been taken into account by the Tribunal and factored into the weight they attribute to some of the inconsistent answers, rather than the Tribunal simply regarding the inconsistencies exclusively to determine that the relationship was not genuine.
ii.The correct manner in considering the relationship factors is a consideration of whether s. 5F is satisfied in accordance with the factors set out under Reg 1.15A. This means that notwithstanding some of the incorrect answers I’ve given (which I have mentioned can in some respects be attributed to my ability to recall information correctly in light of my mental health, trauma and the length of time that has passed), that the factors are sufficiently met to indicate that I did in fact have a genuine relationship with Ms Lancaster at the time when the family violence occurred.
iii.The focus should be on the nature of the relationship in accordance with the factors prescribed under Reg 1.15A. A focus purely on inconsistency of answers is an incorrect way to assess the criteria.
iv.The Primary Judge erred in not having regard to, or making a finding on, the Tribunal’s failure to ask the right question in respect of the correct criteria for assessing a genuine relationship in accordance with s 5F of the Migration Act and Reg 1.15A of the Migration Regulations.
The appellant filed an affidavit dated 4 January 2019 in support of his appeal. He did not file written submissions. As explained hereafter, the appellant did not attend the hearing.
PROCEEDINGS IN THIS COURT
The Minister appeared by his counsel at the hearing. The appellant did not attend. After the appellant had been called and had not appeared, the Minister submitted that the application for an adjournment made by the appellant the previous day should be refused.
On the previous day, 26 February 2020, Chambers staff received the following email from the appellant:
Dear Associate
I am sending you this email regarding tomorrow hearing. I want able to attend the hearing due to my health. I am attaching the medical certificate. if you have any further inquiry do not hesitate to contact me.
kind regards
Jagjeet Singh
This email was copied to the Minister’s legal representatives. It was accompanied by a medical certificate dated 26 February 2020, which read:
THIS IS TO CERTIFY THAT
Mr Jagjeet Singh has a medical condition and will be unfit to attend Court from 26/02/2020 to 28/02/2020 inclusive.
It was signed by Dr Parbati Gurung MBBS FRACGP, Dip Child Health at Myhealth Medical Centre, Point Cook, Victoria.
A little over an hour later, Chambers staff received the following email from the Minister’s legal representatives:
Dear Associate
We refer to the correspondence below from the appellant.
We are instructed to oppose the adjournment request on the basis that the medical evidence is brief and does not specify the medical condition the appellant is suffering from which will prevent him from attending the hearing tomorrow. Further, the appellant has not indicated that he cannot attend the hearing by telephone should his medical condition prevent him from physically attending the hearing.
Kind regards
[Minister’s solicitor]
This email was copied to the appellant.
An email was subsequently sent by an associate to the appellant and the first respondent’s legal representatives, as follows:
Dear Parties,
As you are aware, the appellant has advised that he is unable to attend tomorrow’s hearing due to ill-health. Justice Kenny considers that this is in substance an application for an adjournment.
The Minister has opposed the appellant’s adjournment application on the basis that the supporting medical certificate does not identify the nature of the medical condition and how it is said to prevent the appellant from attending the hearing fixed for tomorrow.
Justice Kenny has directed that the matter remain listed for hearing tomorrow, Friday, 27 February 2020 at 10:15 am. Her Honour will hear the appellant’s adjournment application if the appellant chooses to pursue it in court tomorrow.
At the hearing tomorrow, the parties should be: 1) prepared to make submissions on the appellant’s adjournment application if pursued; and (2) be prepared for the hearing on all other matters before the Court to proceed.
As the appellant has previously been informed, it is important that he attend the hearing. If he does not attend tomorrow, the Court may proceed to deal with the appeal in his absence.
Prior to the hearing today, 27 February 2020, an associate noticed that there was an error in this email, in that it mistakenly referred to “Friday” rather than “Thursday”. The associate telephoned the appellant, to draw his attention to the fact that the intended reference was to Thursday (not Friday), 27 February 2020, and to confirm that the hearing was listed for today, 27 February 2020. The appellant accepted that the hearing was today.
When the appellant failed to appear at the hearing this morning, 27 February 2020, the same associate again telephoned the appellant. The appellant informed the associate that he would not attend and reiterated that he had sent a medical certificate yesterday by email to Chambers. When the appellant asked what would happen if he did not attend, the associate referred him to the email sent by Chambers staff the previous day. The appellant read out the portion of the email stating that the Court may proceed in his absence if he did not attend. In the circumstances, there seems to be little doubt that the appellant understood the significance of today’s hearing. This is further confirmed by the matters mentioned at [32]-[34] below.
In the responsive email (copied to the appellant), the Minister’s legal representatives opposed an adjournment, affirming that the medical certificate sent by the appellant was inadequate to justify an adjournment because it failed to disclose the nature of the medical condition from which the appellant was said to be suffering. It was in this circumstance that the Court directed that the appeal remain listed for hearing today and that the adjournment application be heard at that time. At the hearing, counsel for the Minister in substance repeated what is set out in the email sent by the Minister’s legal representatives on 26 February 2020.
The Court has received no further explanation as to why the appellant has failed to attend the hearing. I accept that the material relied on by the appellant was inadequate to justify an adjournment. There was nothing to indicate the nature of the medical condition certified to be affecting the appellant in the three days between “26/02/2020 to 28/02/2020” as stated in the medical certificate that the appellant has emailed. There is nothing to indicate in what way his medical condition would prevent him from travelling to court and participating effectively in the hearing.
Further, the appellant was on notice that, notwithstanding his email and the certificate, he had not been granted an adjournment prior to the scheduled hearing; that this application would be given further consideration at the scheduled hearing; and that, if he failed to attend, the Court might proceed with his appeal in his absence.
In the circumstances, I accept the Minister’s submission that it was appropriate to refuse an adjournment, to the extent that the appellant continued to press for an adjournment.
Counsel for the Minister subsequently applied for the appeal to be dismissed under s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth) upon the basis that the appellant had not attended the hearing, after being called to do so. This latter provision empowers a single judge to make an order that an appeal to the Court be dismissed for the failure of the appellant to attend a hearing relating to the appeal.
As the above narrative indicates, there can be no doubt that the appellant was aware of the fact that the hearing of his appeal had been fixed for 27 February 2020 at 10:15 am. Other matters appearing on the Court file confirmed this was so. These matters included the following.
On 6 February 2019, Registrar McCormick made directions for the hearing and conduct of the appeal, including that the lawyers for the Minister notify each party in writing of the date to be fixed by the Court on which the appeal was to be heard. Other correspondence followed. The appellant was notified by an email sent on 1 November 2019 to the email address he had given that his matter would be listed for 27 February 2020 at 10:15 am. The parties were sent a confirming email on 7 November 2019. On 8 November 2019, the appellant confirmed via email that he had received the email sent on 7 November 2019.
On 6 and 14 February 2020, Chambers staff sent the appellant an email reminding him of his hearing on 27 February 2020, that it was important he attend his hearing, and that if he did not do so, the Court may proceed in his absence. On 17 February 2020, a letter was sent by my Chambers staff to the address provided by the appellant repeating this.
Despite being advised repeatedly of the hearing date and that the Court might proceed in his absence if he did not attend, including by the email recently sent by Chambers on 26 February 2020, the appellant did not attend the hearing on the morning of 27 February 2020.
In the circumstances an order should be made under s 25(2B)(bb)(ii) of the Federal Court of Australia Act, as the Minister sought, upon the basis that the appellant had not attended the hearing.
I am fortified in my view that such an order should be made by the fact that attention to the appellant’s notice of appeal would indicate that the appeal has little, or no, prospect of success.
First, it is apparently the case that the first and third grounds set out in the appellant’s notice of appeal were not raised in the Federal Circuit Court and that the appellant requires leave to rely on them. The Court may grant such leave if it considers that it is expedient and in the interests of justice to do so. As I am about to explain, however, there is apparently little merit in these grounds and therefore a grant of leave would not be justified. Further, as I am about to explain, the second ground set out in the appellant’s notice of appeal appears to have little prospect of success.
Under his first ground (see [18] above), the appellant maintained in substance that the primary judge fell into error by not finding jurisdictional error, in that the Tribunal had failed to give proper consideration to the appellant’s claim that his mental health may have affected the answers he gave at the hearing, the possibility that the passage of time since the date of the visa application may have affected the appellant’s answers at the hearing, and the possible adverse effect that the claimed family violence may have had on his mental health.
It may be accepted that adverse credibility findings are capable of giving rise to jurisdictional error, including on the basis that those findings are illogical, irrational, unsupported by probative evidence, or are made in circumstances where the Tribunal overlooked significant material. At the same time, it may be accepted that “[c]onsiderable caution must … be exercised before too readily acceding to a proposition that adverse findings as to credit expose jurisdictional error”: see Minister for Immigration and Border Protection v SZUXN [2016] FCA 516; 69 AAR 210 at [56], cited with approval in CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; 253 FCR 496 at [60].
It is clear that the Tribunal was well aware of the appellant’s mental health claim and the material before it concerning that claim. This material was as follows:
(1)a letter from a GP dated 10 April 2012, which stated the appellant “suffers from depression and anxiety and sees the psychologist regularly for psychotherapy. He is currently on antidepressants …”;
(2)a psychologist’s report dated May 2012, which stated that the appellant presented with symptoms consistent with a major depressive disorder and other associated psychiatric disorders, one symptom of which was “impaired memory”; and
(3)the appellant’s evidence at the hearing before the Tribunal on 16 December 2016 that his mental health was “not the best but it’s better”, and that he had discontinued counselling for those mental health issues in 2012.
The Tribunal was evidently aware of the appellant’s claims about his mental health and the material mentioned above: see its reasons at [14]. The Tribunal specifically noted this evidence as well as the psychologist’s May 2012 report and the GP’s letter dated 10 April 2012. Addressing the appellant’s mental condition, the Tribunal concluded that the appellant was competent to give evidence. The Tribunal observed (at [14]) that the appellant appeared to understand its questions, that he was generally responsive, and that no claim had been made that he was not competent to give evidence.
Although the psychiatrist’s report referred to the appellant having “impaired memory” in May 2012, there was no material before the Tribunal that indicated that his memory was affected on 16 December 2016 at the time of the Tribunal hearing. Further, there is nothing in the letter from the GP dated 10 April 2012 to indicate that this impairment might have continued. The appellant’s evidence at the hearing was simply that his mental health was “not the best but it’s better” and that he had discontinued counselling for these mental health issues in 2012.
More particularly, at the Tribunal hearing on 16 December 2016, the appellant did not make any claim that his mental health issues affected his memory or his ability to participate in the hearing. At most, the appellant said a few times at that hearing that he had made mistakes at the earlier hearing before the MRT on 20 May 2015 because he had been “nervous”, and the MRT had put him “under pressure”. Reference to transcript indicates that the Tribunal was aware of this. It also observed (in its reasons at [14]) that the appellant appeared nervous during the hearing but when asked if he was nervous, he indicated he was able to continue. Reference to the transcript also bears this out. It would also appear that at one point during the Tribunal hearing the appellant told the Tribunal he was unable to remember the details of Ms Kaur’s visa arrangements in 2011 because “it’s hard to remember me on that time”. He did not, however, make any other claim that he was unable to remember information because of the passage of time.
In deciding whether the appellant satisfied the criterion in cl 820.211(2) of Schedule 2 to the Migration Regulations, the Tribunal placed some weight on some matters relating to the appellant’s inability to recall particular facts accurately. These were: (1) the appellant’s inability to recall the names of Ms Lancaster’s children, especially the family name and age of her daughter whom he claimed to know best; and (2) his inability to recall the ages of Ms Lancaster’s children generally. The Tribunal expressly acknowledged in this context (at [18]) “the passage of time since the relationship is said to have ended”, but apparently took the view that these particular matters were of such significance that it would have expected the appellant to have remembered them in any event, despite the effluxion of time. There would appear to be no other occasion upon which the appellant’s inability to recall particular facts accurately weighed against him.
Ultimately, there would appear to be little or no merit in the claim that the Tribunal fell into jurisdictional error, as outlined in the first ground, bearing in mind that: (1) the Tribunal had regard to the material before it concerning the appellant’s mental health issues; (2) the appellant did not, in fact, claim that those issues had any continuing effect on his memory at the time of the hearing; and (3), in any event, the Tribunal expressly acknowledged the passage of time since the date of the visa application and, by implication, that it was well aware that this may have affected his memory to some degree. With respect to the two matters where the Tribunal treated the appellant’s inability to recall matters accurately as telling against his credibility, it was clear the Tribunal took the view that he should have recalled them since they were of such a nature that their recollection could not have been affected by a failing of memory. It would, so it seems to me, be difficult to successfully contend that it was not open to the Tribunal to make its limited adverse credibility findings on this basis. In any event, these were not the only, or even the most significant, matters that led the Tribunal to find that the appellant did not satisfy the relevant criterion in cl 820.211(2) of Schedule 2 to the Migration Regulations.
For these reasons, the first ground would appear to have very little prospect of success.
In substance, the appellant’s second ground is that the Federal Circuit Court should have found that the Tribunal fell into jurisdictional error by: (1) inaccurately identifying the inconsistency between the accounts of the family violence incident given in the GP’s undated letter, the psychologist’s May 2012 report, and the appellant’s own statement; and (2) failing to have regard to the intervention order that the appellant obtained against Ms Lancaster.
There does not seem to be a tenable argument in support of these propositions. First, it was clearly open to the Tribunal to identify inconsistency in the three accounts of the family violence incident. The GP’s letter stated that the appellant’s wife (Ms Lancaster) had thrown a frying pan and hurt the appellant’s hand. The psychologist’s report gave a different account, to the effect that Ms Lancaster “struck him” on his head with a frying pan, “flinging it across to hit his right hand”. The appellant’s statement was that Ms Lancaster “came up to me and struck the frying pan at me. I … quickly put my right hand up to protect my head when the frying pan hit me on the right hand”. More importantly, however, the Tribunal did not rely on any identified inconsistency in reaching its conclusions about the criterion in clause 820.211(2) of Schedule 2 to the Migration Regulations. This is clear upon reading the Tribunal’s reasons and it would follow that, if there was any error of the kind the appellant identifies at this point, it would not be a material one.
Equally, it is clear from the Tribunal’s reasons that the Tribunal had regard to the document recording the intervention order. This led the Tribunal to observe that this record of the order stated on its face that Ms Lancaster was in court when the order was made. The Tribunal also recorded that the appellant disputed that she was in court at that time. Whether Ms Lancaster was in fact in court was immaterial to the Tribunal’s decision, however. The Tribunal made no finding about the issue and, to the extent that any error might be established, it would not be a material error because it could not be said that it affected the Tribunal’s decision that the appellant had not satisfied the criterion in cl 820.211(2).
For these reasons, the second ground would appear to have very little prospect of success.
Under his third ground, the appellant claimed that the primary judge erred in not finding that the Tribunal fell into jurisdictional error by asking itself the wrong question in respect of a criterion for the visa. In his notice of appeal, the appellant asserted that the Tribunal’s reasons involved “[a] focus purely on inconsistency of answers”, without addressing the correct question. Nothing in the Tribunal’s reasons indicates that it did not operate within the requisite statutory framework, having regard to the applicable regulations. It is clear from the Tribunal’s reasons for its decision that the Tribunal correctly identified the key issue on the review as being whether the appellant satisfied the criterion in cl 820.211(2) of Schedule 2 to the Migration Regulations. In addressing this issue, it set out its assessment of the evidence and then proceeded to consider the matters mentioned in cl 820.211(2), as well as in s 5F of the Migration Act and reg 1.15A of the Migration Regulations. In doing so, the Tribunal relied to a limited extent on the appellant’s inability to recall particular facts accurately, but it also relied on other significant matters. The Tribunal’s consideration of these matters makes it clear that it did not ask itself the wrong question.
For these reasons, the third ground would appear to have very little prospect of success.
In summary, as stated above, there seems to be very little prospect that the appellant would be granted leave to raise any ground that had not been raised before the Federal Circuit Court, on the basis that it was expedient and in the interests of justice to do so. No ground would appear to have sufficient merit to justify a grant of such leave. Further, even where a ground in fact has been raised before the Federal Circuit Court (so that no leave is required to agitate it in this Court) there is no basis that might indicate that such a ground has any real prospect of success.
DISPOSITION
In all the circumstances before the Court, for the reasons stated, the appellant’s adjournment application should be refused, and the appeal be dismissed under s 25(2B)(bb)(ii) of the Federal Court of Australia Act, with costs.
I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny. Associate:
Dated: 27 February 2020
0
3
3