SUNAR v Minister for Immigration

[2015] FCCA 2233

FEDERAL CIRCUIT COURT OF AUSTRALIA

SUNAR v MINISTER FOR IMMIGRATION [2015] FCCA 2233

Catchwords:
MIGRATION – Application for judicial review of decision of a delegate of the first respondent not to grant the applicant a New Zealand Citizen Family Relationship (Subclass 461) visa (visa) – delegate determined application for the visa on the basis that the delegate was required to consider the matters specified in reg.1.15A(3) of the Migration Regulations 1994 (Cth) – whether the delegate’s so deciding resulted in the delegate making a jurisdictional error – whether the delegate failed to consider information that was significant – whether delegate acted irrationally – jurisdictional error found.

Legislation:

Migration Act 1958 (Cth), s.5F

Migration Regulations 1994 (Cth), reg.1.15A , cl.461.212 of Sch.2

Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163
Kirk v Industrial Relations Commission (NSW) & Anor [2010] HCA 1; (2010) 239 CLR 531
Minister for Aboriginal Affairs & Anor v Peko-Wallsend Ltd & Ors [1986] HCA 40; (1986) 162 CLR 24
Minister for Immigration and Border Protection v Lesianawai & Anor [2014] FCAFC 141; (2014) 227 FCR 562

Minister for Immigration and Border Protection v SZSNW [2014] FCAFC 145

Minister for Immigration and Citizenship v SZRKT & Anor [2013] FCA 317; (2013) 212 FCR 99

Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323

Applicant: DASHAMI SUNAR

Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

File Number: SYG 817 of 2014

Judgment of: Judge Manousaridis

Hearing date: 28 October 2014

Delivered at: Sydney

Delivered on: 21 August 2015

REPRESENTATION

Counsel for the Applicant: Mr J R Young

Solicitors for the Applicant: G&S Law Group

Counsel for the Respondent: Mr J Smith

Solicitors for the Respondent: DLA Piper Australia

ORDERS

1. The decision of the delegate of the respondent made on 6 February 2014 not to grant the applicant a New Zealand Citizen Family Relationship (Subclass 461) visa is quashed.

2. The respondent consider according to law the application made by the applicant on 23 December 2013 to the respondent for the granting of a New Zealand Citizen Family Relationship (Subclass 461) visa.

3. The respondent pay the applicant’s costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 817 of 2014

DASHAMI SUNAR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant, who is a national of Nepal, applies for judicial review of a decision made by a delegate of the respondent (Minister) to refuse to grant the applicant a New Zealand Citizen Family Relationship (Subclass 461) visa (Family visa). The delegate refused to grant the applicant the Family visa because the delegate was not satisfied the applicant was “in a genuine and ongoing spousal relationship with a New Zealand citizen”.[1]

   [1] CB104

Background

1. To have been entitled to a Family visa, the applicant had to satisfy the criteria specified by cl.461.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations) at the time the delegate decided the application. At that time, cl.461.212 provided, among other things, that an applicant needed to be a “member of the family unit” of a “person who is in Australia as the holder of a Subclass 444 (Special category) visa”. The expression “member of a family unit” is defined in reg.1.12(1)(a) of the Regulations to include “spouse”.

2. Under s.5F(1) of the Migration Act 1958 (Cth) (Act), a person is the spouse of another person if the persons are in “a married relationship” as provided for in s.5F(2). Under s.5F(2), 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 live together, or do not live separately and apart on a permanent basis.

3. Subsection 5F(3) of the Act provides that regulations may be made in relation to the determination of whether one or more of the conditions in s.5F(2) of the Act exist. Regulations have been made, and these are to be found in reg.1.15A of the Regulations. Subreg.1.15A(2) provides that, when considering applications for the classes of visa identified in reg.1.15A(2), the Minister “must consider all of the circumstances of the relationship, including the matters set out in subregulation (3)”. The classes of visa identified in reg.1.15A(2) do not include the Family visa. Subreg.1.15A(4) provides, however, that if the Minister is considering an application for a visa of a class other than of a class mentioned in reg.1.15A(2), the Minister may consider any of the circumstances mentioned in reg.1.15A(3).

4. In support of her application, the applicant included a certificate of marriage. The certificate showed that the applicant was married to a citizen of New Zealand (NZ citizen), and that the marriage occurred in Nepal on 18 October 2011. There is no question that the NZ citizen is the holder of a Subclass 444 (Special category) visa. The applicant also supported her application with a statement from the NZ citizen.

5. In that statement, the NZ citizen, who is from Nepal, said that he and the applicant entered into an arranged marriage in Nepal in 1995. The NZ citizen travelled to Australia without the applicant and in March 1998 met another woman who is a citizen of New Zealand. In 2001 the NZ citizen married the woman, and had a child. In 2005 the NZ citizen returned to Nepal for the purposes of applying for a partnership visa. The NZ citizen’s migration lawyer, however, failed to lodge the documents. On the application of his New Zealand wife, the NZ citizen was granted a resident visa in New Zealand, and the NZ citizen arrived in New Zealand. The NZ citizen’s wife and daughter, however, did not stay in New Zealand with him. In 2010 the NZ citizen obtained New Zealand citizenship, but, by that time, his New Zealand wife had entered into a new relationship in Australia. The NZ citizen and his New Zealand wife divorced on 20 May 2011. The NZ citizen returned to Nepal and on 18 October 2011 he remarried the applicant. He then returned to New Zealand and, on 7 October 2012, the NZ citizen came to Australia.

Delegate’s decision

1. The delegate first noted that the applicant and  the NZ citizen “have provided evidence of having entered into a marriage recognised as valid for the purposes of Migration Act 1958, and as such, do not meet the definition of ‘spouse’ set out in sub-regulation 1.15A(2)”.[2] This passage makes no sense if taken literally. It is tolerably clear, however, that the delegate considered that she had to determine the application on the assumption that reg.1.15A(2) of the Regulations applied. That is apparent from the following passage from the delegate’s reasons for decision:[3]

   The relationship has therefore been considered against the requirements of sub-regulation 1.15A(1A) with regard to the circumstances listed in sub-regulation 1.15A(3)

   Sub-regulation 1.15A(3) lists a number of circumstances that must be considered in forming an opinion as to whether two persons are in a married relationship. The relationship between the Applicant and the New Zealand citizen has been considered in regard to these circumstances.

   [2] CB103

   [3] CB103

2. The delegate was not satisfied the applicant was “in a genuine and ongoing spousal relationship with a New Zealand citizen”.[4] The delegate relied on the following matters:

   a)There was no evidence of joint purchases, joint ownership, joint bank accounts, or joint liabilities.

   b)The applicant and the NZ citizen had not lived together for a significant period, and no evidence of the nature of their household had been provided.

   c)The applicant provided no photographs from the applicant’s wedding with the NZ citizen, or photographs of the applicant and the NZ citizen in social settings. The applicant also provided no divorce certificate of the applicant’s first marriage with the NZ citizen.

   d)There was no evidence of telephone calls or other correspondence between the applicant and the NZ citizen, or any explanation of how they kept in touch while the NZ citizen was in Australia after the wedding.

   [4] CB104

Grounds of review – applying incorrect regulation

1. The amended application for review states six grounds with ground 5 being the one most firmly pressed:

   The respondent made jurisdictional error in relation to the legal requirement imposed on it by Regulation 1.15A of the Migration Act 1994.

2. The essence of this ground, as developed by the applicant’s counsel, is that the delegate incorrectly applied reg.1.15A of the Regulations, and that constituted a jurisdictional error. Counsel submitted that the delegate incorrectly considered that she was required to take into account each of the matters specified in reg.1.15A(3) of the Regulations (subreg.3 matters) when, in truth, the delegate was only entitled to take into account those matters. The delegate, the applicant submits, therefore undertook a task that was outside the task the delegate was required or permitted to undertake.

3. The Minister accepts the delegate erred in assuming that she had to consider each of the subreg.3 matters. The Minister submits, however, that the delegate would have, in any event, considered those matters because of the nature of the material the applicant provided in support of her application. The Minister submits the applicant has not pointed to anything the delegate ought not to have considered. The Minister further submits that the onus is on the applicant to show that the delegate’s error had a discernible effect on the delegate’s decision. In support of that submission the Minister relies on the following passage from the reasons for judgment of Buchanan J in Minister for Immigration and Border Protection v Lesianawai & Anor:[5]

   I take it to be established, therefore, that in order to find jurisdictional error it is necessary to find not only an error of understanding or approach, but also a discernible effect on the exercise of power which points to a conclusion that the decision was made without authority because there had been a jurisdictional error.

   [5] [2014] FCAFC 141; (2014) 227 FCR 562 at [60]

4. Before I consider the parties’ submissions, it is necessary to explore the meaning of the passage from Buchanan J’s reasons on which the Minister relies.

The materiality of error

1. Buchanan J’s statement on which the Minister relies appears to have been intended to summarise the effect of three passages his Honour set out. The first is the following passage from the judgment of Mason J (as his Honour then was) in Minister for Aboriginal Affairs & Anor v Peko-Wallsend Ltd & Ors:[6]

   Not every consideration that a decision-maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according to law. A factor might be so insignificant that the failure to take it into account could not have materially affected the decision.

   [6] [1986] HCA 40; (1986) 162 CLR 24 at 40

2. The second passage is from Craig v South Australia:[7]

   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.

   [7] [1995] HCA 58; (1995) 184 CLR 163 at 179

3. The third passage is from the reasons for judgment of McHugh, Gummow, and Hayne JJ (with whom Gleeson CJ agreed) in Minister for Immigration and Multicultural Affairs v Yusuf:[8]

   “Jurisdictional error” can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive. Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it.

   [8] [2001] HCA 30; (2001) 206 CLR 323at [82]. The emphasis is that of Buchanan J

4. There are three matters to note about the principle stated by Buchanan J. First, the passages on which his Honour relies do not cover all types of jurisdictional error. They only cover jurisdictional errors that occur in the course of the exercise of jurisdiction the decision-maker unquestionably has. The passages, for example, do not include jurisdictional errors that arise where a decision-maker “mistakenly asserts or denies the existence of jurisdiction”, or were the decision-maker “misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist”.[9] No case has suggested that, where such jurisdictional errors are made, a court must consider whether there has been a “discernible effect on the exercise of power which points to a conclusion that the decision was made without authority because there had been a jurisdictional error”.[10] If a court finds a particular exercise of power was made without jurisdiction, or was made on the basis of the decision-maker misunderstanding the nature or limits of his or her power, that is the end of the enquiry – the decision-maker will be held to have made a jurisdictional error.

   [9] Kirk v Industrial Relations Commission (NSW) & Anor [2010] HCA 1; (2010) 239 CLR 531 at [72]

   [10] [2014] FCAFC 141; (2014) 227 FCR 562 at [60]

5. The second matter to note is that Buchanan J does not explain the meaning of the expression “discernable effect on the exercise of power”[11] when used in connection with an error. It appears, however, that his Honour treated the expression as being synonymous with “materially affected the outcome”,[12] being the expression Mason J used in Peko-Wallsend. Thus, an error will be regarded as having a discernible effect on the exercise of power if the error can be said to have materially affected the decision. That is apparent from the following passage of Buchanan J’s reasons for judgment in Minister for Immigration and Border Protection v SZSNW (emphasis added):[13]

   It cannot be said that those erroneous conclusions could not have materially affected the outcome, in view of the interconnected nature of the IMR’s findings on reliability (see also FTZK v Minister for Immigration and Border Protection [2014] HCA 26 per Crennan and Bell JJ at [97]). The error, therefore, had a discernible effect on the exercise of the IMR’s function. In my view, that function was not carried out in accordance with the purpose to which it was directed.

   [11] [2014] FCAFC 141; (2014) 227 FCR 562 at [60]

   [12] [1986] HCA 40; (1986) 162 CLR 24 at 40

   [13] [2014] FCAFC 145 at [92]

6. The third matter to note concerns onus. Is it for the applicant to prove that an error affected the outcome or had a discernible effect on the exercise of power? Or is the onus on those who seek to uphold the challenged decision to show that the error could have made no difference to the exercise of power?

7. In the passage from Peko-Wallsend Ltd I have set out above, Mason J referred to the factor the decision-maker failed to take into account being “so insignificant that the failure to take it into account could not have materially affected the decision”.[14] This suggests that the onus is on the person seeking to uphold the decision to show that the error could not have materially affected the decision. This is supported by the passage from the reasons for judgment of Buchanan J in SZSNW that I have set out above. The use of the words “it cannot be said”[15] indicates his Honour was of the view that the Court must be satisfied that the error could not have materially affected the outcome of the decision. That, in turn, indicates that the onus is on the person seeking to uphold the challenged decision to satisfy the court exercising judicial review jurisdiction that the error could not have materially affected the outcome of the decision.

   [14] [1995] HCA 58; (1995) 184 CLR 163 at 40

   [15] [2014] FCAFC 145 at [92]

Did the delegate make a jurisdictional error?

1. The delegate considered the applicant’s application for a Family visa on the basis that the delegate was required to consider the subreg.3 matters. That constitutes a misunderstanding of the functions and powers the delegate was required to exercise when considering the Family visa application. The delegate was not required to consider the subreg.3 matters; the delegate was only entitled to consider them. By considering the application for a Family visa on the basis that the delegate was required to consider the subreg.3 matters, the delegate disregarded the discretion she had under reg.1.15A(4) of the Regulations not to consider the subreg.3 matters.

2. In those circumstances, it is not necessary to ask whether the delegate’s error had a discernible or material effect on the delegate’s decision. That question makes little sense given the nature of the delegate’s error. Regulation 1.15A of the Regulations did not authorise the delegate to consider the Family visa on the basis that she had to consider the subreg.3 matters. By considering the applicant’s application for a Family visa on the basis that the delegate had to consider the subreg.3 matters, the decision the delegate made was one the delegate had no authority to make.

3. If, contrary to my conclusion, it makes sense to ask whether the delegate’s misunderstanding had a discernible or material effect on her decision, does the applicant have to satisfy the Court the error had a discernible effect on the delegate’s decision? The Minister submits she does. The Minister submits the applicant must show the delegate’s error made a difference to the delegate’s decision. I do not accept that submission.

4. As I have already noted, before the Court can conclude that the delegate’s error does not affect the validity of the delegate’s decision, the Court must be satisfied that the delegate’s error could not have materially affected the outcome. I am not satisfied that is so. There is a substantial difference between deciding an application for a visa on the basis that the decision-maker must consider the subreg.3 matters and deciding an application for a visa on the basis that the decision-maker may consider those matters. That there is such a difference is recognized by reg.1.15A of the Regulations itself; it differentiates between visa applications where the Minister must consider the subreg.3 matters from visa applications where the Minister is no required to consider them. In the circumstances of this case, I cannot discount the possibility, for example, that, had the delegate approached her task on the basis that she was not required to consider the subreg.3 matters, the delegate may have disregarded one or more of the subreg.3 matters she in fact considered and, as a result, may have made a decision favourable to the applicant.

1. For these reasons, the applicant succeeds on ground 5 of her amended application.

The other grounds

Ground 1

1. Ground 1 is that the delegate “failed to take into account relevant evidence being statement from the applicant and the spouse together with supporting documents”. Although stated in general terms, the applicant submits the delegate failed to take into account two items of evidence.

2. The first is of “[s]ome photos” referred to in the applicant’s lawyer’s letter dated 17 December 2013 to the Australian High Commission in New Delhi. The author of the letter deposed that all nineteen attachments referred to in the letter, including the photographs, were attached to the letter. The author also gave evidence at the hearing. He said he included the photos referred to in the letter he sent to the Australian High Commission in New Delhi, and explained the normal course by which he ensured that documents referred to in letters he authored were included in envelopes in which the letters were sent. Evidence was also given about the document handling procedures in the Australian High Commission in New Delhi.

3. I do not need to resolve the question of whether the photographs referred to in the applicant’s lawyer’s letter were received by the Australian High Commission. That is so because even if the Australian High Commission received the photographs, there is no evidence on the basis of which I could assess their importance and, therefore, determine whether the delegate made a jurisdictional error by not considering them. Whether or not the delegate would have made a jurisdictional error by not considering the photographs, assuming the delegate had received them, would have depended on “the importance of the [photographs] to the exercise of the [delegate’s] function and thus the seriousness of any error”.[16]

   [16] Minister for Immigration and Citizenship v SZRKT & Anor [2013] FCA 317; (2013) 212 FCR 99 at [111] (Robertson J)

4. The second item of evidence the applicant submits the delegate failed to consider is that contained in the following passage from the applicant’s statement (emphasis added):[17]

   After marriage [the NZ citizen] took me to his house in Kathmandu where there was living his mother and elder brother’s daughter. After our marriage, I and [the NZ citizen] lived together happily for about two and a half month [sic]. Then, he went to New Zealand leaving me with his mother and elder brother’s daughter (niece); at present he is in Australia. He is taking care of me well though he lives in a remote distance from me. He phones me time and time again and send [sic] me money regularly.

   [17] CB70

5. Notwithstanding this evidence, the delegate said there was “no evidence of phone calls or other correspondence between the applicant and New Zealand citizen or any explanation as to how they remained in touch before or while deciding to enter into a relationship”.[18] In my opinion, this indicates, and I infer, that the delegate did not consider the applicant’s evidence, in particular, her evidence that the NZ citizen telephoned her “time and time again”. This evidence was of importance to the delegate’s decision. The delegate herself said that the absence of such evidence was “unusual”, [g]iven the fact they have lived apart since 2012”.[19] Had the delegate considered and accepted the evidence, there is a substantial prospect the delegate would have made a different decision. In my opinion, the delegate made a jurisdictional error by not having considered this aspect of the applicant’s evidence.

   [18] CB103

   [19] CB103

6. For these reasons, ground 1 is made out.

Ground 2

1. Ground 2 is that the delegate’s decision “is so unreasonable that no reasonable delegate could ever have come to it, such that it amounts to an error of law”. That ground is not particularised, and was not developed in the applicant’s written submissions. Nor did I understand the ground to have been developed by the applicant’s counsel in address.

2. In my opinion, the delegate’s decision is one that a reasonable delegate, who correctly understood and applied the law, and who considered all the relevant material that was before the delegate, could reasonably have made. Ground 2, therefore, is not made out.

Ground 3

1. The applicant’s third ground is that the delegate made a “no-evidence finding” “in relation to contact between the applicant and the New Zealand citizen without having proper regard to the evidence before it”. The delegate noted there was “no evidence” in relation to a number of matters. It is unclear to which of those “no evidence” findings this ground is intended to refer. Presumably, the ground is directed to the delegate’s finding there was “no evidence of phone calls or other correspondence between the applicant and New Zealand citizen”. The applicant submits that this is wrong; there was evidence of telephone calls. The applicant relies on her evidence that the NZ citizen “phones me time and time again and send [sic] me money regularly”.[20]

   [20] CB70

2. For the reasons I have already given, the delegate did not consider this evidence and, by not doing so, made a jurisdictional error. Ground 3, therefore, is also made out.

Ground 4

1. Ground 4 is:

   The Respondent made a jurisdiction error by making legal error in relation to the onus of proof by rejecting the evidence on the basis that there was doubt as to the credibility of the claims made.

2. As I understood counsel for the applicant, the gist of this ground is that the delegate did not accept the credibility of the applicant’s claims because “there is considerable evidence to cast doubt on the credibility of the claims made”;[21] and this constituted jurisdictional error because the delegate did not in fact find that the applicant’s claims did not have credibility.

   [21] CB104

3. I do not accept that submission. Although the language of the delegate went no further than stating there was doubt about the credibility of the claims, in substance the language the delegate used conveyed the delegate’s finding that she was not satisfied the applicant’s claims were credible.

4. Ground 4, therefore, is not made out.

Ground 6

1. The sixth ground of review is that the delegate made “findings which were irrational or incomprehensible”. This ground refers to two matters. The first is the following passage from the delegate’s reasons for decision:[22]

   [22] CB103

   I have considered the evidence of money transfers and therefore give it little weight.

2. Taken literally, and in isolation, this passage discloses no reasoning for the delegate’s not giving weight to the money transfers and, for that reason, could be said to be irrational. The passage, however, must be considered in context, and in particular in the context of the two preceding paragraphs. In those paragraphs, the delegate refers to the absence of evidence relating to the financial aspects of the applicant’s and the NZ citizen’s relationship. Read in that context, the passage is not irrational. It means that the delegate gives little weight to the evidence of the money transfers, given the absence of evidence of the financial aspects of the relationship the delegate found the applicant did not provide, and which the applicant would be expected to have provided had the applicant and the NZ citizen been in a married relationship.

3. The second matter on which the applicant relies is the delegate’s placing emphasis on there being “no divorce certificate of the applicant’s previous marriage with the New Zealand Citizen”.[23] The applicant submits that whether or not the applicant produced no divorce certificate was irrelevant. I disagree. In his statement, the NZ citizen said that the applicant wanted a divorce from the NZ citizen, and that the NZ citizen “agreed to her terms”.[24] The absence of any document that supported that statement was relevant to determining the credibility of that part of the NZ citizen’s evidence. That, in turn, was relevant to assessing the applicant’s evidence about the nature of the relationship she claimed she had with the NZ citizen.

   [23] CB103

   [24] CB27

4. Ground 6, therefore, is not made out.

Conclusion and disposition

1. The delegate made a jurisdictional error by considering the applicant’s application for a Family visa on the incorrect assumption that the delegate was required to consider the matters identified in reg.1.15A(3) of the Regulations. The delegate also made a jurisdictional error by failing to consider the applicant’s evidence that the NZ citizen regularly contacted her and sent her money. Accordingly, I propose to quash the delegate’s decision, and order that the Minister reconsider the applicant’s application for a Family visa according to law. I also propose to order that the Minister pay the applicant’s costs.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date: 21 August 2015