Sun v Minister for Immigration
[2016] FCCA 2952
•17 November 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SUN v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 2952 |
| Catchwords: MIGRATION – Administrative review – partner visa – no jurisdictional error – application dismissed – applicant pay the respondent’s costs. |
| Legislation: Migration Act 1958 (Cth), s.5F Migration Regulations 1994(Cth), reg 1.15A |
| Chey v Minister for Immigration and Citizenship [2007] FCA 871 Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184 |
| Applicant: | JIANFENG SUN |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | BRG 468 of 2016 |
| Judgment of: | Judge Vasta |
| Hearing date: | 14 November 2016 |
| Date of Last Submission: | 14 November 2016 |
| Delivered at: | Brisbane |
| Delivered on: | 17 November 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr Black |
| Solicitors for the Applicant: | Refugee And Immigration Legal Service |
| Counsel for the Respondents: | Mr McGlade |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The Application filed on 26 May 2016 as amended on 12 September 2016 be dismissed.
The Applicant pay the First Respondent’s costs of and incidental to the application fixed in the sum of $7206.00
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG468 of 2016
| JIANFENG SUN |
Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By application filed on 26 May 2016, the Applicant, Jiangfeng Sun, seeks judicial review of a decision of the Administrative Appeals Tribunal (“AAT”) which in turn affirmed a decision of the Minister not to grant the Applicant a partner Visa.
To obtain such a Visa, the key criteria that had to be satisfied was that the Applicant was the “spouse” of a sponsor at the time the application was made and continued to be the spouse of the sponsor through to the time of the decision. However, there is an exception to this. If the Applicant could show that, at a time that she was the spouse of the sponsor, she had suffered family violence committed by the sponsor and that this was the reason that the relationship no longer existed, then she would still satisfy the definition of “spouse”.
Background
The Applicant is a citizen of China. On 26 March 2014, she applied for a partner Visa. She applied on the basis of her relationship with Anthony Brian Threlfo who was her sponsor. On 13 June 2014, a delegate of the Minister refused to grant the Visa. This was on the basis that the Applicant did not meet the definition of “spouse” under the Migration Act 1958 (Cth) (“the Act”) and therefore the delegate wasn’t satisfied that she therefore met the criterion.
On 26 June 2014, the Applicant applied to the Tribunal for a review of the decision. During the Tribunal proceeding in 2016, she accepted that her relationship with the sponsor had come to an end. However she asserted that she still met the relevant criterion because her relationship was still on foot when she made the application for the Visa and that it only came to an end because she now had a domestic violence order. This order had been made of the Redcliffe Magistrates court.
The Tribunal acknowledged that the requirement for establishing “family violence” was met but pointed out that for this to be established it also needed to be shown that the violence that occurred during the existence of a “married relationship”.
Legislative Requirements
The Tribunal was concerned to establish that there was a spousal relationship between the Applicant and her sponsor.
Section 5F of the Act defines spouse in this way:
“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.”
Regulation 1.15A of the Migration Regulations 1994 (Cth) relevantly states:
“…
(2) If the Minister is considering an application for:
(a) a Partner (Migrant) (Class BC) visa; or
(b) a Partner (Provisional) (Class UF) visa; or
(c) a Partner (Residence) (Class BS) visa; or
(d) a Partner (Temporary) (Class UK) visa;
the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).
(3) The matters for subregulation (2) are:
(a) the financial aspects of the relationship, including:
(i) any joint ownership of real estate or other major assets; and
(ii) any joint liabilities; and
(iii) the extent of any pooling of financial resources, especially in relation to major financial commitments; and
(iv) whether one person in the relationship owes any legal obligation in respect of the other; and
(v) the basis of any sharing of day-to-day household expenses; and
(b) the nature of the household, including:
(i) any joint responsibility for the care and support of children; and
(ii) the living arrangements of the persons; and
(iii) any sharing of the responsibility for housework; and
(c) the social aspects of the relationship, including:
(i) whether the persons represent themselves to other people as being married to each other; and
(ii) the opinion of the persons' friends and acquaintances about the nature of the relationship; and
(iii) any basis on which the persons plan and undertake joint social activities; and
(d) the nature of the persons' commitment to each other, including:
(i) the duration of the relationship; and
(ii) the length of time during which the persons have lived together; and
(iii) the degree of companionship and emotional support that the persons draw from each other; and
(iv) whether the persons see the relationship as a long-term one.”
Findings of the Tribunal
The Tribunal found that the Applicant had come to Australia to spend time with her daughter. The Tribunal found that the Applicant decided that she preferred living in Australia. The Tribunal found that she then went about finding a partner, who could have been anyone, who would sponsor her for a Visa.
The Tribunal found that, having located her sponsor, the Applicant went about taking steps and engaging in activities for the sole purpose of obtaining a partner Visa. This included living with the sponsor, engaging in social activities with the sponsor, declaring their relationship to others and entering into joint financial arrangements.
But most importantly, the Tribunal found that the Applicant did not ever have any commitment to the relationship, but rather her sole commitment was to obtaining a partner Visa.
Having made those findings, it was a simple step for the Tribunal to then conclude that the Applicant was not a “spouse”.
Grounds of this application
The Applicant claims that this decision has been infected by jurisdictional error. In the amended application that was filed on 17 September 2016, the Applicant raises two grounds. These are:
“1. The Administrative Appeals Tribunal misapplied and/or wrongly interpreted the provisions concerning spouse visas in the Migration Act 1958 and Migration Regulations 1994, in that:
(a) The Tribunal wrongly proceeded on the basis that it had to be satisfied that there was some level of love or attraction between the parties, and in doing so relied on findings that the Applicant has a ‘lack of appreciation of what attracted her to the sponsor’ and that it was ‘unclear…why the applicant chose the sponsor and not any other person’.
(b)The Tribunal wrongly proceeded on the basis that the Applicant’s desire and commitment to obtain a visa and to remain in Australia could not amount to a commitment to the sponsor or the relationship.
(c) The Tribunal wrongly proceeded on the basis that the social, financial and other circumstances of the relationship could not support a finding of a ‘married relationship’ unless those circumstances were specifically representative of a commitment to that relationship.
4. The Administrative Appeals Tribunal failed to take into account relevant considerations or failed to consider relevant material; namely;
(a) The claimed violence or abuse of the Applicant by the sponsor, not for the purposes of r 1.23 of the Migration Regulations 1994, but as required by reg 1.15A(2) or (3).
(b) The nature of the household, including the living arrangements and any sharing of the responsibility for housework, as required by reg 1.15A(3)(b).
(c) The physical or sexual aspects of the relationship, as required by reg 1.15A(2).
(d) The duration of the relationship and the length of time during which the parties lived together, as required by reg 1.15A(3)(d).”
Discussion on Ground One
As was said during the course of the hearing, the problem with this ground is that it focuses upon the individual findings of the Tribunal and seeks to attack those findings. However, these findings were not made in isolation. They are similar to the way in which a Court approaches circumstantial evidence; that is, where a single thread may be unable to support a weight, many threads twined together to form a rope will support that weight.
In this case, there were many such “threads”. The Applicant has chosen to focus on three particular threads.
It is true that there does not need to be illustrated some level of love or attraction between parties to show that a relationship exists. However, this is but one aspect of whether a relationship exists. It cannot be determinative, in and of itself, as to whether a relationship exists.
Similarly, even though an Applicant may have a desire and commitment to obtain a Visa so they can remain in Australia, that does not equate to there not being a commitment to the sponsor or the relationship. Once again it is a factor to be taken into account but does not, in and of itself, lead to any conclusion as to the nature of the relationship.
Also similarly, the social, financial and other circumstances of the relationship may not support a finding that there is a “married relationship” unless those circumstances were specifically representative of a commitment to the relationship. However, this again is just but one of the factors to take into account.
The reasons of the Tribunal illustrate that, on the whole of the evidence, a finding that the relationship between the sponsor and the Applicant was not a spousal one.
There were a number of aspects which, when reviewed together, lead to the overall conclusion that the Tribunal made. These included:-
a)The Applicant had difficulty explaining what it was about the sponsor that she found attractive and what made her decide that he was the right person for her.
b)The Applicant’s grasp of the English language was extremely limited and she was unable to communicate with the sponsor in any meaningful way;
c)There was great haste in the relationship. The parties met in late 2013 and entered into a committed relationship in January 2014 which was 10 days after the Applicant made her Visa application;
d)The Applicant came to Australia with a “free to marry” notarised certificate. This seems strange when one considers that the Applicant said that she was not looking for any life partner since the death of her husband 10 years before;
e)The receipts that the Applicant produced to show a joint financial relationship, were for a very small purchases;
f)The Applicant had given vague and “untruthful” evidence about the joint bank account. It seems this bank account was opened before there was any commitment to a relationship by either the Applicant or the sponsor;
g)The Applicant had no knowledge about the amount of rent to be paid on the premises that she shared with the sponsor;
h)Whilst the Applicant and the sponsor did socialise together, the Applicant had no recollection of who the friends of the sponsor actually were;
While it is possible to attack any one of those particular aspects highlighted by the Tribunal, it is the force of the combination of all those aspects that leads to the conclusion that the Tribunal made.
Therefore, I do not find that there is any jurisdictional error that has been identified in ground one.
Discussion on Ground Two
This ground is a little more troubling. A jurisdictional error will occur if a Tribunal has failed to take relevant circumstances into account. This means that if a Tribunal fails to consider the matters which they are mandated to consider, then such failure will be a jurisdictional error.
As has been seen by a perusal of reg.1.15A(2), the legislation says that “the Minister must consider all of the circumstances of the relationship, including the matters set out in sub regulation (3)”. This means that the Tribunal had an obligation to consider all of those matters in reg.1.15A(3).
The Applicant submits that there is no evidence that the Tribunal has considered “the nature of the household” or “the duration of the relationship”, “the length of time during which the persons lived together” and “the degree of companionship and emotional support that the persons true from each other”.
As these aspects were mandatory, the Applicant submits that a failure to consider them amounts to a jurisdictional error. I agree that a failure to consider those aspects would amount to a jurisdictional error. However, the question is “did the tribunal consider those aspects or not?”.
From a reading of the reasons of the Tribunal, it can be seen that there has been no direct reference to this aspect of the regulation. Whilst the Tribunal needed to set out, in its decision, the findings on any material questions of fact, the Minister submits that the Tribunal does not have to specifically mention every aspect of the sub regulation for it to show that they have “considered all of the circumstances of the relationship including the matters in the sub regulation”.
What the Tribunal did say in the last two sentences of paragraph 6 of their reasons was this:
“In forming an opinion as to these matters, regard must be had to all of the circumstances of the relationship. This includes evidence of financial and social aspects and the nature of the parties’ household and their commitment to each other as set out in r.1.15A(3)”
On a perusal of the court book, there were submissions from the Applicant’s representative as well as other evidence that touched upon all the aspects of reg.1.15A(3).
The Tribunal stated at paragraph 26 that it “has had regard to all the aspects of the relationship”. The Tribunal then went on to explain what matters that the Tribunal accepted and what its concluded view was. At paragraph 27, the Tribunal said that it “acknowledges the applicant’s written submission of 18 April 2016”.
In my view, these statements by the Tribunal indicate that they have considered the matters in reg.1.15A(3) without specifically stating them. The question is whether such statements are sufficient to illustrate that the aspects have been definitely considered.
In Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184 at paragraph 47, the Court said:-
“47 The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.”
In Chey v Minister for Immigration and Citizenship [2007] FCA 871 at paragraphs 51 and 52, the Court said:
“51 The Tribunal made no finding about "any joint responsibility for care and support" of a child, of the kind that might result from a consideration of this particular matter. It does not, however, necessarily follow from this that the Tribunal did not address this specific matter, although the omission may support such a conclusion. As Dowsett J said in Davis v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 686 at [35], reg 1.15A(3) does not require the Tribunal to make specific findings concerning the matters to which it refers. Whether the omission is indicative of jurisdictional error depends very largely on the circumstances of each case.
52 Zhang is illustrative of a case in which the failure to make relevant findings did not lead to a holding that the decision-maker had failed to take into account the requisite matters: see Zhang at [19]-[20]. The decision shows that it is unnecessary for a decision-maker to "laboriously evaluate seriatim each of the considerations in reg 1.15A(3)". In that case, it was enough that the Tribunal considered the relevant evidence under the topics referred to in the regulation (as the Tribunal did in the present case).”
To my mind, when the Tribunal said that it had “regard to all the aspects of the relationship” and that it “acknowledged the applicants written submission”, it therefore took into consideration all of the matters in reg.1.15A(3) without the need to list those considerations.
Therefore I find that the Tribunal did take into account all relevant considerations. Having done that, there is no jurisdictional error.
Conclusion
I dismiss the application with costs fixed in the sum of $7,206.00.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Vasta
Date: 17 November 2016
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