Tadi v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 301
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Tadi v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 301
File number: MLG 572 of 2017 Judgment of: HER HONOUR JUDGE C. E. KIRTON kC Date of judgment: 27 April 2023 Catchwords: MIGRATION – Application for judicial review of the Administrative Appeals Tribunal – refusal to grant Partner (Temporary) (Class UK) visa – whether Tribunal properly assessed spousal relationship in accordance with s.5F of the Migration Act 1958 Cth - where the applicant and sponsor do not have a spousal relationship for the purposes of s.5F – - whether the Tribunal failed to provide clear particulars in breach of section 359A – whether the Tribunal failed to put the Applicant on notice of issues that were dispositive to the review - no jurisdictional error – application dismissed Legislation: Migration Act 1958 (Cth) ss 5F, 349, 359, 359A, 359AA, 360, 362A, 424A, 476(1) and 477(1)
Federal Circuit Court Rules 2001 (Cth) sch 1, pt 3, div 1
Migration Regulations 1994 (Cth) reg 1.15A(3), cl 820.211(2)
Cases cited: Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 228 CLR 294
SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46
SZNKO v Minister for Immigration and Citizenship [2010] FCA 297
SZTGV v Minister for Immigration and Border Protection [2015] FCAFC 3
Division: Division 2 General Federal Law Number of paragraphs: 69 Date of last submissions: 18 November 2020 Date of hearing: 18 November 2020 Place: Melbourne (by videoconference and audioconference) The Applicant Appeared in person Counsel for the First Respondent Mr N Swan Solicitor for the First Respondent Mills Oakley The Second Respondent submitting an appearance, save as to costs ORDERS
MLG 572 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: POOJITHA REDDY TADI
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
HER HONOUR JUDGE C. E. KIRTON KC
DATE OF ORDER:
27 April 2023
THE COURT ORDERS THAT:
1.The Originating Application filed 22 March 2017 is dismissed.
2.The Applicant pay the First Respondent’s costs fixed in the sum of $5,400.
3.The name of the First Respondent be amended to “Minister for Immigration, Citizenship and Multicultural Affairs”.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
HER HONOUR JUDGE C. E. KIRTON KC:
INTRODUCTION
Before the Court is an application filed on 22 March 2017 (Application) brought pursuant to s 476(1) of the Migration Act 1958 (Cth) (Migration Act). The Applicant seeks judicial review of the Administrative Appeals Tribunal (Tribunal) decision, dated 1 March 2017 (Tribunal’s Decision).
The Tribunal affirmed the earlier decision of a delegate (Delegate) of the First Respondent (Minister) not to grant the Applicant a Partner (Temporary) (Class UK) visa (Visa).
The Applicant has three (3) grounds of review for the Application, which the Court will consider in detail below.
This matter was heard on 18 November 2020 and proceeded by way of videoconference (the Applicant appearing by audioconference) on Microsoft Teams as a result of the health protocols adopted by the Federal Circuit Court of Australia (as the Court then was) at the time in Victoria, due to the ongoing COVID-19 pandemic. The Court is satisfied that the hearing provided a meaningful opportunity for the Applicant to engage with the Court.
For the reasons set out below, I find there is no jurisdictional error in the Tribunal’s Decision. It follows that the Application must be dismissed.
BACKGROUND
The Court has before it a Court Book numbering 231 pages. The Court has reviewed the material in the Court Book in detail. The Court notes that the Minister’s written submissions, filed on 4 November 2020 (Minister’s Submissions) accurately summarise the factual history of this matter at [2] to [6]. The Court adopts these submissions as its own. They provide, with some amendments, as follows.
The Applicant is a citizen of India, born on 25 September 1984. She married Mr Oud Saiyasaeng (Sponsor) on 10 February 2014. On 28 February 2014 the Applicant applied for the Visa. Mr Saiyasaeng sponsored the Visa application, on the basis of his spousal relationship with the Applicant.
In order to be granted the Visa, the Applicant was required to meet, inter alia, cl 820.211(2) of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations), which required that, at the time of application, she was the spouse of the Sponsor. Spouse is defined in s 5F of the Migration Act.
On 30 June 2015, the Delegate refused to grant the Applicant the Visa (Delegate’s Decision). The Delegate was not satisfied, on the information and evidence available, that the Applicant and the Sponsor satisfied the definition of spouse under s 5F of the Act and therefore did not satisfy cl 820.211(2) of the Regulations.
On 14 July 2015 the Applicant applied to the Tribunal for review of the Delegate’s Decision.
On 26 September 2016 the Tribunal wrote to the Applicant advising that on the material before it, the Tribunal was unable to make a favourable decision (26 September 2016 Notification) and invited the Applicant to attend a hearing on 4 November 2016, so that the Applicant may give oral evidence and present arguments. On 31 October 2016 the Applicant submitted by email to the Tribunal her response to the 26 September 2016 Notification, which advised that the Applicant did not intend to take part in the hearing on 4 November 2016 and that the Applicant’s representative (her migration agent) would also not be in attendance.
On 21 November 2016, the Tribunal wrote to the Applicant, pursuant to s 359A of the Migration Act, and sought the Applicant’s comment on certain information before it. On 20 December 2016 a further letter was sent by the Tribunal, pursuant to s 359A of the Migration Act, also seeking the Applicant’s comment on certain information.
On 1 March 2017 the Tribunal affirmed the Delegate’s Decision. On 2 March the Tribunal notified the Applicant in writing.
TRIBUNAL’S DECISION
The Tribunal’s Decision appears at pages 220 to 231 of the Court Book. The Minister’s Submissions, at [7] to [13], accurately summarise the Tribunal’s Decision. The Court adopts the summary provided in those submissions, with amendments, as its own.
The Tribunal commenced its reasons by observing that while it had invited the Applicant to attend a hearing before it, the Applicant had indicated, in writing, that she, her migration agent and the Sponsor would not attend. Accordingly, no hearing took place. The Tribunal then discussed the two (2) letters it had sent to the Applicant, pursuant to s 359A of the Migration Act, and noted that the Applicant had not responded to or commented on the information referred to in the two (2) letters.
The Tribunal identified the relevant issue on review as whether the Applicant satisfied cl 820.211(2) of the Regulations. It noted that this required that the Applicant be the spouse of the Sponsor at the time of the application for the Visa. It further noted that spouse was defined in s 5F of the Act and that, in assessing whether a spousal relationship existed, regard must be had to the matters in reg 1.15A(3) of the Regulations.
Financial aspects of the relationship
The Tribunal first considered the financial aspects of the Applicant’s and Sponsor’s relationship (reg 1.15A(3)(a)). The Tribunal considered that there was no evidence that the Applicant and Sponsor were pooling financial resources or sharing day-to-day financial expenses. It also referred to bank account statements that had been provided to the Delegate, but observed that there was no evidence as to what funds withdrawn from the accounts were used for, and there were minimal transactions suggesting that the parties lived together.
Nature of the household
The Tribunal next dealt with the nature of the Applicant’s and Sponsor’s household (reg 1.15A(3)(b)). The Tribunal considered that there was ‘no convincing documentary evidence’ to satisfy it that the Applicant and Sponsor were living together at the time of the Visa application or the Tribunal’s Decision. The Tribunal noted that the Applicant had not provided any evidence that she and the Sponsor had been sharing a household since the Delegate’s Decision. It found that the available evidence ‘does not establish that the parties share a house’.[1] The Tribunal also placed weight on information given by the Sponsor to the Delegate and information given to the Department of Immigration and Border Protection (Department) by an anonymous source that the Applicant did not live with the Sponsor, as well as the fact that the Applicant did not directly deny that she lived in Preston, separate from the Sponsor.
[1] Courtbook (CB) 228, [56].
The social aspects of the relationship
The Tribunal then dealt with the social aspects of the relationship (reg 1.15A(3)(c)). The Tribunal noted that the Applicant had provided only a few photographs of her and the Sponsor other than on their wedding day. The Tribunal noted that it was concerning that there were no photographs of the Applicant and Sponsor with their friends. It referred to two (2) statements made by the Applicant’s friend and the Sponsor’s father, but gave them limited weight. Given the paucity of evidence before it, the Tribunal could not be satisfied as to how widely the Applicant and Sponsor represented themselves to others as being married, or the degree to which their relationship was accepted and supported by others.
The nature of the Applicant’s and the Sponsor’s commitment to each other
Finally, the Tribunal considered the nature of the Applicant’s and Sponsor’s commitment to each other (reg 1.15A(3)(d)). The Tribunal referred to the Applicant’s and Sponsor’s claims as to when their relationship commenced and their marriage certificate. It referred to evidence given to the Delegate, and noted that the Applicant had not provided any further evidence to the Tribunal, attesting to the nature of the parties’ commitment to one another since the Delegate’s Decision was made. The Tribunal considered that the Applicant had not put before it sufficient evidence to show that they had a mutual commitment to a shared life as wife and husband, and that their relationship was genuine and continuing.
The Tribunal was therefore not satisfied that, at the time of the Visa application and at the time of its decision, the Applicant and Sponsor were in a spousal relationship. It thus found that the Applicant was not the spouse of the Sponsor, pursuant to s 5F of the Migration Act. The Tribunal accordingly found that cl 820.211(2) of the Regulations was not met and affirmed the Delegate’s Decision.
PROCEEDINGS BEFORE THE COURT
The Application for judicial review was filed on 22 March 2017. This was within 35 days of the date of the Tribunal’s Decision, as required by s 477(1) of the Migration Act.
The Applicant was provided an opportunity to file an amended application by Orders of Judge Wilson (as His Honour then was) of this Court, dated 22 November 2017. The Applicant did not do so and as such this judgment refers to the grounds set out in the Application.
The Applicant advanced the following grounds of review in her Application:
1.That decision of the Tribunal is affected by jurisdictional error on the basis that the Tribunal breached its obligations pursuant to section 349 and 359 of the Migration Act (1958) (Cth) by failing to put the Applicant on notice of the issues dispositive to its decision.
Particulars
a.Allegations made by "two anonymous sources" that the applicant's marriage is a 'fake marriage' and that the applicant paid money to her sponsor.
b.The Tribunal's concerns whether the couple was living together at Preston
c.The Tribunal's reliance on the said anonymous sources in making its decision.
2.The Tribunal failed to comply with the requirements of s 359A of the Migration Act. The Tribunal failed to give to the Applicant clear particulars of information which the Tribunal considered would be the reason, or a part of the reason, for affirming the decision that was under review, thereby contravening s359A of the Migration Act.
Particulars:
a.The delegate's decision record states the applicant’s marriage is a 'fake marriage' and the relationship is contrived, that the applicant was introduced to the sponsor by a migration agent and that the applicant paid money to the sponsor for the migration process.
b.The delegate's decision record further states that the applicant lives in Preston whilst the sponsor lives in Geelong.
c.The Tribunal had informed the applicant that if the Tribunal relies on this information the decision under review will be affirmed.
d.Whilst the Tribunal had drawn the applicant's attention to the said information above the Tribunal did not advise the applicant that she could seek additional time to comment on or respond to the information as required under s.359AA. The Tribunal had considered that this piece of' 'anonymous information" would form a significant part of its reason for affirming the decision and yet did not provide particulars of the source of information and details when requested by the applicant in accordance with s.359A of the act.
e.The department's interview notes of the applicant and sponsor was not provided to the applicant.
f.The Applicant contends that the exception in s359A (3) does not apply because the Tribunal did not give the particulars of the Travel Information to the Applicant.
g.In essence, the evidence of the so called sources which was relied upon by the delegate and the Tribunal gave rise to obligations under s.359A.of the Migration Act 1958 (Cth)(the "Act").S 359A (1) of the Act requires the Tribunal to give to the 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 review. It must also ensure as far as 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 under review. See SZNKO v Minister for Immigration and Citizenship [2010] FCA 297 at 23 per Flick J, the principle advanced in SZNKO is that 359A (like s.424A) requires disclosure of so much as to ensure that the opportunity to comment or respond is meaningful. Thus, it was important for the Applicant to understand the information was obtained from the so called anonymous sources.
3.That the Tribunal committed jurisdictional error by concluding section 5F(2)(b) (c) and (d) of the Migration Act 1958 (Cth) was not met.
Particulars
a.statement of applicant and sponsor detailing the relationship was not considered.
b.Joint bank account statements detailing transactions for contributions towards household expenses was not considered.
c.Photographs and 888 witnesses' statements not considered.
d.Rather than considering whether the Applicant and sponsor, at the relevant time, had a mutual commitment to a shared life as husband and wife to the exclusion of all others, the tribunal only considered the delegate's record of decision without independently considering the relationship under the Act. Consequently, the tribunal fell into jurisdictional error.
e.In essence, the Tribunal was required to assess the nature of the parties' relationship with each other in light of its particular circumstances. In light of the Tribunal's finding as to the nature of the relationship the anonymous allegations was not a factor critical in determining whether the relationship was "genuine".
(Without alteration)
The matter came before me for hearing on 18 November 2020 (Hearing). The materials before the Court include the Court Book (marked as Exhibit 1), and the Minister’s Submissions. The Applicant’s affidavit, affirmed on 20 March 2017 and filed on 22 March 2017 merely provided a copy of the Tribunal’s Decision. The Court has also considered the transcript of the Hearing, where both the Applicant and Counsel for the Minister provided oral submissions.
The Applicant appeared before the Court without legal representation. The Court confirmed with the Applicant that she had received a copy of the Court Book, and a copy of the Minister’s Submissions.[2]
[2] Transcript, P2:L37-P3:L39.
At the Hearing, the Applicant made oral submissions in relation to Ground 2, noting that she had never lived in Preston.[3] In reply to the Minister’s oral submissions, the Applicant referred to the Tribunal’s hearing invitation for a hearing scheduled for 4 November 2016 that indicates that no one, including the Applicant’s legal representation, intends to attend the hearing. The Applicant asserted that whilst she did not attend the hearing, her representative did.[4] Counsel for the Minister confirmed that no hearing was held. In any event, these are not matters relevant to the Court’s task of judicial review.
CONSIDERATION
[3] Transcript, P4:L39-P5:L14.
[4] Transcript, P14:L10-22.
Jurisdictional Error
In order to be entitled to relief, the Applicant must establish that the Tribunal’s Decision is affected by jurisdictional error.
Jurisdictional error was explained by Nettle and Gordon JJ in the High Court’s decision of Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 (SZMTA), where their Honours said, at [81]:
The categories of jurisdictional error are not closed. Jurisdictional error by a statutory decision-maker includes identifying a wrong issue; asking the wrong question; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; and failing to observe some applicable requirement of procedural fairness. As McHugh, Gummow and Hayne JJ said in Minister for Immigration and Multicultural Affairs v Yusuf [(2001) 206 CLR 323 at 351 [82]]:
“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.”(Footnotes omitted)
The Court will now consider each of the three (3) grounds of review contained in the Application.
Ground 1
Ground 1 contends that the Tribunal’s Decision is affected by jurisdictional error because the Tribunal breached its obligation, purportedly pursuant to ss 349 and 359 of the Migration Act, by failing to put the Applicant on notice of issues that were dispositive to the review. The “issues” referred to are set out in Particulars (a) to (c) of the Application, as laid out at [24] herein.
The Minister’s Submissions suggests that Ground 1 erroneously cites ss 349 and 359 of the Migration Act, and that Ground 1 should instead cite s 360 of the Migration Act.[5] The Court agrees to the extent that ss 349 and 359 of the Act are not applicable. Section 349 provides the Tribunal with powers of review for ‘reviewable decisions’. Section 359 enables the Tribunal to seek information if they are reviewing a decision under s 349. Both these provisions outline the role and scope of the Tribunal and do not relate to putting the Applicant on notice.
[5] Minister’s Outline of Submissions filed 4 November 2020 (Minister’s Submissions), [15].
Section 360 of the Migration Act requires the Tribunal to invite an applicant before it to give evidence and present arguments relating to issues arising in relation to the decision under review, if the Tribunal considers that based on the material before it, it cannot come to a decision favourable to the applicant.
Ground 1 does not contend that the Tribunal did not invite the Applicant to appear before it in accordance with s 360 of the Migration Act. The Tribunal did so on 26 September 2016 when it invited the Applicant to appear before it on 4 November 2016 to give evidence and present arguments relating to the issues arising.[6]
[6] CB 190-191.
Here, Ground 1 contends that the Tribunal failed to put the Applicant on notice of issues “dispositive” to its decision, which appears to be a reference to s 359A of the Migration Act which concerns information given in writing by the Tribunal.
Section 359A of the Migration Act provides that:
359A Information and invitation given in writing by Tribunal
(1) Subject to subsections (2) and (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, 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 review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
(2) The information and invitation must be given to the applicant:
(a) except where paragraph (b) applies—by one of the methods specified in section 379A; or
(b) if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.
(3)The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 359AA.
(4) This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b) that the applicant gave for the purpose of the application for review; or
(ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
(c) that is non‑disclosable information.
(5) A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 362B(1F).
Section 424A of the Migration Act confers the same duty on the Tribunal with respect to Part 7 - reviewable decisions. It was held by the High Court of Australia in SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 228 CLR 294 at [75], [173] and [208] that breach of s 424A(1) of the Migration Act constitutes judicial error. Thus, correspondingly, a breach of s 359A of the Migration Act would also constitute judicial error.
In SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46 the Full Court of the Federal Court said, at [71]:
The policy and purpose reflected in s 424A is that the Tribunal should be compelled:
(a)To put the visa applicant on fair notice in writing of critical matters of concern to the Tribunal;
(b)To ensure that the visa applicant understands the significance of those matters to the decision under review; and
(c)To give the applicant a reasonable opportunity to comment on or respond to those matters of concern.
The Full Court of the Federal Court in SZTGV v Minister for Immigration and Border Protection [2015] FCAFC 3 (SZTGV) provided an approach to assessing whether the Tribunal had breached its statutory obligations, at [9]:
To determine whether there has been any breach of s 424A(1) of the Act it is necessary to answer the following questions:
(a)Is there information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review within the meaning of s 424A(1)(a)?
If the answer to question (1) is “No”, s 424A(1) does not apply.
If the answer to question (1) is “Yes”, s 424A(1) may or may not apply depending on the answer to question (2).
(b)If the answer to question (1) is “Yes”, then is that information excluded from s 424A(1) by s 424A(3), in particular for the purpose of the three present matters, by s 424A(3)(b), being information that the applicant gave for the purpose of the application for review?
If the answer to question (2) is “Yes”, s 424A(1) does not apply.
If the answer to question (2) is “No”, s 424A(1) may apply depending on the answers to questions (3) and (4).
(c)Did the Tribunal comply with s 424AA(a) in respect of the information, by giving to the applicant orally 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 review?
If the answer to question (3) is “No”, s 424A(1) applies.
If the answer to question (3) is “Yes”, s 424A(1) may or may not apply depending on the answer to question (4).
(d)If the Tribunal complied with s 424AA(a) in respect of the information, by giving to the applicant orally 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 review, did the Tribunal comply with each of s 424AA(b)(i)–(iv)?
If the answer to question (4) is “No, s 424A(1) applies.
If the answer to question (4) is “Yes”, s 424A(1) does not apply.
(e)If s 424A(1) applies and s 424AA does not apply, did the Tribunal give the applicant the information in accordance with s 424A(2)?
If the answer to question (5) is “No”, the Tribunal has breached s 424A.
If the answer to question (5) is “Yes”, the Tribunal has not breached s 424A.
The Applicant contends that she was not put on notice by the Tribunal of three (3) ‘dispositive issues’, being:
(1)The two (2) anonymous allegations that the Applicant’s marriage to the Sponsor is fake and that the Applicant paid him to sponsor her Visa;
(2)The two (2) anonymous allegations that the Applicant did not live with the Sponsor; and
(3)The Tribunal’s reliance on the anonymous allegations.
The Court accepts the Minister’s submissions that the Court cannot engage with an assessment of the allegation that the Applicant lived in Preston as this would constitute an impermissible merits review.
Though the Minister’s submissions in relation to Ground 1 were in respect of s 360 of the Migration Act, they in substance refute the Applicant’s contention.
Following the approach in SZTGV, there is information (the anonymous allegations) that the Tribunal considered would be the reason, or a part of the reason, for affirming the Delegate’s Decision. No exceptions in s 360(2) apply and therefore s 360(3) does not apply. There was no oral hearing or submissions. Accordingly, under s 360 the Tribunal must provide the Applicant with information regarding issues arising in relation the review of the Delegate’s Decision and the Tribunal must invite the Applicant to respond with evidence and arguments. Fulfilling the obligations under s 360 would put the Applicant on notice of the three (3) dispositive issues.
The Minister submitted that the allegations (contained in the issues at [40]), and the Tribunal’s potential reliance on the allegations, were “squarely” drawn to the Applicant’s attention on two (2) occasions.[7] The first occasion in a letter dated 21 November 2016 inviting the Applicant to comment or respond to the information (21 November 2016 Letter). [8] The second occasion in a letter dated 20 December 2016, which likewise invited the Applicant to comment or respond to the information (20 December 2016 Letter)[9] (together with the 21 November 2016 Letter, the Letters).
[7] Minister’s Submissions, [16]-[18]; Transcript P-6:L29-32; P-6:L45-47; P-7:L1-25.
[8] CB 202.
[9] CB 208.
In the 21 November 2016 Letter, the Tribunal writes:
[…]
In conducting the review, we are required by the Migration Act 1958 (the Act) to invite you to comment on or respond to certain information which we consider would, subject to your comments or response, be the reason, or part of the reason, for affirming the decision under review.
The Department’s file contains allegations made against you in 2015 by two anonymous sources.
Please note, however, we have not made up our mind about the information.
The particulars of the information are:
•that your marriage in 2014 is a ‘fake marriage’ and that you paid money to your husband for this process – both sources make this allegation;
•that you live in Preston and not with your husband – one source makes this allegation;
[…]
If the Tribunal relies on this information in making its decision, it may conclude that you do not meet two of the mandatory criteria for a spousal relationship within the meaning of s.5F of the Act.
[…]
(As written)
In the 20 December 2016 Letter, the Tribunal writes:
[…]
On 21 November 2016 the Tribunal wrote to you, via your representative, inviting you to comment on or respond to certain information on the Department’s file which the Tribunal considers would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decision under review. You were informed that the Department’s file contains allegations made against you in 2015 by two anonymous sources.
The Tribunal has reviewed the information on the Department’s file again. The Tribunal makes the following clarifications:
•The Tribunal earlier informed you that only one of the two sources had made the allegation that you live in Preston and not with your husband. The Tribunal notes that the other source also alleges that you are living in Preston.
•There is also an allegation made against you in 2014 by an anonymous source. The particulars of the information alleged by this anonymous source are that:
•your relationship is contrived, that you were introduced to your sponsor by a migration agent and that you paid money to your sponsor for this process; and
•you live in Preston and that your sponsor lives in Geelong.
[…]
If the Tribunal relies on this information in making its decision, it may conclude that you do not meet two of the mandatory criteria for a spousal relationship within the meaning of s.5F of the Act.
[…]
(As written)
One only needs to read the Letters to appreciate that the Letters inform the Applicant of the allegations and the consequences of the Tribunal’s potential reliance on the allegations. The Tribunal admits that it has information it considers would be the reason, or part of the reason for affirming the decision under review. The Tribunal invites the Applicant to comment on or respond to the information under s 359AA of the Migration Act.
The Court notes that the Applicant did not accept the opportunity to comment on, or respond to, the allegations, and remarkably, the Applicant denied the Tribunal’s invitation to appear before it on 4 November 2016.
It follows that the Tribunal did put the Applicant on notice of issues arising in relation to the decision under review in accordance with its obligation prescribed by s 360 of the Migration Act. Ground 1 is not made out.
Ground 2
Ground 2 contends that the Tribunal’s Decision is affected by jurisdictional error because the Tribunal breached its obligations under s 359A of the Migration Act, as it failed to give the Applicant clear particulars of information related to affirming the Delegate’s Decision.
Ground 2 in substance alleges that the Tribunal’s provision of information did not satisfy the requirements under s 359A to the required level of clarity and detail. The Particulars within Ground 2 expand on separate issues.
The Court agrees with the Minister’s submission that Particulars (a)-(c) are factual summaries. The Court accepts the Minister’s submission that Particular (d) erroneously applies s 359AA. S 359AA is not relevant in this instance as the Applicant declined to appear and no hearing occurred. No oral information or invitation was given, applicable or necessary.
Particular (f) points to the ‘exception’ in s 359A(3) and states that it does not apply. As the Minister’s submissions pointed out, the meaning of ‘Travel Information to the Applicant’ in this context is unclear. No hearing occurred so 359AA is not applicable as there was no oral invite or oral information provided to the Applicant. Consequently, s 359A(3) does not apply. The Tribunal provided written particulars of information and invite to the Applicant under s 359A.
The Court accepts the Minister’s submissions, citing SZMTA, in relation to Particular (e). No evidence of a request for the notes described was provided, nor can the Applicant prove that the Tribunal would have come to a different decision if the notes had been provided.
As discussed in Ground 1 at [44]-[45], pursuant to s 359A(1)(a) of the Migration Act, the Letters to the Applicant outlined particulars of information that the Tribunal considered would be the reason or part of the reason for affirming the Delegate’s Decision. Ground 2, specifically Particulars (d) and (g), contend that the Tribunal failed to clearly identify the particulars of the information as the Tribunal did not provide further details. The Applicant concedes that the Tribunal had identified the information and informed the Applicant that if the Tribunal relies on this information the Delegate’s Decision would be affirmed. The Applicant contends that the Tribunal did not provide further details about and failed to specifically disclose the source of the anonymous information.
Particular (g) of Ground 2 further alleges that in contravention of s 359A(1)(b) the Tribunal did not ensure that the Applicant understood the relevance and consequence of the allegations. The Minister’s submissions are again accepted by the Court. The Letters explained that the information may be relied upon to affirm the Delegate’s Decision, invited the Applicant to respond to the information and the Tribunal provided the Applicant with a hearing date for further responses. The Tribunal clearly articulated the three (3) main allegations being considered, the legislative ‘spouse’ test and the ability of the Applicant to submit further evidence to be considered. It cannot be made out that the Applicant did not understand that the substance of the allegations could adversely affect her application and that it was in her interests to respond to the information.
In failing to disclose further details and the source of the information, the Applicant submitted that she was not provided a meaningful opportunity to comment or respond. The Applicant cited the explanation of the requirements of s 359A as articulated by Flick J in See SZNKO v Minister for Immigration and Citizenship [2010] FCA 297. The Court agrees with the Minister’s submissions in that the Tribunal provided sufficient information and clearly identified the particulars that were particularly relevant to its decision and adverse to the Applicant. The Court also agrees with the Minister’s submission that the Applicant’s allegation is misconceived, in that the Tribunal did not have actual knowledge of the source of the allegations, such as the location of the Preston house and names of the anonymous sources. The Tribunal provided the substance of the allegations clearly to the Applicant. The Applicant has not provided any evidence to prove that the information provided was insufficient.
Further, the Court notes that the Applicant formally requested access to written material on 20 January 2017 using the Tribunal’s ‘Request for access to written material under s 362A of the Migration Act – MR Division’ form.[10] On 2 February 2017 the Tribunal wrote to the Applicant advising that partial access to the written material requested was granted, and the documents were enclosed.[11] The letter clearly stated that, subject to any further information submitted by the Applicant, the Tribunal will make a decision within 21 days of the letter. The Applicant did not respond with any further information.
[10] CB 212.
[11] CB 215.
Ground 2 cannot succeed. The Tribunal employed the process set out in s 359A of the Migration Act to invite the Applicant to comment on the adverse evidence and information. The Tribunal provided sufficiently clear particulars of information, ensured the Applicant understood the consequences and relevance of the information and on multiple occasions invited the Applicant to comment on the allegations and submit further information in her favour. Ground 2 is therefore not established.
Ground 3
Ground 3 contends that the Tribunal’s Decision is affected by jurisdictional error because the Tribunal failed to consider or give appropriate weight to particular information relating to the nature of the relationship between the Applicant and Sponsor. Consequently, the Tribunal allegedly breached its obligation by concluding that s 5F(2)(b)-(d) of the Act was not met.
The Tribunal has a duty to determine, for the purpose of merits review of visa application decisions by the Department, whether an Applicant satisfies the criteria under Reg 820.211(2) of the Regulations, having regard to Reg 1.15A(3) and the definition of Spouse in s 5F of the Migration Act.
Section 5F of the Migration Act provides that:
5F Spouse
(1)For the purposes of this Act, a person is the spouse 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 mutual commitment to a shared life as married that is valid for the purposes of this Act; and
(c) the relationship between them is genuine and continuing; and 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 paragraph 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 expands on s 5F in that it outlines what circumstances must be considered and which visa applications are applicable.
The Applicant pointed to two (2) issues in regards to the Tribunal’s assessment of evidence for the purposes of determining whether the relationship between the Applicant and the Sponsor falls under s 5F. Firstly, the Applicant submitted that the Tribunal did not consider certain evidence, such as statements of the Applicant and Sponsor which detailed their relationship, joint bank account statements detailing household contributions, and other photographs and witness statements. Secondly, the Applicant submitted that too much weight was given to the anonymous allegations regarding the nature of the relationship with the Sponsor and the Applicant’s living situation. The Applicant contends that due to the flawed evaluation of factors, the Tribunal did not, independently from the Delegate, assess the nature of the relationship between the Applicant and Sponsor. Therefore, in jurisdictional error, the Tribunal erroneously agreed with the Delegate’s Decision that s 5F(2)(b)-(d) was not met.
The Court does not agree with the Applicant’s submission that the Tribunal did not independently consider all the relevant information at the time of its decision. The Tribunal considered the Delegate’s assessment of each factor and relevant evidence, but did not confine its assessment to the evidence available at the time of the Delegate’s Decision. The Tribunal provided multiple opportunities for the Applicant to submit further evidence relating to her relationship with the Sponsor. Importantly, the Applicant did not provide new information to the Tribunal as she declined the hearing invitation and did not respond to the Tribunal’s letter outlining the adverse allegations, except to request information regarding the allegations. The Applicant had opportunities to engage with the merits review of her claim. She was on notice but did not take up the opportunities. The Tribunal considered all the evidence that the Delegate assessed, including the interviews, (as discussed at [57]-[62]) in conjunction with the responses to the Letters requesting further information.
The Tribunal referred to various statements made by the Applicant, Sponsor and their other witnesses. The Tribunal also referred to the photographs submitted and evaluated the various bank account statements provided. The Tribunal carefully considered all evidence available to it and completed its own assessment of the criteria in Reg 1.15A. The Tribunal came to the same conclusion as the Delegate in that the evidence of financial arrangements, domestic living arrangements, social aspects and commitment was inconsistent with and failed to demonstrate a genuine, committed spousal relationship. In considering whether there was a spousal relationship, the Tribunal gave some weight to the financial arrangements, and substantial weight to the living arrangements. The Court cannot accept the contention that anonymous allegations were not critical in assessing the relationship between the Applicant and Sponsor.
Ground 3 cannot be established.
CONCLUSION
The Applicant has not identified any jurisdictional error in the Tribunal’s Decision. It therefore follows that the Application must be dismissed.
At the Hearing, the Minister sought costs fixed in the sum of $5,400. This amount is below the schedule rate allowed in Pt 3 Div 1, Item 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth), applicable at the time of the Hearing (being $7,467). Accordingly, an Order will be made that the Applicant pay the Minister’s costs fixed in the sum of $5,400.
I certify that the preceding sixty-nine (69) numbered paragraphs are a true copy of the Reasons for Judgment of Her Honour Judge C. E. Kirton KC. Associate:
Dated: 27 April 2023
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