Syed v Minister for Immigration

[2018] FCCA 89

FEDERAL CIRCUIT COURT OF AUSTRALIA

SYED v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 89

Catchwords:
MIGRATION – Application for judicial review of decision of Migration Review Tribunal (Tribunal) affirming decision of a delegate not to grant applicant partner visa – whether Tribunal assumed rather than considered for itself whether an allegation contrary to the interest of the applicant was in fact made – whether the Tribunal relied on the existence of such allegation – whether the Tribunal gave clear particulars of such allegation for the purposes of s.359A of the Migration Act 1958 (Cth) – whether the applicant provided to the Tribunal information that constituted the allegation – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.5F, 348, 359A

Migration Regulations 1994 (Cth), reg.1.15A, Schedule 2, cl.309.211(2)

Cases cited:

Minister for Immigration and Citizenship v Brar [2012] FCAFC 30

Minister for Immigration and Citizenship v Chamnam You [2008] FCA 241

Applicant: HABEEB HUSSAIN SYED

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2635 of 2015

Judgment of: Judge Manousaridis

Hearing date: 30 November 2016

Date of Last Submission: 30 November 2016

Delivered at: Sydney

Delivered on: 23 January 2018

REPRESENTATION

Counsel for the Applicant: Mr L Karp

Solicitors for the Applicant: Dobbie and Devine Immigration Lawyers Pty Ltd

Counsel for the First Respondent: Mr P Knowles

Solicitors for the First Respondent: Mills Oakley Lawyers

ORDERS

1. The application is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2635 of 2015

HABEEB HUSSAIN SYED

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant applies for judicial review of the decision of the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant a Partner (Temporary)(Class UK) visa (Partner visa).

Background

1. The applicant is a national of the Republic of India. He arrived in Australia in 2009 holding a student visa.

2. On 21 November 2012 the applicant’s wife (sponsor), who is an Australian citizen, applied for the grant of a Partner visa to the applicant. To have been entitled to the grant of a Partner visa, the applicant and sponsor would have had to satisfy the Minister that, among other things, the applicant was the “spouse” of the sponsor.[1] Subsection 5F(1) of the Migration Act 1958 (Cth) (Act) provides that a person is a “spouse” of another person if, under s.5F(2) of the Act, the two persons are in a “married relationship”. Subsection 5F(2) of the Act provides that persons are in a “married relationship” if:

   [1] Clause 309.211(2) of Schedule 2 to Migration Regulations 1994 (Cth)

   (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. Subsection 5F(3) of the Act provides that the Migration Regulations 1994 (Cth) (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”. Under reg.1.15A(2) of the Regulations the Minister, when considering an application for a Partner visa, must “consider all of the circumstances of the relationship, including the matters set out in subregulation (3)”. The matters set out in reg.1.15A(3) of the Regulations are the financial aspects of the relationship, the nature of the household, the social aspects of the relationship, and the nature of the persons’ commitment to each other. The social aspects of the relationship include “the opinion of the persons’ friends and acquaintances about the nature of the relationship”.[2]

   [2] Migration Regulations 1994 (Cth) reg.1.15A(3)(c)(ii)

4. In the application for a Partner visa, the applicant and sponsor claimed they live in a townhouse in New South Wales with the sponsor’s two children. They claimed they met at a party held by the applicant’s friend and work colleague who introduced the applicant to the sponsor. After seeing each other for about five months the applicant proposed marriage to the sponsor and the applicant and sponsor married on 12 November 2012.

5. On 24 April 2014 a delegate of the Minister refused the application. In her decision record, the delegate recorded the following:[3]

   The department received community information that the relationship between the applicant and sponsor are [sic] contrived and [the applicant and sponsor] are not living together and there were no concrete evidences [sic] to prove that the applicant and sponsor are in a genuine relationship. I have interviewed the applicant and sponsor on 11/04/2014 separately.

   During the interview the applicant and sponsor were provided with an opportunity to comment on information received by the department from the community regarding their relationship and both applicant and sponsor stated that they are in a genuine relationship and denied the allegation.

   [3] CB125

6. The applicant applied to the Migration Review Tribunal (being the predecessor of the Tribunal) for review of the delegate’s decision.[4] The application was lodged electronically by the applicant’s migration agent. In the copy of the application to the Tribunal that is in evidence before me,[5] there is included under the heading “Document upload” a document described as “DIAC – Notification and Decision Record.pdf”. I infer that is a reference to a scanned copy of the delegate’s decision record to which I have referred.

   [4] CB136

   [5] CB137

7. Both the applicant and the sponsor appeared before the Tribunal to give evidence and present arguments. It is unnecessary to set out all of the evidence the applicant and sponsor gave. It is relevant to set out, however, that part of the transcript of the hearing in which the Tribunal drew the attention of the applicant and the sponsor to the information the delegate said the Department received about the applicant’s and sponsor’s relationship not being genuine. The evidence the applicant gave is as follows:[6]

   Q. So the department say that they received an allegation from a member of the community that your relationship was not genuine, and that it was a contrived, fake relationship. What do you say about that? Do you know why anyone would say that?

   A. [Applicant]: No, because the thing is that I live with my mates there, right, and I don’t know if somebody feels jealous or something . . .

   Q. So do people that you know, know about your situation, that you are seeking a partner visa and that’s –

   A. [Applicant]: No, no. Thing is, I’ll marry with someone .. (not transcribable).. from our country, married here from different country and from different caste. Nobody knows. I can’t say it from my friends or somebody else someone .. (not transcribable).. complaints, I never cared what someone .. (not transcribable).. because I know someone .. (not transcribable).. because I’m in relation someone .. (not transcribable).. baby here.

   [6] T9.10. The transcript of the hearing before the Tribunal is annexed to the affidavit of C Ryu made on 16 November 2016. The portion extracted is at page 10 of the annexure.

8. The sponsor gave the following evidence:[7]

   Q. I just wanted to ask you something that I put to your husband. The department say that they received an allegation that your relationship isn’t genuine. I’m not sure if you were aware of that.

   A. [Sponsor]: The lady at the time, she did—

   Q. She said—

   A. [Sponsor]: she said there was some – they were informed, and—

   Q. Do you know what that might be about, or do you know of anyone who might make such a claim?

   A. [Sponsor]: I don’t know. As much as my mother dislikes our situation, I don’t think she’d be that callous. I don’t .. (not transcribable).. she doesn’t like [the applicant], but I don’t – honestly think she’d do that because she – she knows it would affect me. I honestly can’t think of how – or who would want to do that. I mean, we’ve never done anything to – wrong by anyone, or give anyone any reason to do that to us.

   [7] T18.10

Tribunal’s reasons

1. The Tribunal was not satisfied the applicant and sponsor were in a genuine and continuing relationship. The Tribunal relied on a number of matters.

   a)The “applicant was not able to provide the most fundamental information and his explanations for inconsistencies in his and the sponsor’s evidence was evasive and not credible”.[8]

   b)At the time of his interview by the delegate the applicant did not know about the sponsor’s Centrelink entitlement and the amount that was payable for rent for their apartment. Before the Tribunal the applicant was able to say he knew what the amount of the rent payable was, but he did not know the sponsor’s income, claiming that she was very private about her finances.[9]

   c)Before the delegate the applicant was unable to describe the layout of the apartment in which the applicant and sponsor claimed to live. When asked about this the applicant claimed he had not known where to start, while the sponsor said it would have been due to the pressure of the situation. The Tribunal was not satisfied that either account amounted to a credible reason for the applicant’s not being able to provide details of the place he claimed to have lived since his marriage to the sponsor.[10]

   d)The Tribunal was not satisfied the applicant and sponsor present themselves widely as husband and wife or that they share the social aspects of a relationship. Although the applicant submitted statements from friends who claimed the applicant and sponsor know each other and believe the relationship to be genuine, particularly after the birth of the sponsor’s second child, none of those friends or any family members attended the hearing as witnesses before the Tribunal. Further, none of the sponsor’s family attended the wedding even though they live in New South Wales and, when asked about the sponsor’s family, the applicant mentioned the sponsor’s parents and brother, but did not mention the sponsor’s sister.[11]

   e)Although the applicant and sponsor indicated to the Tribunal they were willing to take a DNA test to determine the paternity of the sponsor’s second child, after the hearing the applicant informed the Tribunal in a statutory declaration that the sponsor did not want to undertake the test because she felt that by having the test, the applicant would be neglecting his role as a father to his stepson and the applicant had been unable to convince her otherwise.[12]

   [8] CB291, [40]

   [9] CB289, [31]

   [10] CB289, [33]

   [11] CB289-290, [34], [35]

   [12] CB290-291, [37], [38]

2. In its reasons for decision the Tribunal referred to the evidence the applicant and the sponsor gave in response to the Tribunal’s having informed the applicant and sponsor of the information the delegate said the Department received about the genuineness of their relationship. In the case of the applicant, the Tribunal recorded the following:[13]

   The Tribunal asked the applicant about the allegation received by the Department stating that the relationship between him and the sponsor was not genuine. He said that he had had previously shared accommodation with friends and speculated perhaps someone was jealous of him. He also mentioned that his having married someone from a different caste may have been a reason.

   [13] CB286, [14]

3. In the case of the sponsor, the Tribunal recorded the following:[14]

   The Tribunal asked the sponsor about the allegation received by the Department stating that the relationship was not genuine: The sponsor said although her mother did not approve, she did not think she would make such a claim. Otherwise she did not know who would make the allegation. The sponsor said she had an unsettled past and she now wanted to settle down to a better life.

   [14] CB288, [22]

Ground 1 of application

1. The applicant relies on two grounds contained in the further amended application. The first ground is as follows:

   The Tribunal failed to act in accordance with its duty of review in s.348 of the Migration Act.

   Particulars

   (a)The Tribunal accepted, without evidence and without question, that information before the delegate included, “community information” to the effect that the applicant’s relationship was contrived in circumstances where there was no evidence that such information actually existed.

2. The factual foundation for this ground is an affidavit filed by a solicitor for the Minister who deposes to having reviewed the relevant Department file and Tribunal file but not having identified in those files material relating to information that the relationship between the sponsor and the applicant was contrived, other than a reference to such assertion in the delegate’s decision record.[15] On analysis, the elements of the applicant’s submission are as follows:

   a)The information the Tribunal accepted without question was the delegate’s statement that asserted the existence and effect of evidence that was before the delegate, namely, the receipt by the Department of “community information that the relationship between the applicant and sponsor [is] contrived and [the applicant and sponsor] are not living together”.

   b)Given the nature of the Tribunal’s jurisdiction under s.348 of the Act, it was not open to the Tribunal to accept without making its own enquiries the truth of that which the delegate asserted, namely, that the Department had in fact received “community information that the relationship between the applicant and sponsor [is] contrived and [the applicant and sponsor] are not living together”.

   c)The Tribunal, however, did accept without making its own enquiries the delegate’s assertion that the Department received “community information” to the effect “that the relationship between the applicant and sponsor [is] contrived and [the applicant and sponsor] are not living together”; and the Tribunal relied on its acceptance in affirming the delegate’s decision.

   [15] Affidavit of X He 23.11.2016

3. Counsel succinctly stated the applicant’s case on ground 1 as follows:[16]

   So, in my submission, by acting simply on the delegate’s view of . . . what the evidence was without conducting its independent assessment the Tribunal failed in a very important respect to review the decision and that’s jurisdictional error.

   [16] T14.20

4. Counsel for the Minister accepted it is open to the Court to find that at the time the Tribunal informed the applicant that the Department said it received an allegation that the applicant’s and sponsor’s relationship was not genuine (Information in Question) the Tribunal considered the Information in Question would be the reason or part of the reason for affirming the delegate’s decision. Counsel submitted, however, that the Tribunal gave no weight to the Information in Question to affirm the decision. Counsel pointed to the structure of the Tribunal’s reasons. These are divided into a number of sections two of which set out the evidence given by the applicant and the sponsor. It is in those sections that the Tribunal records the evidence the sponsor and the applicant gave in response to the Tribunal putting to the applicant and the sponsor the Information in Question. [17] The Tribunal, however, did not refer to this evidence in that part of its reasons headed “CONSIDERATION OF CLAIMS AND EVIDENCE” where the Tribunal systematically considered each of the elements relevant to whether the applicant and sponsor were in a genuine and continuing spouse relationship.

   [17] CB286, [14]; CB288, [22]

5. I accept the submissions of counsel for the Minister that the Tribunal gave no weight to the Information in Question and, thus, did not rely on it in affirming the delegate’s decision. That is so even though towards the end of its reasons the Tribunal concluded it “considered the evidence both individually and cumulatively and is not satisfied that the applicant and sponsor are in a genuine and continuing relationship”.[18] To consider evidence does not necessarily imply to give weight to the evidence. The matters on which the Tribunal relied in affirming the delegate’s decision are set out in the section of its reasons headed “CONSIDERATION OF CLAIMS AND EVIDENCE”. There is nothing in that section of its reasons to suggest the Tribunal relied on the Information in Question or on the evidence the applicant and sponsor gave when invited to comment on the Information in Question. That the Tribunal did not so rely on these matters is further supported by what it said in the sentence that followed its conclusion that it considered the evidence, namely, the applicant’s not being “able to provide the most fundamental information and his explanations for inconsistencies in his and the sponsor’s evidence”. That cannot reasonably be taken to have been intended by the Tribunal to refer to the Information in Question or to the evidence the applicant or the sponsor gave in response to the Tribunal asking them about the Information in Question.

   [18] CB291, [40]

6. Ground 1, therefore, fails.

Ground 2

1. Ground 2 is as follows:

   The second respondent (the Tribunal) acted in breach of s.359A of the Migration Act, 1958.

   Particulars

   (a)Failure to disclose to the applicant that the Department said that there had been a single allegation made to the Department of Immigration that his marriage was contrived, that being a “particular of information” that was part of the reason for affirming the decision under review.

2. Subject to s.359A(4) of the Act, s359A(1) requires the Tribunal to provide to an applicant “clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under the review”; to ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and to invite the applicant to comment or respond to that information.

3. This ground, which proceeds on the assumption that the Department did receive information to the effect that it was alleged the applicant and the sponsor were not in a genuine relationship, is a narrow ground. It does not claim the Tribunal did not disclose to the applicant that the Department had received information that alleged the applicant and sponsor were not in a genuine relationship; it claims the Tribunal failed to disclose that the Department said there had been a single allegation made to the Department that the marriage between the applicant and the sponsor was contrived. So stated, however, the ground cannot be made out. During the hearing before it, and in its reasons for decision, the Tribunal referred to the Department having received “an allegation” the applicant and sponsor were not in a genuine relationship. In other words, the Tribunal disclosed to the applicant that the delegate said the Department had received “an allegation”.

4. In oral address, counsel for the applicant made a broader submission. Counsel, as I understood him, submitted that that which the Tribunal disclosed could not be separated from what the delegate disclosed to the applicant and the sponsor. Counsel referred to the different words by which the delegate and the Tribunal described the Information in Question. The delegate described the Information in Question as “community information” the Department received, whereas the Tribunal referred to the Information in Question as “an allegation” made by a member of the community. As will shortly become apparent, this submission is relevant to whether s.359A(4)(b) of the Act applies to the Information in Question.

1. Counsel for the Minister submitted there is no substantive difference between stating, as the delegate did, that the Department had received community information that the relationship between the applicant and the sponsor is contrived and stating, as the Tribunal did, that the Department received an allegation from a member of the community that the relationship between the applicant and the sponsor was not genuine. Counsel for the Minister accepted that it is open to the Court to find that before it made its decision the Tribunal considered that the Information in Question would be the reason or part of the reason, but counsel also submitted that the Information in Question was not information to which s.359A applied because it was information “that the applicant gave for the purpose of the application of review” within the meaning of s.359A(4)(b) of the Act.

2. The first question is whether the Information in Question, whether or not it is assumed different meanings are conveyed by describing that information as “community information” or as “an allegation”, is information the Tribunal considered would be the reason or part of the reason for affirming the decision under review. I am not satisfied the Tribunal did at any time consider the Information in Question as information that would be the reason or part of the reason for affirming the decision under review. As I have already concluded, I am not satisfied the Tribunal gave any weight to the Information in Question, or to the evidence the applicant or sponsor gave when invited to comment on that information, in affirming the delegate’s decision. From that it is open to me to infer, and I do infer, that the Tribunal did not consider the Information in Question would be the reason or part of the reason for affirming the decision either at the time the Tribunal invited the applicant and the sponsor to comment on the information, or at any other time.

3. Assuming, contrary to what I have found, the Tribunal did at some time consider the Information in Question would be the reason or part of the reason for affirming the decision under review, I am satisfied that information is “information the applicant gave for the purpose of the application for review” within the meaning of s.359A(4)(b) of the Act. As submitted by counsel for the Minister,[19] where an applicant provides to the Tribunal a copy of the delegate’s reasons, the information contained in those reasons is “information the applicant gave for the purpose of the application for review”.[20] That the Tribunal described the Information in Question as “an allegation” rather than “community information” is of no significance. There is no doubt that by using the words “an allegation” the Tribunal intended to refer to the “community information” to which the delegate referred. There is nothing to suggest that when it used the expression “an allegation” the Tribunal intended to refer to any information other than the delegate’s reference to “community information”.

   [19] First Respondent’s Outline of Submissions, [10]

   [20] Minister for Immigration and Citizenship v Chamnam You [2008] FCA 241 (Sunberg J); Minister for Immigration and Citizenship v Brar [2012] FCAFC 30 at [74]

4. Ground 2, therefore, also fails.

Disposition

1. I propose to order that the application be dismissed.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  23 January 2018