Spano v Minister for Immigration
[2018] FCCA 2049
•3 August 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SPANO v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2049 |
| Catchwords: MIGRATION – considerations regarding what is a “spousal relationship” under Migration Act – parties legally married under Australian domestic law – significant age difference between the parties – Tribunal did not identify what constituted a “meaningful discussion” by the parties about having children – Tribunal did not take into account the inherent unlikelihood of a 50 year old woman conceiving a child – legal unreasonableness established – writs issued. |
| Legislation: Migration Act 1958 (Cth), s.5F, 198(2) Migration Regulations 1994 (Cth), reg.1.15A(3), Schedule 2 cls.309.211, 309.221 |
| Cases cited: ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109 BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94 FTZK v Minister for Immigration and Border Protection (2014) 310 ALR 1 Minister for Immigration and Border Protection v Angkawijaya (2016) 236 FCR 303 Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 |
| Applicant: | MIRELLA SPANO |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | CAG 54 of 2017 |
| Judgment of: | Judge Neville |
| Hearing date: | 15 February 2018 |
| Date of Last Submission: | 15 February 2018 |
| Delivered at: | Canberra |
| Delivered on: | 3 August 2018 |
REPRESENTATION
| Solicitor for the Applicant: | Sean Kikkert |
| Counsel for the Respondents: | Mr Quayle |
| Solicitors for the Respondents: | Clayton Utz, Canberra |
ON A FINAL BASIS, THE COURT ORDERS THAT:
The decision of the Administrative Appeals Tribunal is to be brought into this Court, and a writ of certiorari is to issue to quash the decision.
A writ of mandamus shall issue and the matter is to be re-determined according to law.
The First Respondent is to pay the Applicant’s costs in accordance with Schedule 1 Part 3 of the Federal Circuit Court Rules 2001.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
CAG 54 of 2017
| MIRELLA SPANO |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
At the commencement of their joint judgment in Minister for Immigration and Border Protection v Angkawijaya, Kenny and Griffiths JJ refer to and quote the lyrics of a 1955 song by Frank Sinatra “Love and marriage” and how such things “go together like a horse and carriage.”[1] Their Honours go on to point out how such things were at the heart of the matters before them, particularly in their finding of “ambivalence” between the parties.
[1] Minister for Immigration and Border Protection v Angkawijaya (“Angkawijaya “) (2016) 236 FCR 303 at [5].
Such things are similarly relevant to the current proceeding before this Court. But unlike the findings of “ambivalence” between the parties in the relationship in Angkawijaya, in this matter, among other things, the Applicant (a) visited her lawfully wed, but much younger, spouse almost every day for the 10 months he was in immigration detention, and (b) had his name tattooed on her arm. In relation to the former, the Tribunal seemed to give such regular visitation little weight. In relation to the latter, rather curiously in my view, the Tribunal did not even consider it to be a relevant factor or part of the indicia of a committed spousal relationship. On the other hand, it considered not wearing a wedding ring to be a relevant consideration, which was adverse to the Applicant; but it did not consider a tattoo on her arm as warranting a mention. To state the obvious: a wedding band can be easily and regularly removed. A tattoo – rather less so.
Further, it considered the [modest] discussion between the parties about their somewhat indefinite intention to have children (noting that the Applicant is a 50 year old woman), in which the parties made comments such as “it will happen”, not to be a “meaningful discussion.” What the Tribunal understood, or intended to be comprehended by, or what constituted, a “meaningful discussion” was, unfortunately, not explained. And certainly, there is no suggestion or indication that the Tribunal indicated or explained to the parties what would, or what did not, constitute a “meaningful discussion” about having children.
For the reasons that follow, the Tribunal committed a number of identified jurisdictional errors; the relief sought by the Applicant should be granted, including an Order for costs.
Brief Background
The Applicant in this matter is an Australian citizen. At the time of the decision of the Administrative Appeals Tribunal (“the Tribunal”), which she challenges, she was aged 50 years old. On 14th December 2014, she married Mr Pllumbi in a civil ceremony in South Australia. At the time of their marriage, Mr Pllumbi was aged 23 years. He is a citizen of Albania. On 7th July 2015, he applied for a Partner (Provisional) (Class UF) visa, with the Applicant as his relevant sponsor.
The decision of the Delegate, which was confirmed by the decision of the Tribunal, dated 8th June 2017, was that Mr Pllumbi did not satisfy cl.309.11 of Schedule 2 to the Migration Regulations 1994. While the Delegate accepted that the parties were legally married, it did not accept that the Applicant was a “spouse” or “de facto partner” for “the purpose of the migration law.”[2]
[2] See Reasons of the Tribunal, at [2], at Court Book (“CB”) p.463.
Accordingly, as described in its reasons, at [7], the issue before the Tribunal was “whether Mr Pllumbi is a “spouse” for the purpose of the Migration Act and Regulations.” The Delegate and the Tribunal found that, although there was a valid marriage between the couple [for the purposes of Australian domestic law], for the purposes of the Migration Act 1958 (“the Act”) he was not. The Applicant challenges this decision on multiple grounds that are set out later in these reasons.
The Tribunal’s Decision
An outline of the Tribunal’s decision is as follows.
For immediate purposes, it is sufficient to note that the Tribunal commenced its reasons by reference to the definition of “spouse” in s.5F of the Act. For the purposes of that section, persons in a married relationship must be married to each other under a marriage that is valid for the purposes of the Act; there must be mutual commitment to a shared life as husband and wife to the exclusion of all others; the relationship must be genuine and continuing; and the couple must live together, or not live separately and apart, on a permanent basis: s.5F(2)(a)-(d). In forming an opinion regarding these matters, the Tribunal must have regard to “all of the circumstances of the relationship.” The Tribunal said that this includes evidence of the financial and social aspects of the relationship and a “review [of the] applicant’s household and their commitment to each other as set out in r.1.15A(3).”[3]
[3] See reasons at [10].
The first question for the Tribunal was: “are the parties validly married?”
In answering this question the Tribunal addressed a number of matters.
The Tribunal found, at [11], that there was no evidence before the Tribunal to cast doubt upon the validity of the parties’ marriage, which led to the Tribunal accepting that the parties are married under a valid marriage for the purposes of s.5F(2)(a).
The Tribunal next considered what might be described as some background information. First, it noted that the visa applicant was born in June 1992 in Albania, that he has not been previously married, and has no children. Secondly, it noted that his sponsor, the Applicant in the current matter, Ms Spano, was born in October 1966 and at the time of the visa application was 48 years old. She has previously been married, but divorced, and has two adult sons from her first marriage.
Thirdly, the Tribunal considered that Mr Pllumbi has (in my words) a somewhat chequered history with the Department, because: (a) he previously applied for a subclass 571 student visa in May and August 2010 but both applications were refused by the Australian Embassy in Athens; and (b) on 29th February 2012, Mr Pllumbi arrived in Australia on a fraudulently altered Italian passport in a false name with a date of birth of 1979. In consequence, upon arriving in Australia, Mr Pllumbi was not “immigration cleared” and was detained. In March 2012 he lodged a protection visa application which was refused in May of that year. He was later granted a bridging visa in March 2013 and became “an unlawful non-citizen” in Australia in September 2013. On 5th August 2014, Mr Pllumbi was detained in immigration detention and was removed from Australia under s.198(2) of the Act on 22nd June 2015. He is now living in Albania. The application for the partner visa was made in July 2015.[4]
[4] See reasons [12] – [13].
Next, the Tribunal noted the circumstances which led to the formation of the relationship between Ms Spano and Mr Pllumbi. The following matters seem not to be controversial.
The couple met at the Lava Nightclub in Adelaide on 21st June 2014. They started going out on 10th of July in the same year, and as noted earlier in these reasons, Mr Pllumbi was detained on 5th August 2014. According to the visa application, the couple committed to a shared life to the exclusion of all others on 10th October 2014. The couple married in December 2014 whilst Mr Pllumbi was in immigration detention.
At [14], the Tribunal stated that it accepted that Ms Spano visited Mr Pllumbi very regularly (“nearly every day”), whilst he was in detention from 5th August 2014 until 22nd June 2015, when he was removed from Australia. The Tribunal again noted, however, that the parties had been going out for less than one month when he was detained in Australia. Somewhat curiously, I simply note that the Tribunal was prepared to draw a conclusion from the length of time that the parties had been going out (i.e. less than one month) but not to comment on, or draw any conclusion from Ms Spano’s almost daily visit to Mr Pllumbi whilst he was in detention for a period of ten months.
At [15]-[17], the Tribunal noted and accepted that, since Ms Pllumbi’s return to Albania, Ms Spano had visited him in that country five times; the dates and duration of those trips are specified in the Tribunal’s reasons.
The next question addressed by the Tribunal was: “Are the other requirements for a spousal relationship met?”
At [18], the Tribunal acknowledged that, since the relationship commenced, the parties had spent only short time together, separated by Mr Pllumbi’s detention in Australia, and then geographically, by reason of his removal from Australia. Again, somewhat curiously, the Tribunal made no comment on the fact that the circumstances of the parties had prevented the couple spending much time together; maybe the lack of comment was because the difficult circumstances were self-evident. The Tribunal noted that there was no evidence before it regarding any joint ownership of assets, joint liabilities or any legal obligations owed to the other party. Also, presumably because it was self-evident, the Tribunal noted that there was not an established household, given that the parties live in separate countries.
The Tribunal stated that Mr Pllumbi does not work and lives with his parents, while Ms Spano works 15-20 hours per week at her brother’s hairdressing business. She also works part-time at a coffee shop. The Tribunal accepted that, on a few occasions, Ms Spano has sent $100 to Mr Pllumbi. The Tribunal stated that it was not clear how she could afford to do so given her limited work. The Tribunal also questioned how Ms Spano could afford the various visits to Mr Pllumbi in Albania.
At [21] the Tribunal said that its questions about finances about the parties living separately “were not determinative”.
At [22] the Tribunal confirmed that the physical separation of the parties was likewise not determinative of whether they were “spouses” for the purposes of the Act. It accepted that when she visited Mr Pllumbi in Albania, they stayed together at a hotel and equally that they visited Mr Pllumbi’s parents at their home. The Tribunal was provided with a DVD and a thumb-drive containing video clips of Ms Spano and Mr Pllumbi’s time together in Albania and “the signing of the wedding papers.”
Next the Tribunal turned its attention to the “social aspects” of the relationship and whether the parties represent themselves to other people as being married to each other. Here, the Tribunal, at [23] – [27], noted that Ms Spano has not told any of her family or friends that she is married. Ms Spano said this was because she did not want to introduce her family to Mr Pllumbi while he was in detention. She also said that she is a private person, and telling others is not really important to her; it is the business of the parties. It is not disputed that Ms Spano has Mr Pllumbi’s name tattooed on her arm and when anyone asks her about it, she says that it is “someone special.” Ms Spano said that her two adult sons knew about her relationship with Mr Pllumbi, but not of their marriage.
The Tribunal said it accepted that when Ms Spano goes to Albania, she and Mr Pllumbi go out together. It was also accepted that Mr Pllumbi’s parents know the couple are married, as do other members of Mr Pllumbi’s family. The Tribunal accepted that the parties communicate regularly with each other.
In particular, at [27], the Tribunal stated:
Given the significance of a marriage between two people and the fact Ms Spano said that she is close to her family the Tribunal regards it as significant that no family, friends or other persons with whom Ms Spano associates, are aware she is married. The Tribunal accepts that when Ms Spano married Mr Pllumbi in detention, she may have had reason that they not meet him in detention, in the hope that they could meet him out of detention. Nevertheless, to have said nothing about the marriage in over two years, in the context of a close-knit family, whilst leaving Australia for periods of time, the Tribunal regards as significant and against the notion of a genuine and committed relationship.
Next, at [28], the Tribunal said that, while it accepted that parties have seen each other and speak to each other reasonably regularly, they have not lived together. Again with a particular focus on Mr Pllumbi’s period in detention, the Tribunal said: “the Tribunal accepts that Ms Spano visited Mr Pllumbi in detention and he drew considerable comfort from her visits. However, that was in the context of a relationship between them that had existed for less than one month.” To repeat my earlier query: in my view, it is somewhat curious that the Tribunal again focussed so much on the short period between their meeting and marriage and focussed, apparently, relatively little on the length of time and the regularity of the visits while Mr Pllumbi was in detention.
The Tribunal found that, although the parties gave evidence of their desire to be together, the Tribunal was still “left with doubts about the long-term commitment to the relationship” in the light of the following matters.
The first area of concern, which was dealt with under the heading “any other relevant considerations”, was that although the Tribunal accepted that relationships between older women and younger men exist, the Tribunal said that it noted the twenty-five year age gap between the parties; it then observed that age difference between the parties, of itself, does not mean that there is not a genuine relationship.
Next the Tribunal focussed upon the fact that there had been no children of the relationship. It asked the parties whether they have/had discussed having children and said that “the answers given by them did not suggest a consideration of this in a meaningful way.” What the Tribunal considered to be “a meaningful way” was not explained.
The Tribunal noted that when asked about having children, Mr Pllumbi said “everything will happen in the right time and that she is more important”. Ms Spano indicated that they did talk about kids and she said words to the effect “it will happen”. She also said that they do not consider having children to be important and that he loves her more than to have children. Mr Pllumbi said he was not concerned about this issue. The Tribunal commented: “the conversation did not seem to meaningfully engage with difficulties that may necessarily follow in attempting to have a child at 50 years of age.” For my part, again by observation, it is not clear to me that the Tribunal was itself relevantly sensitive to (a) the parties and their decision to have, or not to have, children, and equally (b) any apparent reluctance to discuss this very personal subject in detail with a stranger from the Tribunal.
In conclusion, the Tribunal noted the following (at [31] – [37]):
a)Mr Pllumbi is grateful and appreciative of the care shown to him by Ms Spano, especially while he was in detention;
b)Ms Spano professes her love for him and he for her;
c)The Tribunal “accepts there has been continued contact between the parties and a relationship between them. However, the “landscape” of this relationship is a person who wanted to come to Australia, to the extent of coming on a false passport, and then making a protection visa application to remain in Australia. He and Ms Spano met in a nightclub and went out together for less than one month before he was detained and ultimately removed from Australia…”the application for the visa was made within a few weeks of his deportation from Australia.” The Tribunal then concluded that these “factors are not determinative, of themselves but are part of a matrix of circumstances in this case.”
d)The Tribunal noted the closeness of Ms Spano to her family but that she had not told them of her marriage to Mr Pllumbi. The Tribunal also expressed its concern about (i) the lack of social recognition amongst her family, and (ii) “the lack of evidence of any meaningful discussion (and accepting there was some discussion about it), in relation to the issue of whether the couple wished to have children, in the light of their 25 year age gap.” The Tribunal further said that, while there was some evidence of Mr Pllumbi’s family being aware of the marriage, “the quality and extent of this evidence is not such as to allay the Tribunal’s concerns.”
e)The Tribunal also considered the financial situation of the parties to be unclear, and said that “it is not entirely clear how the travels and time together are funded.” Here I simply note that earlier in its reasons, for example at [21], the Tribunal said that “this aspect is not determinative.” It might therefore be reasonable to ask how, in one part of its reasons, the Tribunal would find that these matters are not determinative, but still, later in its reasons to place not insignificant weight upon such matters. The inconsistency is troubling.
f)The Tribunal concluded that it is ultimately “the combination of factors, though none were determinative, which lead the Tribunal to conclude that it is simply not satisfied, on the evidence, that there is a mutual commitment to a shared life as husband and wife to the exclusion of all others. It is further not satisfied that the relationship between them is genuine.” The Tribunal further found that, in the light of its findings, it was not satisfied that “at the time the visa application was made” the parties were in a spousal relationship.
Grounds of Review
Pursuant to an Amended Application, filed 31st July 2017, the Applicant’s Grounds of Review were set out as follows:
1) The Tribunal committed a jurisdictional error when it asked itself a wrong question, namely whether the parties were in a spousal relationship at the time that the visa application was made. Instead the Tribunal was required to ask itself whether all the evidence, including circumstances that had arisen after the application was made, demonstrated that the parties were in a spousal relationship.
Particulars
1.1 At [34] the Tribunal determined that it was not satisfied that at the time the visa application was made the parties were in a spousal relationship.
2) The Tribunal committed a jurisdictional error by taking into account a number of irrelevant considerations that did not relate to the circumstances of the parties’ relationship.
Particulars
2.1 At [31] the Tribunal considered a number of matters which it referred to as the “'landscape' of this relationship”, which included:
a) the extent that the visa applicant wanted to come to Australia;
b) that the visa applicant came to Australia on a false passport;
c) that the visa applicant made a protection visa application to remain in Australia.
d) that the parties met in a nightclub;
e) that the parties went out for less than one month before the visa applicant was detained and ultimately removed from Australia;
f) that the visa applicant was unlawful in Australia when he met the review applicant; and
g) that the application for the visa was made within a few weeks of the visa applicant’s deportation from Australia."
3) The Tribunal committed a jurisdictional error in that it construed regulation 1.15A(3) by taking into account the visa applicant’s conduct of coming to Australia on a false passport rather than construing it independently of the visa appellant’s past conduct.
Particulars
3.1 At [31], under the heading “Conclusion”, the Tribunal considered the visa applicants conduct in coming to Australia on a false passport.
4) The Tribunal committed a jurisdictional error in that its decision lacked evident and intelligible justification and as such exhibited Li unreasonableness (Minister of Immigration and Citizenship v Li (2013) 249 CLR 332
Particulars
4.1 The decision lacked evident and intelligible justification in dismissing the following evidence:
a) the review applicant had visited the visa applicant nearly every day while he was in detention between 5 August 2014 and 22 June 2015;
b) the review applicant has visited the visa applicant on five occasions since he was removed from Australia;
c) the review applicant stays with the visa applicant at a hotel when she visits, and has visited his parents;
d) the review applicant has the visa applicant’s name tattooed on her arm;
e) there is a thumb-drive evidence of these Albanian trips;
f) the review applicant has sent the visa respondent money;
g) the review applicant and the visa applicant have been in a relationship for three years; and
h) there was a photo before the Tribunal demonstrating that, despite their chronological age difference, the review applicant and the visa applicant appear remarkably similar in age.
Furthermore, the Tribunal’s comments at [26] regarding Ms Spano not wearing her wedding ring and at [30] regarding the review applicant and the visa applicant not being concerned about having children lack evident and intelligible justification.
5) The Tribunal failed to provide procedural fairness to the applicants in that it failed to notify them that the visa applicant’s coming to Australia on a false passport and having made a protection visa application was a consideration that the Tribunal would take into account in determining this matter. The Tribunal also failed to provide the applicants with an opportunity to respond to this adverse information.
Particulars
5.1 At [31] the Tribunal gave consideration to the fact that:
a) that the visa applicant came to Australia on a false passport; and
b) that the visa applicant made a protection visa application to remain in Australia.
6) The Tribunal committed a jurisdictional error by making the decision for an improper purpose.
Particulars
6.1 The Tribunal made a decision for an improper purpose by seeking to punish the applicants for the following acts:
a) that the visa applicant came to Australia on a false passport;
b) that the visa applicant made a failed protection visa application to remain in Australia; and
c) that the visa applicant was unlawful in Australia when he met the review applicant.
In written submissions, the Applicant confirmed that she did not “press” Ground 6.
The Applicant’s Submissions
The Applicant’s submissions, filed 1st February 2018, were as follows:
1) There is before the Court an application for judicial review of a decision of the Second Respondent (Administrative Appeals Tribunal). On 8 June 2017 the AAT affirmed a decision of a delegate of the First Respondent (Minister) not to grant the visa applicant a Partner (Provisional) (Class UF) visa.
Background
2) The following events are critical:
a) 7 July 2015 – Visa Applicant applies for the visa on the basis of his relationship with his sponsor, the review applicant;
b) 3 June 2016 – Delegate decides to refuse the Visa Applicant the visa;
c) 30 March 2017 - Review applicant appeared before the Administrative Appeals Tribunal (Tribunal) to give evidence and present arguments. The Tribunal also received oral evidence via conference telephone from the Visa Applicant in Albania; and
d) 8 June 2017 – The Tribunal affirms the decision not to grant the visa applicant a Partner (Provisional (Class UF) visa.
Grounds of judicial review
3) The Applicant presses the following grounds of judicial review:
i. The Tribunal committed a jurisdictional error when it asked itself a wrong question, namely whether the parties were in a spousal relationship at the time that the visa application was made. Instead the Tribunal was required to ask itself whether all the evidence, including circumstances that had arisen after the application was made, demonstrated that the parties were in a spousal relationship.
ii. The Tribunal committed a jurisdictional error by taking into account a number of irrelevant considerations that did not relate to the circumstances of the parties’ relationship.
iii. The Tribunal committed a jurisdictional error in that it construed regulation 1.15A(3) by taking into account the visa applicant’s conduct of coming to Australia on a false passport rather than construing it independently of the visa appellant’s past conduct.
iv. The Tribunal committed a jurisdictional error in that its decision lacked evident and intelligible justification and as such exhibited Li unreasonableness (Minister of Immigration and Citizenship v Li (2013) 249 CLR 332.
v. The Tribunal failed to provide procedural fairness to the applicants in that it failed to notify them that the visa applicant’s coming to Australia on a false passport and having made a protection visa application was a consideration that the Tribunal would take into account in determining this matter. The Tribunal also failed to provide the applicants with an opportunity to respond to this adverse information.
4) Please note that the sixth ground in the amended application filed 31 July 2017 (The Tribunal committed a jurisdictional error by making the decision for an improper purpose) is no longer pressed by the applicants.
Submissions
Ground 1
5) The Tribunal asked itself whether the parties were in a spousal relationship at the time that the visa application was made. Subsequently, the Tribunal determined that it was not satisfied that at the time the visa application was made the parties were in a spousal relationship. At paragraph 34 of the decision record, the Tribunal found:
“Given these findings the Tribunal is not satisfied that at the time the visa application was made the parties were in a spousal relationship.”
6) Prior to Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32; 241 FCR 121, the Department and the Tribunal have taken the position that any circumstances that have come into beingafter the time that the partner visa application was lodged could not be taken into account. However in Waensila, the Court held that proper interpretation of subclause 820.211(2)(d)(ii) is that compelling circumstances can be considered without regard to when they occurred. Therefore, the Department and the Tribunal are not confined to considering compelling circumstances that existed at the time that the application was lodged and circumstances that have arisen after the application was made can and indeed must be taken into account.
7) As such the Tribunal fell into jurisdictional error by assessing the parties spousal relationship “at the time the visa application was made” rather than assessed the applicant’s relationship up to the time of the decision (and certainly up until the time of the hearing).
Ground 2
8) The Tribunal committed a jurisdictional error by taking into account a number of irrelevant considerations that did not relate to the circumstances of the parties’ relationship. At paragraph [31] of the decision record, under the heading “conclusion”, the Tribunal stated:
“. . . However, the ‘landscape’ of this relationship is a person who wanted to come to Australia to the extent of coming on a false passport and then making a protection visa application to remain in Australia. He and Ms Spano met in a nightclub and went out together for less than one month before he was detained and ultimately removed from Australia. He was unlawfully in Australia when he met Ms Spano. The application for the visa is made within a few weeks of his deportation from Australia.”
9) According to this paragraph, the factors making up the “landscape” of the relationship include:
i.The extent that the visa applicant wanted to come to Australia;
ii.That the visa applicant came to Australia on a false passport;
iii.That the visa applicant made a protection visa application to remain in Australia;
iv.That the parties met in a nightclub;
v.That the parties went out for less than one month before the visa applicant was detained and ultimately removed from Australia;
vi.That the visa applicant was unlawful in Australia when he met the review applicant; and
vii.That the application for the visa was made within a few weeks of the visa applicant’s deportation from Australia.
10) 1.15A(2) [sic] provides that ". . . the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3)." This is also confirmed at paragraph 38 of Ali v Minister for Immigration & Anor [2018] FCCA 121. However it is submitted that how much a person wants to come to Australia, whether they previously came over on a false passport, or whether they have previously made a protection visa application, are not "circumstances of the relationship", even if the AAT have characterised them as the "landscape of the relationship". These were irrelevant considerations in determining the issue before the Tribunal.
11) FTZK v Minister for Immigration and Border Protection [2014] HCA 26; 88 ALJR 754; 310 ALR 1; 64 AAR 15 is authority that asking the wrong question or taking into account matters which are irrelevant given the language of the empowering provision and the scope and purpose of the whole Act are errors that requires the impugned decision to be set aside (as such, this case is also relevant to Ground 1 above). (Please also see Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30).
Ground 3
12) The Tribunal construed regulation 1.15A(3) by taking into account the visa applicant’s conduct of coming to Australia on a false passport (please see paragraph [31] of the decision record, under the heading ‘Conclusion’). However the Tribunal should have construed this regulation independently of the visa appellant’s past conduct.
13) BGM16 v Minister for Immigration and Border Protection [2017] FCAFC 72; 155 ALD 450 is relevant here. In BGM16, the applicant had engaged in dishonest conduct in the past. However the Court found that, despite this past dishonest conduct, 91WA needed to be construed independently of what the appellant has done. In the same way, regulation 1.15A(3) must be construed independently of the visa appellant’s past conduct, and the Tribunal fell into jurisdictional error by failing to do so.
Ground 4
14) The Tribunal committed a jurisdictional error in that its decision lacked evident and intelligible justification and as such, exhibited Li unreasonableness (please see Minister of Immigration and Citizenship v Li (2013) 249 CLR 332).
15) The decision dismissed the following evidence:
a) The review applicant had visited the visa applicant nearly every day while he was in detention between 5 August 2014 and 22 June 2015;
b) The review applicant has visited the visa applicant on five occasions since he was removed from Australia;
c) The review applicant stays with the visa applicant at a hotel when she visits, and has visited his parents;
d) The review applicant has the visa applicant’s name tattooed on her arm;
e) There is thumb-drive evidence of the review applicant’s trips to Albania;
f) The review applicant has sent the visa applicant money;
g) The review applicant and the visa applicant have been in a relationship for 3 years; and
h) There was a photo before the Tribunal demonstrating that despite their chronological age difference, the review applicant and the visa applicant appear remarkably similar in age.
16) The Tribunal also made a comment at paragraph [26] of the decision record in regards to the review applicant not always wearing her wedding ring and at paragraph [30] regarding the review applicant and the visa applicant not being concerned about having children. This reasoning regarding the wedding rings is illogical noting that many genuinely married couples forego wearing wedding rings for cultural or work safety reasons, due to allergic reactions, or for a number of other reasons. Likewise the reasoning regarding the applicants’ plan to have children is likewise illogical considering that many genuinely married couples postpone making a decision about children. Alternatively, these considerations are irrelevant considerations as discussed in Ground 2.
17) Li unreasonableness is based on the principle that unreasonableness is related to rationality and logicality. In the case of Minister of Immigration and Citizenship v Li (2013) 249 CLR 332, the High Court held that “unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”
18) The test for legal unreasonableness is whether the Tribunal’s state of satisfaction can be impeached on the ground that it “is one at which no rational or logical decision maker could arrive on the same evidence” (Minister for Immigration v SZMDS (2010) 240 CLR 611 at [130] per Crennan and Bell JJ; SZTAP v Minister for Immigration and Border Protection (2015) 238 FCR 404 at [10], [59]).
19) It is submitted to this Honourable Court that in this present case, the making of such comments and the dismissal of the evidence as mentioned above indicate that the decision lacks the necessary evident and intelligible justification. The evidence dismissed was significantly and crucially related to the subject-matter, scope and purpose of the considerations for the making of the decision.
Ground 5
20) The Tribunal failed to provide procedural fairness to the applicants. The Tribunal failed to notify the applicants that the visa applicant’s coming to Australia on a false passport and having made a protection visa application was a consideration that the Tribunal would take into account in determining this matter. The Tribunal also failed to provide the applicants with an opportunity to respond to this adverse information.
21) At paragraph [31] of the decision record, the Tribunal gave consideration to the fact that:
a) that the visa applicant came to Australia on a false passport; and
b) that the visa applicant made a protection visa application to remain in Australia.
22) SAAP v Minister for Immigration (2005) 215 ALR 162 makes it clear that failure to comply with procedural fairness can be a jurisdictional error. Furthermore, a number of cases show that is a decision maker falls into a jurisdictional error if she or he does not provide a party with the opportunity to comment on adverse information or information that affects to party’s credibility (see for example Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 84; Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212 at 222 [25]).
Ground 6
23) Please note that the applicant no longer presses ground 6 in the amened application.
Conclusion
24) The application should be allowed with costs.
Minister’s Submissions
The Minister’s submissions, filed 8th February 2018, were as follows:
1) There is before this Court an application under s. 476(1) of the Migration Act 1958 (Cth) (Act) for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 8 June 2017, by which it affirmed a decision by a delegate of the First Respondent (Delegate) to refuse to grant the visa applicant a Partner (Provisional) (Class UF) (subclass 309) visa (partner visa).
2) These submissions are filed by the Minister pursuant to the orders of the Court made on 28 August 2017. They respond to the applicant's amended application for review filed on 31 July 2017, and written outline of submissions filed on 1 February 2018.
3) The Minister submits that the grounds pleaded by the applicant do no establish jurisdictional error. For the reasons that follow, the application ought to be dismissed with costs.
Background
4) The visa applicant, Mr Pjeter Pllumbi, is an Albanian national. On 21 June 2014, the visa applicant met Ms Mirella Spano (sponsor), an Australian citizen. They were married on 14 December 2014 (whilst the visa applicant was in immigration detention). On 7 July 2015, the visa applicant applied for the partner visa on the basis of his relationship with the sponsor.
5) On 3 June 2016, the Delegate refused to grant the partner visa.
6) On 6 June 2016, the visa applicant and his sponsor (collectively, Applicants) applied to the Tribunal for review of the Delegate's decision. The Applicants' representative provided the Tribunal with further information attesting to the details of the relationship on various dates between September 2016 and June 2017. On 30 March 2017, the sponsor appeared before the Tribunal in person and the visa applicant via telephone with their registered migration agent to give evidence and present arguments.
7) On 8 June 2017, the Tribunal affirmed the Delegate's decision not to grant the applicant a partner visa.
Relevant law
8) At the relevant time, the criteria for the partner visa were set out in Part 309 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations). Clause 309.211(2) required the visa applicant to be the spouse or de facto partner of the sponsoring partner at the time of visa application. Clause 309.221(2) required the visa applicant to be the spouse or de facto partner of the sponsoring partner at the time of the Tribunal's decision.
9) The term "spouse" is defined in section 5F of the Act. Relevantly, section 5F(2) provides that a person is the spouse of another person if they:
a) are married; and
b) 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.
10) In determining whether a person is the spouse of another person, the Regulations provide that the decision-maker must consider all of the circumstances of the relationship (r 1.15A(2)), including the financial aspects of the relationship, nature of the household, social aspects of the relationship and nature of the persons commitment to each other (r 1.15A(3)).
Tribunal Decision
11) The Tribunal identified that the issue in the present case was whether the visa applicant was the spouse of the sponsor within the meaning of the Act and above regulatory criteria: Tribunal's Decision Record (DR) [7].
12) The Tribunal was satisfied, on the evidence before it, that the Applicants were married to each other as required by section 5F(2)(a): DR [8]. However, the Tribunal was not satisfied that the Applicants' circumstances supported a finding that they had a genuine commitment to a shared life as husband and wife to the exclusion of all others, or that their relationship was genuine and continuing: DR [33].
13) In coming to this conclusion, the Tribunal considered the matters set out in Regulation 1.15A(3) of the Regulations and was satisfied that:
a) the parties are married to each other (s 5F(2)(a) of the Act): DR [11];
b) the visa applicant and sponsor "go out together" and communicate regularly with one another: DR [26] and [28];
c) the sponsor visited the visa applicant while he was in immigration detention and he drew "considerable comfort from her visits": DR [28];
d) the sponsor has travelled to see the visa applicant on five occasions since his removal from Australia and has spent time with him in Albania which has included staying at a hotel with him: DR [15], [17] and [22];
e) the visa applicant's parents have met the sponsor and she has been to their house for meals. The visa applicant's uncle and his wife are similarly aware of the relationship: DR [26];
f) the sponsor has sent the visa applicant money on a few occasions: DR [20]; and
g) the sponsor may not have initially introduced the visa applicant to her family because she did wish them to meet while he was in immigration detention (which he entered a month after their relationship began): DR [27]; and
h) relationships exist between older women and younger men: DR [29].
14) However, having regard to the 'matrix' of facts in the matter, the Tribunal was not satisfied that the Applicants were committed to a shared life as husband and wife to the exclusion of all other nor was the Tribunal satisfied the relationship between them was genuine: DR [33]. In support of this conclusion, the Tribunal made the following findings:
i.there was no evidence of joint ownership of assets, joint liabilities and any legal obligations owed to the other party: DR [18];
ii.having regard to the significance of marriage, the close relationship between the sponsor and her family, and the length of the marriage (2.5 years), the Tribunal placed significant weight on the fact that the sponsor's family and friends were not aware that she is married in its assessment of the authenticity of the relationship: DR [27] and [32];
iii.the evidence provided by the parties did not support their long-term commitment to the relationship including in relation to their desires to have children: DR [28] and [29]; and
iv.while there may be good reasons for lack of social recognition of a relationship in some cases, the Tribunal was not satisfied that such reasons existed in the sponsor's case having regard to the length of the marriage and the sponsor's close relationship with her family: DR [33].
15) In light of the above, the Tribunal was not satisfied that the Applicants were in a spousal relationship for the purposes of the Act, and therefore affirmed the Delegate's decision.
Application for review
16) The application for review, brought by the sponsor, pleads five grounds of review (noting that Ground 6 has now been abandoned). In summary, it is asserted that the Tribunal:
a) asked itself the wrong question by asking whether the parties were in a spousal relationship at the time of the visa application (Ground 1);
b) took into account irrelevant considerations including the visa applicant's motivations to stay in Australia and his previous visa applications (Ground 2);
c) misconstrued reg 1.15A(3) by taking into account the visa applicant's past migration conduct (Ground 3);
d) failed to provide an 'evident and intelligible' justification in dismissing certain aspects of the evidence before it (Ground 4); and
e) failed to accord procedural fairness to the visa applicant by failing to notify him and provide him with an opportunity to respond to adverse information (Ground 5).
Consideration
Ground 1
17) By Ground 1, the Applicant asserts that the Tribunal erred by assessing the parties spousal relationship "at the time the visa application was made" rather than assessing the relationship up to the time of its decision. This ground misstates the Tribunal's correct application of the relevant statutory criteria.
18) As the Tribunal correctly noted at DR [9], it was a criteria of the grant of the partner visa that the visa applicant be the spouse or de facto partner of an Australian citizen, permanent resident or eligible New Zealand citizen, both at the time of the application and at the time of the decision: see cls.309.211 and 309.221 of sch.2 to the Migration Regulations 1994 (Cth) (Regulations). Although the Tribunal plainly had both of these criteria in mind at DR [9], it referred to cl 309.211(2) only. In the Minister's submission, the Tribunal's failure to also cite cl 309.221(2) was a mere typographical error. It cannot be said that the Tribunal failed to apply the correct test.
19) The Tribunal concluded that it was not satisfied that at the time of the visa application, the visa applicant was the spouse within the definition of spouse in s.5F of the Act having regard to all the circumstances of the relationship, including the matters set out in r 1.15A(3) of the Regulations: DR at [34]-[35]. It therefore found that he did not satisfy the time of application criterion in cl. 309.211. Accordingly, the Tribunal found it unnecessary to make any express conclusions regarding the time of decision criteria under cl 309.22. In circumstances where the relevant time of decision criteria set out under cl 309.22 first requires that the 'the applicant continues to satisfy the criterion in cl 309.211': cl 309.221, that approach was both sensible and orthodox.
20) Finally, to the extent that the Applicant's argument under Ground 1 appears to rely solely on the Full Federal Court's decision in Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32 (Waensila), it is submitted that this authority is not applicable to the present case. In Waensila the issue concerned whether there was a 'temporal limitation' on the point in time at which 'compelling circumstances', which were relied on for a waiver of various Schedule 3 criteria, must have existed. It is sufficient to note that Waensila concerned a different subclass and criterion: Partner (Temporary) (Class UK) visa and cl 820.211(2)(d), and that unlike cl 820.211(2), the relevant criteria in the present case, cl 309.211 and cl 309.221 do not contain any discretionary 'waiver' of criteria provisions on the basis of 'compelling circumstances'.
Grounds 2 and 3
21) To the extent that Grounds 2 and 3 deal with similar complaints, it is convenient to deal with them together. By these grounds, the Applicant alleges that the Tribunal's consideration of the visa applicants' migration history and the timing of the parties relationship are 'irrelevant considerations' for the purposes of r 1.15A(2), and similarly, that r 1.15A(3) "must be construed independently of the visa applicant's past conduct".
22) As the Applicant correctly points out at paragraph 10 of her written submissions, when considering an application for a partner visa based on a couple being in a spousal relationship, which requires a state of satisfaction that each of the four conditions in s 5F(2) exist, the Tribunal is obliged to consider all of the circumstances of the relationship: r 1.15(2). Although r 1.15(3) sets out a number of relevant considerations which the Tribunal is bound to take into account, those matters are not an exhaustive list of the potentially relevant matters and considerations: see MIBP v Angkawijaya [2016] FCAFC 5 (Angkawijaya) at [52].
23) In the Minister's submission, it was plainly open to the Tribunal to consider the Applicant's past migration history, the timing of the parties relationship and its duration before the visa applicant's removal from Australia (what the Tribunal termed the 'landscape' of the relationship) as each of these matters were logically probative of, and relevant to, the circumstances of the parties' relationship at the time of the visa application. Support for this position is found in the Full Federal Court's judgment in Angkawijaya.[5] Although that case related to a visa application which required consideration of a de facto relationship at the time of the decision (r 1.09A and cl 801.221 of the Regulations), it is submitted that Kenny and Griffiths JJ observations at [64(b)] are equally applicable to the relevant regulatory criteria in the present matter:
[5] See also Huang v Minister for Immigration & Anor [2013] FCCA 403 at [38], where the Court found that the Tribunal's consideration of the Applicant's migration history as a matter which caused it to doubt the genuineness of the applicant's spousal relationship was a matter that had been properly raised with the applicant, and did not give rise to a finding of apprehended bias.
"… In our view, as long as the relevant time is firmly kept in mind, we see no reason why the decision-maker should not take into account, together with all other relevant circumstances of the relationship, the motivation of one or both of the parties for entering into the relationship. However, as was emphasised by the Full Court in Dhillon at [11] per Northrop, Wilcox and French JJ, those motivations may change and the critical issue is whether or not the administrative decision-maker is satisfied that the parties are in a genuine de facto relationship as at the time of the decision." (emphasis added)
24) The relevant time in this matter was the time of the visa application, being 7 July 2015. Although the visa applicant's arrival in Australia on a false passport (on 28 February 2012) and protection visa application (March 2012) are temporally removed from the date of the visa application, these factors were considered by the Tribunal in light of the more significant issues emphasised by the Tribunal at DR [31], namely that the Applicants met in a nightclub on 21 June 2014 less than one month before the visa applicant's removal from Australia, and that the visa application was made within approximately two weeks of his removal from Australia on 22 June 2015. Given the proximity of these background circumstances to the date of the visa application, it is submitted that it was entirely open for the Tribunal to consider these matters when determining whether, at the time of application, the relationship between the parties was 'genuine' and marked by a 'mutual commitment to a shared life'.
25) Finally, it is submitted that the Applicant's reference to BGM16 v Minister for Immigration and Border Protection [2017] FCAFC 72 in support of the above complaint is inapposite. Again, that case considered a question of statutory construction relating to a different legislative provision and a different visa class. It has no bearing on the proper construction of r 1.15A(2). As submitted above, the mandatory requirement set out by that provision is expressed widely, such that the Minister must consider "all the circumstances of the relationship", including the matters set out in r 1.15A(3). It is submitted that the visa applicant's past migration history is a matter that falls within the ambit of the wording "all the circumstances of the relationship" and there was no error in the Tribunal's consideration of this issue.
Ground 4
26) By Ground 4, the Applicant asserts that the Tribunal's decision was unreasonable in the sense described in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 because the Tribunal dismissed certain aspects of the Applicants' evidence and because its decision was marked by a number of 'illogical' or 'irrelevant' considerations.
27) The Minister submits that none of the evidence listed at paragraph 15 of the Applicant's submissions was "dismissed" by the Tribunal or not considered. To the contrary, the Tribunal:
a) accepted that the sponsor visited the visa applicant nearly every day whilst he was in detention between 5 August 2014 and 22 June 2015: DR [14];
b) accepted that the sponsor visited the visa applicant on five occasions since he was removed from Australia: DR [15];
c) accepted that the sponsor stays with the visa applicant at a hotel when she visits and has visited the visa applicant's parents at their home: DR [22];
d) accepted that the sponsor has the visa applicant's name tattooed on her arm: DR [23];
e) considered the DVD and "thumb drive" evidence of the sponsor's trips to Albania;
f) accepted that the sponsor has sent the visa applicant money: DR [20];
g) accepted that the parties had been in a relationship: DR [20] and [26]; and
h) considered the 25 year old age gap between the parties, but found that this does not of itself mean that there is not a genuine relationship: DR at [29].
28) In light of the above, there is nothing in the Tribunal's decision record to suggest that the Applicant's claims and evidence were not considered or given improper weight.
29) At paragraph 16 of the Applicants' submissions, it is argued further that the Tribunal's decision was marked by irrationality or illogicality to the extent that the Tribunal:
a) noted that the sponsor was not wearing her wedding ring in some photographs;
b) made a finding that the sponsor did not seem to meaningfully engage with the difficulties that may arise from attempting to have a child at 50 years of age.
30) It should be borne in mind that, as the Applicant notes in her submissions, the concept of irrationality or illogicality is predicated upon a finding that “no rational or logical decision maker could arrive at on the same evidence”; if reasonable minds can differ on the conclusions to be drawn from probative evidence then a decision cannot be said to be irrational: per Crennan & Bell JJ in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 at 648; SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58 at [15].
31) That is plainly not the case here. In respect of the wedding ring, it appears that the Tribunal commented on this fact in the course of a paragraph that is otherwise broadly in favour of the Applicant. It does not appear to have played any material role in the Tribunal’s conclusions or dispositive findings. In respect of the findings about the issue of children, the Applicant herself drew attention to this issue in a further submission given to the Tribunal in an e-mail dated 11 May 2017: CB 439. While the Tribunal’s conclusion about the Applicant’s evidence is open to disagreement it was plainly available: there is nothing illogical in the suggestion that a failure to engage with a potential consequence of the disparity in age was something that a genuine couple might have addressed (in circumstances where there was no clear evidence that the applicant did not want to have children).
Ground 5
32) It is submitted that no error is disclosed in the Tribunal's treatment of the Applicant's migration history because the obligation in s 359A(1) to provide particulars of any adverse information did not apply by reason of the exception in subsection 359A(4)(b) of the Act.
33) Section 359A(1) of the Act provides that the Tribunal must:
a) put to an applicant, in writing, information which may be the reason, or part of the reason, for affirming the decision on the review;
b) ensure, as far as is reasonably practical, that an applicant understands why it is relevant to the review and the consequences of it being relied on; and
c) invite an applicant to comment on or respond to that adverse information.
34) Section 359A(4) sets out the information to which section 359A(1) of the Act does not apply. Relevantly, this includes information the applicant gave for the purposes of the application for review: s 359A(4)(b) of the Act.
35) In its concluding paragraphs at DR [32]-[35], the Tribunal considered that the visa applicant had, amongst other things, previously arrived in Australia on a false passport, and made a protection visa application in order to remain in Australia. It may therefore be inferred that this information (described by the Tribunal as the 'landscape' of the relationship) formed the basis, in part, for the Tribunal's finding that the relationship between the visa applicant and her sponsor was not genuine.
36) However, that exact information was recorded in the Delegate's decision as follows:
"Departmental records show that the applicant previously applied for a subclass 571 Student visas in May and August 2010. Both applications were refused at the Australian Embassy in Athens in July 2010 and December 2010 respectively. Following the rejection of these visas, on 29 February 2012, the applicant arrived in Australia on a fraudulently altered Italian passport in the name of Mr Enrico Maria de Forni with the date of birth of 9 September 1979. The original photo for the passport owner had been replaced with the applicant's photo. The rightful owner of this passport had been granted a travel visa to enter Australia. Upon arriving in Australia the applicant was not immigration cleared and was consequently detained. The applicant lodged a Protection Visa application on 02 March 2012 that was subsequently refused on 25 May 2012. He was later granted a Bridging Visa E on 13 March 2013. The applicant became unlawful on 13 September 2013. On 5 August 2014 the applicant was re-detained and removed from Australia under section 198(2) of the Migration Act 1958 on 22 June 2015". (Emphasis added).
37) A copy of the Delegate's decision record was attached to the application for review lodged with the Tribunal (at CB 256) and the sponsor (through his migration agent) lodged the application. Accordingly, as is well-established, it must follow that the relevant information was given by applicant to the Tribunal and thereby falls within the exception provided by section 359A(4)(b) of the Act.[7]
38) Accordingly, the information did not need to be the subject of the procedural fairness requirement under section 359A(1) of the Act and the ground must fail.
Conclusion
39) For the reasons set out above, it is submitted that the application should be dismissed with costs.
[7] See Minister for Immigration v Brar [2012] FCAFC 30 at [63] and [74]; Minister for Immigration v You [2008] FCA 241 [22] and [26]; ACB17 vMinister for Immigration and Border Protection [2017] FCCA 1880 (Judge Driver) at [30] - [31] in the context of s 424A., and Nguyen v Minister for Immigration & Anor [2016] FCCA 2731 at [51] and [52].
Outline of Legal Principle
By way of legal principle, I note the following.
Whatever the characterisation of either the evidence and or the processes of the Tribunal, I recall the always helpful reminder by Robertson J in SZRKT, and equally so by the Full Court in MZYTS, of the statutory task that is to be undertaken by the Tribunal.[8] For example, leaving to one side the specific factual and legislative parameters of the appeal that was before his Honour, in SZKRT, beginning at [77], respectfully with his usual pellucid clarity, Robertson J outlined the responsibilities of the Tribunal and its various functions. Thus, at [76] – [78], his Honour observed (emphasis added):
[76] I turn then to ground 3, the legal consequences of the finding that the Tribunal had given no consideration to the Punjab University transcript when it made its adverse findings.
[77] In my opinion, recent High Court authority shows that this is a case specific inquiry and it is not one which should be analysed by reference to fixed categories or formulas, to the effect that a decision within a category or formula is always or is never affected by jurisdictional error: compare Universal Camera Corp v National Labor Relations Board [1951] USSC 24; (1951) 340 US 474 at 489 per Frankfurter J, delivering the opinion of the Supreme Court. Useful for analysis though categories or formulas are, they should be seen as servants rather than masters. To proceed otherwise in the area of jurisdictional error is to look for more precision than the nature of the subject admits. In each case what the decision-maker has decided must be analysed in detail in order to arrive at the correct description of conclusion, “jurisdictional error”. …
[78] It is not, in my opinion, the case that a finding in relation to credit may never found a conclusion of jurisdictional error, particularly where a finding on credit on an objectively minor matter of fact is the basis for a tribunal’s rejection of the entirety of an applicant’s evidence and the entirety of the applicant’s claim.
[8] Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 (“SZRKT”); Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 (“MZYTS”).
Next, at [97], Robertson J said (emphasis added):
[97] In Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, the passage cited by McHugh, Gummow and Hayne JJ, with whom Gleeson CJ agreed, from Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 at 179 shows that the High Court was concerned with the results or consequences of an error of law:
If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.
Thus merely to ignore “relevant material” does not establish jurisdictional error. This is consistent with proper limits on judicial review so that fact-finding is a matter for the tribunal of fact while the Court is concerned with whether the tribunal has acted so as to warrant the conclusion that it was not performing the task conferred on it by the legislation.
At [111] and [112], his Honour further noted:
In my opinion there is no clear distinction in each case between claims and evidence: see SHKB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 545 at [24], set out at [69] above. The fundamental question must be the importance of the material to the exercise of the Tribunal’s function and thus the seriousness of any error. In my opinion the distinction between claims and evidence provides a tool of analysis but is not the discrimen itself. Further, it is important not to reason that because a failure to deal with some (insubstantial or inconsequential) evidence will, in some circumstances, not establish jurisdictional error, then a failure to deal with any (substantial and consequential) evidence will also not establish jurisdictional error.
As the Full Court said in VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [77] whether the Tribunal is obliged to consider a document or documents will depend on the circumstances of the case and the nature of the document. In my opinion, the relevant factors in relation to (corroborative) evidence include first, the cogency of the evidentiary material and, second, the place of that material in the assessment of the applicant’s claims…
And finally, at [119] – [121], Robertson J observed (emphasis added):
[119] The key features of the present case therefore are, first, that the Tribunal did not consider the Punjab University transcript and, second, the matter to which that transcript went founded the Tribunal’s rejection of the applicant’s claims, on the basis that he had been untruthful. This was not a case where the Tribunal took a nuanced approach to questions of credit by considering whether its disbelief of the applicant in one respect nevertheless did not mean that it disbelieved him generally: rather, the Tribunal’s approach was to disbelieve the applicant generally. In the former case it may more readily be seen that such a finding on credit goes only to a matter of fact and thus is quintessentially the province of the Tribunal.
[120] The Court is not involved in traversing findings of fact about the corroborative evidence because the Tribunal did not deal with it. The unexplored possibilities include that the transcript was false, that the applicant had studied the Persian language but was a bad student or had a bad memory, and that there was an ambiguity in what studying Persian meant, whether it was language or culture and history. It is for the Tribunal to deal with the material before it and to resolve any conflicts in it.
[121] To adopt the language of Buchanan J in Minister for Immigration and Citizenship v SZCOQ [2007] FCAFC 9 at [61], relied on by the Minister, these considerations bear upon the material elements which must be satisfied, or rejected, when dealing with an applicant’s claims.
In MZYTS the Full Court (Kenny, Griffiths and Mortimer JJ) made the following refined observations in relation to the characterisation of claims before the Tribunal and the process by which it is statutorily required to assess them.
First, after noting, at [31] and [32], the formal task required of the Tribunal, the Full Court noted that [simply] to refer to a “failure to consider” might not be the most apposite description of the relevant error or complaint. At [36], for example, the Court said (emphasis added):[9]
[36]… to say there has been a “failure to consider recent information” or a “failure to consider a claim” may be no more than descriptions or explanations of the manner in which the Tribunal’s task has miscarried, but it is the miscarriage of the task which constitutes the jurisdictional error.
[9] See similar comments at [46], and in further detail at [68] – [70].
Secondly, further noting the task of the Tribunal, the Full Court said, at [50]:
… The Tribunal’s reasons disclose no process of weighing evidence and preferring some over the other. In the context of two or more pieces of apparently pertinent, but contradictory, evidence an expression of a preference for some evidence over other evidence generally requires an articulation of the different effects of the evidence concerned, and then some indication as to why preference is given. All these are matters for the trier of fact….
Thirdly, at [54], the Court affirmed the following important distinction:
We also accept that a line must be maintained between a court’s emphatic disagreement with the merits of a tribunal’s reasoning process, and the identification of a level of irrationality, unreasonableness or lack of proportionality which reveals a constructive failure to exercise jurisdiction by a tribunal. That is the distinction identified in Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164 (SZJSS) at [34].
Somewhat more briefly, given that the Grounds of Review include claims of legal “unreasonableness”, and (in my words) improperly construing Regulation 1.15A(3) in the light of the evidence before the Tribunal, and in particular the conclusion of the Tribunal in relation to Mr Pllumbi coming to Australia on a false passport, I need only note the following authorities:
(a)In relation to “unreasonableness” as to “process”, and also as to “result”, and in addition to what might be respectfully described as the “usual authorities” of SZMDS and Li,[10] there is a detailed and nuanced discussion of “unreasonableness” in more recent decisions of the Full Court (accepting the various and varying legislative provisions that apply in each case) such as Minister for Immigration and Border Protection v Singh and Minister for Immigration and Border Protection v Stretton; ARG15 v Minister for Immigration and Border Protection; and Minister for Immigration and Border Protection v CRY16;[11]
(b)Principles relating to the proper consideration by the Tribunal of the evidence before it are set out by the High Court in FTZK v Minister for Immigration and Border Protection and by the Full Court in BZD17 v Minister for Immigration and Border Protection.[12]
[10] Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.
[11] Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437; Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1; ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109; Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475.
[12] FTZK v Minister for Immigration and Border Protection (2014) 310 ALR 1; BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94.
Finally, I note the relevant provisions of the Act, and from the Migration Regulations.
“Spouse” is defined in s.5F of the Act:
(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.
Regulation 1.15A(3) provides for the following matters to be considered in determining whether a person is a “spouse” for the purposes of the Act. Regulation 1.15A(3) provides:
(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.
Finally, the criteria for a partner visa are set out in Part 309 of Schedule 2 of the Regulations. Clause 309.211(2) requires the visa Applicant to be the spouse or de facto partner of the sponsoring partner at the time of the visa Application. Clause 309.221(2) requires that the visa Applicant be the spouse or de facto partner of the sponsoring partner at the time of the Tribunal’s decision.
Consideration & Determination
I begin with a general observation or two regarding the Tribunal’s decision.
First, on its face, there is a basic illogicality, but not necessarily legal illogicality, in the Tribunal’s conclusion that the parties are not in a “spousal relationship.” The philosophical illogicality arises out of the fact that, on the one hand, it was/is accepted that the parties are formally and legally married for the purposes of Australian domestic law (and to which there is no challenge), but on the other hand, for the purposes of the Act, they are not considered to be relevantly in a “spousal relationship.” Such is the wonder of legislation, especially this particular Act.
In this regard, accepting the different sections of the Act under consideration, I note the comments of the Full Court in Minister for Immigration and Border Protection v CRY16 at [67]:
… in our opinion, that the outcome is unfair “in an ordinary sense”, as accepted by Senior Counsel for the Minister, is not irrelevant to whether or not there has been legal unreasonableness in the exercise or non-exercise of statutory powers.
In my view, the Full Court’s comments in CRY16 regarding what is “unfair” in an “ordinary sense” has more than passing relevance to matters in the current matter, as noted below.
Secondly, although it is not, formally at least, a quantitative or mathematical exercise, as the Minister’s submissions make clear (at pars.13 and 14), the Tribunal found that there were 8 factors that could be said to be proper indicia of a “spousal relationship” between the parties. However, the Tribunal ultimately relied upon only 4 grounds which, it said, did not support a finding that there was a genuine spousal relationship. I come back to this curiosity of “weighing” criteria later in these reasons.
Thirdly, one view of the Grounds of Review is that they are, ultimately, related to either what “weight” the Tribunal gave to various aspects of the Applicant’s and Mr Pllumbi’s evidence (Grounds 2, 3 and 4), or what process of consideration was relevantly undertaken by the Tribunal (Grounds 1 and 5). In all such matters, the Court must be mindful to not venture into an exercise of impermissible “merits review.”
Ground 1 asserts that the Tribunal committed jurisdictional error because it asked itself the wrong question. In my view, the question, more correctly framed, is whether the Tribunal properly performed its statutory task in the circumstances of this case.
For my part, there are significant problems with the Tribunal’s approach, and in consequence, the task it actually performed. This is so for the following reasons:
(a)Whatever the nature of the question asked, a fundamental problem, in my view, is that, in forming its opinion, the Tribunal regularly slid between matters for consideration, after the Application was made, and matters that were and could only be considered for the purposes of attending to issues “at the time of decision.” The lack of precision in its approach, and eliding considerations for its specific task of making a determination, and the relevant timing to them under the Regulations, indicated a significant lack of clarity regarding the particular, statutory task it was required to perform;
(b)For example, at [31] – [34], the Tribunal set out a summary of what it called “the landscape of the relationship” and the “matrix of circumstances.” The boundaries and incidents of this “landscape” and “matrix” were canvassed briefly in the course of its reasons, though much of this discussion was considered to be “not determinative”, or words to that effect;[13]
(c)More particularly, in my view, there is a significant disjuncture between the Tribunal’s discussion at [30] and its finding at [32]. At [30], the Tribunal recounts the discussion with the parties regarding their “intention” to have children. Various, general answers are recorded, which I have noted earlier in these reasons. Then at [32], the Tribunal finds that there was “lack of evidence of any meaningful discussion …” in relation to the issue of whether the couple wish to have children;
(d)For my part, leaving to one side the intrusion into such private matters, (i) the Tribunal never explained (as recorded in its reasons) what criteria it used to determine what was, and what was not, a “meaningful discussion” about this intimate and personal subject; (ii) nor did the Tribunal, on the face of its reasons, canvass other “relevant” considerations, such as that the parties might choose not to have children, or in fact be unable to have children. These omissions regarding other considerations, and a specific reference point or criterion as t what constitutes a “meaningful discussion”, against which the parties, the Tribunal, and all others reviewing the decision, might reasonably expect to comprehend the decision, in my view, is a fundamental flaw with the decision;
(e)Further, although there is reference to (i) a general discussion about the subject of children, and (ii) to the age of Ms Spano, it never goes beyond the most general. For example, the Tribunal never addresses, other than quite obliquely, any of the other related considerations, such as the generally inherent unlikelihood of a woman in her 50s conceiving a child, or the health and other risks to the woman and the child should such a pregnancy ensue. Such matters are never raised, and in consequence it might reasonably be asked whether, in not having done so, the Tribunal itself did not engage in a “meaningful discussion” with the parties about children;
(f)In passing, I simply note that, among the materials in the Court Book, there are references to, for example, the marriage between the French President, Mr Macron, and his older wife, Brigitte.[14] It is a matter of public record that Mr Macron and his Wife do not have any children from their relationship. As it happens, the age difference between Mr Macron and his Wife is almost identical to the age difference between the parties in the current matter;
(g)However, and to be a tad repetitive, the main difficulty in the present matter, in my view, is the fact that the Tribunal did not identify what the specific criteria were that would make such a discussion relevantly “meaningful”. Yet it used the alleged “lack of evidence” of such a “meaningful discussion” as a factor for determining that the couple were not in a committed spousal relationship. This was in circumstances where the Tribunal did note that it accepted that there was a discussion about children (at [30] and [32]). What changed the discussion recorded at those paragraphs of its reasons from simply being a “discussion” to the Tribunal finding that is was not a “meaningful discussion” was never addressed. In my view, this was a relevant jurisdictional error on the part of the Tribunal. In my view, the Tribunal failed in its proper and assigned statutory task.
[13] See for example, [20] – [21], and [29] of the Reasons.
[14] CB 440.
For the above reasons, Ground 1 is made out.
Grounds 2 and 4 traverse similar matters and may be treated together. They refer to the Tribunal taking into account certain “irrelevant considerations” and [thereby] coming to a conclusion that “lacked evident and intelligible justification”, as this latter phrase is used by the High Court in Li.[15]
[15] See in particular the discussion in the plurality judgment of Hayne, Kiefel and Bell JJ at [63] – [76]. See also the respectfully magisterial summary by Allsop CJ of Li and a large number of other decisions that have discussed legal unreasonableness in Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 at [4] – [13]. See also in the same decision of Stretton, the [respectfully] equally instructive discussion by Griffiths J at [50] – [62], with which Allsop CJ agreed.
More specifically, as already observed, the Minister’s submissions helpfully highlight (at par.13) the 8 matters that the Tribunal found supported the establishment of a spousal relationship for the purposes of the Act and Regulations. Paragraph 14 of the Minister’s submissions helpfully noted the 4 matters that the Tribunal considered to be determinative of there not being such a relationship. One matter, which in modern society might be considered significant, which is noted by the Tribunal at [23] but which is not referred to at all by the Tribunal in its considerations – pro and con – the spousal relationship, is the fact that Ms Spano has tattooed on her arm the name of Mr Pllumbi. However, prosaic or much more, not to have any specific regard to such a physically enduring indicia of commitment strikes me as rather odd, to say the least. Put another, perhaps more legally appropriate, way: why did the Tribunal not ask itself the basic question – “why would anyone have themselves tattooed, if there was not a significant commitment to the person named in the tattoo?” In my view it should have been considered.
Moreover, whilst it is a simple fact of life that many people do not wear wedding rings, a fact not commented on by the Tribunal, there was no requirement (legal or one of custom) for Ms Spano to get a tattoo. Indeed, given the cost, the relative “pain” of getting a tattoo, its enduring public legacy, and that it was not a discreetly placed tattoo, hidden from prying or inquiring eyes, in my view it is quite remarkable that the Tribunal placed emphasis on the parties lack of wedding bands, but did not mention the tattoo at all as a consideration or factor or indicator of “commitment”.
Further, having regard to my earlier comments in relation to the error committed by the Tribunal in drawing an adverse conclusion from the parties having (or not having) children, this consideration ought now be removed from the 4 factors the Tribunal used to found its decision adverse to the Applicant. That being so, the Tribunal’s reasons then require it to rely upon only 3 considerations to support its adverse conclusion about there being a spousal relationship. This is to be contrasted with the 8 considerations it found to establish that there was one. In my view, having regard to the circumstances of Mr Pllumbi – who was in immigration detention and then deported from Australia – it is more than reasonable or at least at one level understandable that Ms Spano does not explain further to her family that she is married to Mr Pllumbi and that he is otherwise, or simply, “someone special” ([23]). In my view, I do not find that the Tribunal’s list of considerations to be legally impermissible, which leads to the result that Ground 2 is not made out.
However, measured against the principles in Li, in my view, the fact that the Tribunal found there to be 8 indicia of a spousal relationship (plus the unremarked but remarkable tattoo), compared to the 3 or even 4 reasonably explicable contra indicia, suggest that the decision that there is no spousal relationship, in the result, is legally “unreasonable. Thus Ground 4 is made out.
Ground 3 refers to the Tribunal taking into account that Mr Pllumbi previously came to Australia on a forged passport. Among other things, the Minister relies upon the Full Court decision in Minister for Immigration and Border Protection v Angkawijaya.[16] The Applicant relies upon the High Court decision in FTZK v Minister for Immigration and Border Protection.[17] In my view, both decisions assist the Applicant.
[16] Minister for Immigration and Border Protection v Angkawijaya (2016) 236 FCR 303.
[17] FTZK v Minister for Immigration and Border Protection (2014) 310 ALR 1.
For example, after noting his agreement with the joint judgment of Kenny and Griffiths JJ in Angkawijaya, at [2] and [3] Allsop CJ outlined the task of the Tribunal as follows:
[2] The task of the delegate and the Tribunal was not straightforward. By reference to the terms of the Migration Act 1958 (Cth) and the regulations thereunder, a value judgment was required to be formed about whether two people had a mutual commitment to a shared life to the exclusion of all others that was genuine and continuing. That task involved careful and sensitive consideration of the evidence of the human relationship presented to the Tribunal. The task was a mixture of fact-finding and evaluative characterisation. If I may say so, the Tribunal’s reasons reflected a close and conscientious attention to that task.
[3] In my respectful view, however, the Tribunal elevated love or tender emotion as a factor in the evaluation that does not find reflection in the Act, regulations or proper evaluative process thereunder. That is not to say that such considerations are not relevant and, especially if found to be present, may not be determinative. To love and be loved is the beauty that founds many, but not all, human relationships in which there is a commitment to live as a couple. The approach of the Tribunal at [103] of its reasons may be seen to posit a false dichotomy: between commitment to an agreement for services to meet needs, and commitment to a relationship, as necessarily exclusive of each other. In searching for the factor that distinguished the two parts of the posited dichotomy it appears (as the reasons of Kenny and Griffiths JJ demonstrate) that love in an emotional or romantic sense rose as the discrimen. A couple may have a commitment to each other to a shared life together as partners in the absence of what one might call emotional or romantic love. That is not to say that a mere agreement for money or material support in exchange for being in someone’s company and for tending to their needs (domestic and personal) is a mutual commitment to a shared life as partners.
At [52] and [53], Kenny and Griffiths JJ observed (emphasis in original):[18]
[52] As emphasised above, however, these matters and considerations are not an exhaustive list of the potentially relevant matters and considerations. The Minister’s task under s 65 of the Act is subject to an overarching obligation imposed by reg 1.09A(2) to consider all the circumstances of the claimed de facto relationship. There is no basis in the legislative scheme to conclude that those circumstances do not include a consideration of whether or not there is love and affection in a claimed de facto relationship. In a particular case, for example, the evidence may suggest that the love and affection between the couple is very strong: that would be relevant to the genuineness and continuing nature of the relationship, as well as to the question of there being a mutual commitment to a shared life.
[53] That is not to say, however, that the existence or absence of these aspects of a relationship is determinative. There may well be love and affection present in a relationship yet the Minister may not be satisfied that the visa should be granted because, having regard to the evidence relating to some other matter or consideration (whether or not specified in reg 1.09A(3) and as long as the matter or consideration is relevant to the circumstances of the relationship), the relevant criteria for the grant of the visa are not met to the Minister’s satisfaction at the time of the decision. Likewise, because the existence of love and affection is not determinative of the question whether there exists a de facto relationship at the relevant time, its absence is not necessarily fatal to the Minister’s favourable consideration of a partner visa application.
[18] See also their Honours’ comments at [[60] – [64] regarding the Tribunal’s treatment, in the case before the Full Court, of the “ambivalence” of the parties towards their mutual commitment, and the cases discussed there regarding “an evaluation, based on human experience, understanding and perception of the available spectrum of potentially relevant circumstances of each particular case.”
In FTZK v Minister for Immigration and Border Protection, at [91], Crennan and Bell JJ said (in an admittedly different jurisprudential context) (emphasis added):
… the Tribunal took into account (and treated as determinative) the timing of the appellant's departure from the PRC, lies told by the appellant both to obtain a visa and to obtain protection under the Convention, and the appellant's conduct in escaping from detention and living in Australia unlawfully. An equally probable explanation for all of these matters is a desire on the part of the appellant to live in Australia. That desire is not unique to the appellant, particularly as he has been found to fall within Art 1A(2) of the Convention. A correct application of Art 1F(b) to the facts required the Tribunal to ask of the evidence before it whether that evidence was probative of "serious reasons for considering" that the appellant had committed one or more of the alleged crimes.
In the present matter, in my view, the Tribunal did not relevantly ask itself the correct, or at least, the alternative, question namely, was there a relevant, innocent and or “equally probable explanation” for attempting to enter Australia using a forged passport as suggested by the High Court in FTZK. Quite curiously, the Minister’s submissions do not address this decision even though it is clearly referred to in the Applicant’s submissions.
In my view, the Tribunal did not relevantly ask itself or Mr Pllumbi (or the Applicant for that matter) whether there was an “equally probable explanation” for using a forged passport, such as his “desire to live in Australia.” Not to have done so, or at least not to have considered such an alternative, resulted in the Tribunal committing jurisdictional error.
In relation to Ground 5, it is sufficient to record that I agree with and accept the Minister’s submissions. It was something of which the Applicant was relevantly aware.
For the reasons given, in my view the Tribunal has committed a number of jurisdictional errors. As such, its decision should be brought into this Court and a writ of certiorari issue to quash it. The matter should be remitted to the Tribunal and pursuant to a writ of mandamus the matter should be determined according to law.
Costs should follow the event, whereby the Minister is to pay the Applicant’s costs in accordance with Schedule 1 Part 3 of this Court’s Rules.
I certify that the preceding seventy-three (73) paragraphs are a true copy of the reasons for judgment of Judge Neville
Date: 3 August 2018
[6] CB 236 (Delegate's decision record, p 5-6)
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