Tajek v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 568
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
Tajek v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 568
File number(s): SYG 1020 of 2018 Judgment of: JUDGE MANOUSARIDIS Date of judgment: 15 July 2022 Catchwords: MIGRATION – application for remedies under s 476 of the Migration Act 1958 (Cth) in relation to decision of Administrative Appeals Tribunal (Tribunal) affirming decision not to grant partner visa – whether Tribunal failed to actively engage with evidence relevant to whether sponsor and applicant had commitment to each other to the exclusion of others – relief granted. Legislation: Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) Sch 2, Pt 2
Migration Act 1958 (Cth) ss 5F, 65, 338, 348, 349, 352(2), 358, 359(1), 360, 368(1), 414, 476,
Migration Regulations 1994 (Cth) reg 1.15A, Sch 2, cl 309.211(2)(a)
Cases cited: Bondelmonte v Bondelmonte [2017] HCA 8
Minister for Home Affairs v Ogawa [2019] FCAFC 98
Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114
Minister for Immigration and Border Protection v SZMTA; CQZ15 v Minister for Immigration and Border Protection; BEG15 v Minister for Immigration and Border Protection [2019] HCA 3
Minister for Immigration & Multicultural Affairs v Anthonypillai [2001] FCA 274
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152
Division: General Number of paragraphs: 83 Date of hearing: 7 October 2021 Place: Sydney Counsel for the Applicants: Mr M Nesbeth, by video Solicitor for the Applicants: Legal Aid NSW Solicitor for the First Respondent: Mr K Eskerie of Sparke Helmore Lawyers, by video ORDERS
SYG 1020 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: KOROSH TAJEK
First Applicant
WAHIDA YAR MOHAMMADI
Second Applicant
ERSA YAR MOHAMMADI (and others named in the Schedule)
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE MANOUSARIDIS
DATE OF ORDER:
15 JULY 2022
THE COURT ORDERS THAT:
1.The applicants have leave to file an amended application in the form of the draft amended application that was sent by email on 6 October 2021 to the inbox of the associate to Judge Manousaridis.
2.The applicants file and serve the amended application by 22 July 2022.
3.The decision of the second respondent made on 8 March 2018 affirming the decision made by a delegate of the first respondent not to grant the applicants a Partner (Provisional) (Class UF) (Subclass 309) visa is quashed.
4.The second respondent review the delegate’s decision referred to in order 3 according to law.
5.Orders 3 and 4 shall have effect on the applicants’ filing the amended application pursuant to order 2.
6.The first respondent pay the applicants’ costs set in the amount of $7,853.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review 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
INTRODUCTION
The applicants apply for remedies under s 476 of the Migration Act 1958 (Cth) (Act) in relation to a decision of the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicants a Partner (Provisional) (Class UF) (Subclass 309) visa (Partner visa).
BACKGROUND
The first applicant (sponsor) is an Australian citizen who was born in Afghanistan. He arrived in Australia on 18 December 2010 as the holder of a Partner (Class UF) (Subclass 309) visa. The sponsor was granted that visa on the basis of his marriage to Ms HK. In July 2015, however, the sponsor and Ms HK divorced.
The second applicant (applicant) and her children (the third, fourth, and fifth applicants) are nationals of Afghanistan. On 8 August 2016 they applied for a Partner visa and a Partner (Migrant) (Class BC) (Subclass 100) visa. They did so on the basis of the applicant’s marriage to the sponsor.
Criteria for grant of Partner visa
To have been entitled to be granted a Partner visa the applicant had to satisfy, among other things, the criterion specified in cl 309.211(2)(a) of Schedule 2 (Schedule 2) to the Migration Regulations 1994 (Cth) (Regulations). That paragraph requires that at the time of application for a Partner visa the applicant must be the spouse or de facto partner of an Australian citizen. Subsection 5F(1) of the Act provides that a person is the “spouse” of another person if, under s 5F(2) of the Act, the two persons are in a “married relationship”. Under s 5F(2) of the Act, persons are in a “married relationship” if:
(a)they are married to each other under a marriage that is valid for the purposes of the Act; and
(b)they have a mutual commitment to a shared life as a married couple to the exclusion of all others; and
(c)the relationship between them is genuine and continuing; and
(d)they live together, or do not live separately and apart on a permanent basis.
Subsection 5F(3) of the Act provides that the Regulations “may make provision in relation to the determination of whether one or more of the conditions in paragraphs (2)(a), (b), (c) and (d) exist”. The Regulations have made provision, and this is to be found in reg 1.15A of the Regulations. Subregulation 1.15A(2) of the Regulations provides that, when considering an application for, among other subclasses of visas, a Partner visa, the Minister must consider all the circumstances of the relationship, including the matters set out in reg 1.15A(3) of the Regulations. Those matters are:
(a)the financial aspects of the relationship, including any joint ownership of real estate or other major assets; any joint liabilities; the extent of any pooling of financial resources, especially in relation to major financial commitments; whether one person in the relationship owes any legal obligation in respect of the other; and the basis of any sharing of day-to-day household expenses; and
(b)the nature of the household, including any joint responsibility for the care and support of children; the living arrangements of the persons; and any sharing of the responsibility for housework; and
(c)the social aspects of the relationship, including whether the persons represent themselves to other people as being married to each other; the opinion of the persons’ friends and acquaintances about the nature of the relationship; and any basis on which the persons plan and undertake joint social activities; and
(d)the nature of the persons’ commitment to each other, including the duration of the relationship; the length of time during which the persons have lived together; the degree of companionship and emotional support that the persons draw from each other; and whether the persons see the relationship as a long-term one.
The application for a Partner visa
The applicant supported her application for a Partner visa with a statutory declaration made by the sponsor on 3 June 2016.[1] The sponsor stated that he married the applicant “who was alway[s] a good family Friend”, and he was in contact with the applicant and her family “and her husband passed away, and I was divorced from my recent marriage, we mutualy [sic] and respectfully together decieded [sic] to spend the rest of our life toghter [sic] and in my recent trip to Afghanistan we lawfully married each other”. The applicant also submitted a number of documents, including a marriage certificate recording the date and place of the marriage contract.[2]
[1] CB92
[2] CB81
Before the delegate
By letter dated 6 October 2016 the delegate requested the applicants provide information, including “[m]ore wedding photographs depicting the applicant, sponsor and third parties”, “[e]vidence of communication between the applicant and the sponsor since their relationship started”, “[e]vidence of financial support between the applicant and the sponsor”, and a “[s]tatement of relationship of both the applicant and the sponsor”.[3]
[3] CB94-100
The applicant responded to this request by email.[4] In a section headed “Relationship history statements” the applicant said she and the sponsor had lived in the same neighbourhood; the applicant has known the sponsor’s sister for a long time, and the sponsor’s sister is the reason the applicant and the sponsor got to know each other; the sponsor’s sister spoke to the applicant about the sponsor’s intention to marry the applicant, and after a while the sponsor asked whether the applicant and her children would accept him as a husband and father. The sponsor’s last trip to Afghanistan was for the purpose of the sponsor marrying the applicant.
[4] CB101-109
On 24 January 2017 the delegate refused to grant the applicant a Partner visa.[5] The delegate was not satisfied the applicant and sponsor shared financial aspects in their relationship; or that they shared a joint household; or that the applicant and sponsor presented themselves to family and friends as being in a committed spousal relationship.
[5] CB110
Relevant to one of the grounds of review is the following passage from the delegate’s decision record:[6]
To ascertain further information in relation to the nature of the commitment of the relationship an attempt was made to contact the Sponsor on the 19 September 2016 and again 19 December 2016. The listed mobile number on form 47 of the Sponsor . . . is incorrect. An attempt was made to contact the Sponsor on the listed residential contact number . . . . . The number was answered by a female who identified herself as [Ms HK]. On established contact Ms [HK] advised that the Sponsor her husband was not at home, when the caller identified herself as a Departmental Officer Ms [HK] up to this point spoke English clearly requested a Dari interpreter. The Departmental Officer and Dari interpreter was advised that the Sponsor is no longer resident at the listed residential address of . . . Dee Why NSW and has since moved. When Ms [HK] was advised that departmental officers were unable to contact the Sponsor Ms [HK] was asked to provide any other contact numbers available for the Sponsor Ms [HK] provided a different mobile number to the number listed on form 47. She was able to provide the following contact number . . . . An attempt was again made to contact the Sponsor but, there was no response and a message was left for the Sponsor to return the call. To date there is no evidence through phone or email contact that the Sponsor has attempted to communicate with this office.
[6] CB119-120
The delegate found that, in the absence of conclusive evidence that the relationship is not exclusive between the parties, “there are residual concerns that the Sponsor remains resident in [Ms HK’s] household”.[7]
[7] CB119-120
Material provided to Tribunal
The applicants provided a number of documents to the Tribunal. First, they provided a statement made by the sponsor,[8] in which he stated as follows:
[8] CB126
(a)The sponsor married Ms HK in 2008 and then arrived in Australia.
(b)The sponsor and Ms HK separated because Ms HK, “due to her personal problems/reasons with joint relationship”, wanted to separate, and the sponsor “fully respected her decision”.
(c)After the divorce the sponsor decided to remarry, and he shared this matter with his sister who lives in Kabul. The sponsor’s sister recommended the applicant to the sponsor, who lives close by her, and whose family the sponsor and his family had known “from back in the days”. The sponsor’s sister mentioned the applicant is a widow and mother of three children.
(d)The sponsor went to Afghanistan in September 2015 and married the applicant in a small gathering at home in the presence of neighbours, family, and friends.
(e)The sponsor communicates daily with the applicant and her children via Viber.
(f)The applicant uses the address in Dee Why at which Ms HK lives “purely for the purpose of providing a safe postal address not residential address”, and Ms HK denies that she called the sponsor her husband. The sponsor set out the conversations Ms HK had with an officer from the Department of Immigration and Border Protection (as the Department of Home Affairs was then known) (Department). The sponsor gives the following account of the conversation (errors in original):
[Departmental officer]: hi how are you?
[Ms HK]:I’m good and you
[Departmental officer]: can I speak to [the sponsor].
[Ms HK]:No here, he moved.
[Departmental officer]: wait wait
the afghan translator put on the phone by the english speaking immigration officer who further asked in farsi for [the sponsor] which [Ms HK] further confirmed that he no longer lives at this address and [Ms HK] provide [the sponsor’s] mobile number, at no point any further conversation is establish . . .
(g)The sponsor addressed those parts of the delegate’s decision that dealt with the nature of the household, and the financial aspects of the sponsor’s and applicant’s relationship.
The applicants also provided a statement of Ms HK in which she set out her account of the conversation she had with the Departmental officer.[9] Ms HK stated that she received a call in which the Departmental officer asked for the sponsor; Ms HK, in her broken English, responded by stating the sponsor “not here”. The officer asked the applicant to “wait wait a second”, after which Ms HK was greeted by a Farsi speaking person who asked about the sponsor. The Farsi speaking person said they were trying to “get hold of” the sponsor. Ms HK said the sponsor no longer lived at the Dee Why address and that he had moved. In response to the Farsi speaking person’s request for the sponsor’s contact details, Ms HK said: “I provided him [the sponsor’s] mobile number and that was the end of the call”.
[9] CB133
Oral evidence given to the Tribunal
The sponsor, the applicant, Ms HK, and Ms N, a friend of the sponsor, gave evidence before the Tribunal.
Sponsor’s evidence
The sponsor first came to Australia in 2010 because he married Ms HK. He has one daughter and two sons, but not with Ms HK. The sponsor had his children with a woman who had passed away in Afghanistan.
According to the sponsor, he and Ms HK divorced in 2015 in the following circumstances:[10]
[TRIBUNAL MEMBER]: Okay. And were you separated prior to the divorce?
[SPONSOR]: So, yeah, for a little over a year we were separated and this was actually her initiation, the divorce. I didn't have any problems, but she didn't want to continue with the relationship.
[TRIBUNAL MEMBER]: Okay. So did you move away from home a year before you divorced?
[SPONSOR]: Yeah, after we came to the conclusion that we can't live together any longer, I left with my daughter (indistinct) and also my youngest son . . . okay, with . . . and . . . also was here for a while. We moved to another place we got to share - like into a shared house. So we were on friendly terms and we have a very good respectful relationship. We’ve never had any problem with each other.
[TRIBUNAL MEMBER]: So what was the reason for the break up?
[SPONSOR]: You have to ask her that.
[TRIBUNAL MEMBER]: Don’t you know?
[SPONSOR]: I asked her, “Why do you want a divorce?” and she said, “I really don’t want to explain. I just don’t want to continue this relationship.” And there was never any problem as far as violence or physical or verbal or any fighting issues like that. I’m not like that.
[10] T4:40-5.15. A copy of the transcript is annexed to the affidavit of K Wrigley 14.05.2018.
In about August 2015 the sponsor informed his sister who lived in Kabul that he was divorced and lonely. The sponsor’s sister spoke of the applicant who lived in the house next to the house the sponsor had from his grandfather. The sponsor’s sister told the sponsor that the applicant was a widow; she had three children; she is very nice, very active, and very respectful; and that the sponsor should consider marrying the applicant. The sponsor’s sister spoke with the applicant and then gave to the sponsor the applicant’s telephone number. The sponsor spoke to the applicant by telephone on three occasions, in two of which he told the applicant that his intention was to marry the applicant and, if the applicant thought it OK, the sponsor would tell his sister to go to the applicant and ask for her hand. In the third telephone conversation the applicant informed the sponsor that his sister can come for “the ritual of asking for hands”.[11] The sponsor’s sister later informed the sponsor that the applicant’s parents had agreed to the applicant marrying the sponsor.
[11] T6.20
The applicant then went to Kabul and he and the applicant married in September 2015. The sponsor remained in Kabul for around five to six months; and he and the applicant lived in a house the applicant’s father had given her. After the sponsor left Kabul the applicant remained in that house with her family joining her there.
The applicant lives with his daughter; he does not work, but is attending TAFE to learn English; and he relies on government support and support from his daughter.
The sponsor gave evidence in response to what the Tribunal said was the Department’s concerns about there being no evidence of any financial aspects of the relationship, about the number of photos the applicant had sent, and about the ongoing communication between the sponsor and the applicant. In relation to the financial arrangements, the sponsor said that after the delegate’s decision the sponsor informed the applicant that he knew the applicant worked, but if she needed money she could borrow it from the sponsor’s sister. The applicant did in fact borrow money from the sponsor’s sister, one time for USD$1,000, and the other for USD$500. Further, the sponsor visited Kabul for two months and paid all of the expenses for the family; and, before he left Kabul, he bought $300 worth of wood, and also bought the applicant food, and gave her $500.
The Tribunal also asked the sponsor questions about the Departmental officer’s call to Ms HK. The sponsor gave the following evidence:[12]
[12] T11.40-12.45
[TRIBUNAL MEMBER]: All right. Now, as you're probably aware, the Immigration Department said in their decision that they contacted your former wife to ask about - because they were unable to contact you and they say that when they made the phone call to your former wife, that she said that her husband was not at home and they say that she was referring to you.
[SPONSOR]: So the number they had called, it was - I didn't have that number for two years because I had lost that phone, all the information, and that was the number from two years before, but then I called my ex-wife and I said, “Why did you say that?” and she said, “That's not what I said. That’s like - that’s what they put down probably, but I can prove that’s not what I said. I'll come to the court and explain to them. It was misinterpreted.”
[TRIBUNAL MEMBER]: Okay. So why didn’t you update the department with your contact - your phone number?
[SPONSOR]: So I suppose he says they didn't - they had my email address. No-one contacted me since the old number didn't answer. Maybe they would have been - say, “Has your number changed?”
[TRIBUNAL MEMBER]: They said that your former wife gave them another phone number for you and they left - they tried to contact you but they couldn’t and they - and you didn’t return messages.
[SPONSOR]: I guess that was the number that was lost. I wasn’t using my - this number is the new number.
[TRIBUNAL MEMBER]: Okay. So you didn't get messages from the department?
[SPONSOR]: Only the last - the letters they have sent me, I realised - one of them I understood that they had called me.
[TRIBUNAL MEMBER]: So what's your current phone number?
[SPONSOR]: So it’s . . . .
[TRIBUNAL MEMBER]: Okay. So the Immigration Department in their decision, they say that your former wife gave them a contact number which was – it looks like it’s . . . .
[SPONSOR]: It's probably my old number.
[TRIBUNAL MEMBER]: Okay. But they had a different number that was listed on your sponsorship form which was also - which was incorrect. So they had two numbers for you and they couldn't get you on either of those.
[SPONSOR]: I don't know. I just had one number, that phone that I lost, but there was no other numbers.
[TRIBUNAL MEMBER]: All right.
[SPONSOR]: Yes, otherwise I would have - I mean, I would have no problem providing a new number. Perhaps it wouldn't get to this. Sorry.
The sponsor was also asked about his having included Ms HK’s address as his residential address. The sponsor gave the following evidence:[13]
[TRIBUNAL MEMBER]: Okay. The other question was the Immigration Department said that you listed your residential address as your ex-wife's address even after you were divorced.
[SPONSOR]: Okay. So it wasn't residential address, it was just for receiving mail purposes because we were living, my daughter and I, based on our economic problem at the time and there were also a few other single guys there and it wasn't a safe place, so I didn't trust the (indistinct) if we could use that address to receive mail because I was waiting for these - all these documents and he said, “Sure.”
[TRIBUNAL MEMBER]: Okay.
[SPONSOR]: Because I have a very good relationship with the kids with my ex-stepsons. We used to watch TV together. We used to play football together and to this day I still go sometimes and watch football with them.
[13] T13.5
Applicant’s evidence
The applicant gave evidence about the circumstances in which she met and married the sponsor; the number of children the sponsor had and the number of times he had been previously married; where the sponsor lives; how the applicant supports herself financially, and the financial support the sponsor has been providing; how the sponsor supports himself in Australia; how the applicant and sponsor have been communicating; and where the applicant and her children lived after the applicant married the sponsor.
Ms HK’s evidence
Ms HK said she and the sponsor divorced because:[14]
I didn’t want it because I was without a husband for a long time and then I got married, so I was on my own for a while and even though he’s a very nice guy, the kids also, but I just didn’t want it.
[14] T23.15
Ms HK was also asked about her conversation with the Departmental officer:[15]
[15] T23.20-24.20
[TRIBUNAL MEMBER]: Okay. So as you're probably aware, the Immigration Department in this case, they contacted you because they were unable to get hold of your former husband on the phone.
[MS HK]: Yes. Yes, they called me and they said we want to, “We need to talk to [the sponsor],” and I said, “[the sponsor] is not here, but I have - I had a number from two years ago,” and I gave them the number. I said, “Other than that, I don't know.”
[TRIBUNAL MEMBER]: So the Immigration Department seemed to think that you referred to him as your husband.
[MS HK]: No.
[TRIBUNAL MEMBER]: Okay.
[MS HK]: No, not at all, I didn’t say that.
[TRIBUNAL MEMBER]: And the Immigration Department were also concerned that your ex-husband had used your address - had listed your address as his even after you were divorced.
[MS HK]: Yeah, because where they were living was a shared house and it wasn’t safe. That’s why they asked my kids if they could use our mail address so at least the mail, the documents are safe.
[TRIBUNAL MEMBER]: Okay. So when you and your husband separated, where did he live and who did he go to live with?
[MS HK]: With his daughter and son. He lived with his kids.
[TRIBUNAL MEMBER]: Okay. So the phone number that you provided to the department, was that a phone number that you were able to contact him on or was that a current number of his? Do you know?
[MS HK]: No, that was from before when we talked, but other than that, I had no communication.
[TRIBUNAL MEMBER]: So you - after you divorced, did you stay in contact with each other or see each other?
[MS HK]: Once in a while maybe there was a hello. We don't have a problem with each other, but we have no relationships. No, like if I see him on the street or shopping or something, I say hi.
TRIBUNAL’S REASONS
The Tribunal:
(a)accepted the applicant and sponsor were married under a marriage that is valid for the purposes of the Act;[16]
(b)gave some weight to the evidence of financial assistance the sponsor provided to the applicant; and accepted that the sponsor’s and the applicant’s having limited incomes, and their living in different countries, make it difficult for them to combine the financial aspects of the relationship;[17]
(c)accepted the applicant and the sponsor would have had a limited opportunity to share their living arrangements, and could not have been able to establish a joint household, given their current circumstances; and, for that reason, the Tribunal did not place any weight on the lack of a shared household;[18] and
(d)placed some weight on the evidence regarding the social aspects of the relationship, that evidence consisting of the circumstances in which the applicant and the sponsor met, the communications between them, their decision to marry, and evidence from friends and relatives that they know the applicant and the sponsor and attended their wedding in Afghanistan.[19]
[16] CB237, [20]
[17] CB238, [24]
[18] CB238, [26]
[19] CB238, [28]
In the section of its reasons headed “Nature of the persons [sic] commitment to each other” the Tribunal said it had taken into account such matters as the duration of the relationship, the length of time the applicant and sponsor have lived together, the degree of companionship and emotional support they draw from each other, and whether they see the relationship as long term.[20] The Tribunal, however, also said it “had regard to the Department’s concerns that [the sponsor] and [Ms HK] may still be residing together and [the sponsor] is not in an exclusive relationship with” the applicant, that being a matter going to “the issue of whether [the sponsor] and [the applicant] have a commitment to each other as spouses”.[21]
[20] CB238, [29]
[21] CB238, [30]
The Tribunal noted the following matters:
(a)The sponsor and Ms HK denied that, in her telephone conversation with the Departmental officer, Ms HK referred to the sponsor as her husband.[22]
[22] CB238, [30]
(b)As the sponsor was not present during the telephone call that was made and answered by Ms HK, he is not able to comment on Ms HK’s response.[23]
[23] CB238, [30]
(c)In his written statement the sponsor said Ms HK had limited English ability, “but the immigration officer said she initially communicated with them in English until she learnt who the caller was”.[24]
[24] CB238, [30]
(d)The Tribunal had concerns about the sponsor’s explanation about why he had given Ms HK’s address as his own, namely, “where he lived with his daughter was not secure for receiving mail”. The Tribunal’s concerns were based on the following:[25]
(i)The account by the immigration officer of Ms HK’s reference to the sponsor as her husband “is strengthened by his using her address as his own”.
(ii)If it were true that the sponsor’s mail was not secure at his residence, he could have used a post office box.
(iii)The sponsor could not provide any reason for the alleged breakdown of his marriage with Ms HK, stating that the Tribunal would have to ask Ms HK.
(iv)The Tribunal did not consider credible Ms HK’s evidence that she did not want the marriage, even though she considered the sponsor to be a nice person, and there had not been any problems between them.
(e)The Department reported in its decision that the sponsor could not be contacted by phone; and “despite being given a number by [Ms HK] and a message being left for him, [the sponsor] did not call back”. The Tribunal further found:[26]
Although [the sponsor] said he was contactable by email, it would appear he wanted to avoid contact with the Department. Since [the sponsor] and his former wife are still in contact, (she readily appeared at the Tribunal hearing as a witness) it is likely she would have told him about the phone call.
[25] CB239, [31]
[26] CB239, [32]
On the basis of these matters the Tribunal found that the evidence did not support the conclusion that the sponsor and the applicant were genuinely committed to each other as spouses, or that they draw companionship and emotional support from each other; and the Tribunal was not satisfied the sponsor and applicant see the marriage as long-term.[27] Although the Tribunal did not expressly so find, the Tribunal’s conclusion implies it rejected the evidence Ms HK gave about the contents of her conversation with the Departmental officer; and that the Tribunal rejected the evidence the sponsor and Ms HK gave explaining the reason for which the sponsor used Ms HK’s address as his residential address. The Tribunal’s conclusion also implies its acceptance of the conversation set out in the delegate’s decision record of the Departmental officer’s telephone conversation with Ms HK on 19 September 2016 (Department account), and also to the Department’s concerns. That is so because the Tribunal said it had regard to the Department’s concerns that the sponsor and Ms HK may still be residing together, and that the sponsor is not in an exclusive relationship with the applicant; and this, in fact, is what the Tribunal itself concluded.
[27] CB239, [33]
The Tribunal accepted the applicant and the sponsor had concerns about the difficult and dangerous circumstances in Afghanistan for the applicant and her children, and that the sponsor may genuinely want to help the applicant and her family. The Tribunal, however, found this did not support claims that the sponsor and the applicant are in a genuine spousal relationship.[28]
[28] CB239, [34]
The Tribunal concluded as follows:[29]
Having regard to all the circumstances, on balance, the Tribunal is not satisfied that the applicant and sponsor have a mutual commitment to a shared life as husband and wife to the exclusion of all others, or that the relationship is genuine and continuing, and the couple do not live separately and apart on a permanent basis. As the applicant and sponsor are validly married, the alternative criteria of intention to marry in cl.309.211(3) is not met.
Given these findings the Tribunal is not satisfied that at the time the visa application was made and the time of this decision the parties were in a spousal relationship. Therefore the visa applicant does not meet cl.309.211 and cl.309.221.
[29] CB239, [36], [37]
GROUNDS OF APPLICATION
The currently filed application contains five grounds; and the parties’ written submissions address these five grounds. At the hearing, however, counsel for the applicants applied for leave to amend the application by filing an amended application in the form provided by email to my associate’s inbox on 6 October 2021. The proposed amended application seeks to add an additional ground (proposed ground 6). Mr Eskerie, who appeared for the Minister, opposed the application for leave to amend; first, because the applicants gave notice of the proposed amendment on the eve of the hearing; second, because the applicants gave no explanation for the delay in notifying the Minister; and, third, proposed ground 6 has no merit. Mr Eskerie, however, informed me he was in a position to make submissions about the merits of the proposed ground 6.
In those circumstances I indicated to the parties that I would hear submissions on the merits of proposed ground 6 with a view to making one of three possible decisions: refuse the application for leave to amend; allow the amendment but decide the applicants do not succeed on the amendment; or allow the amendment and uphold proposed ground 6.
I will begin by considering proposed ground 6, being the ground counsel for the applicants first addressed.
PROPOSED GROUND 6
Proposed ground 6 is as follows:
In assuming the Department’s account of a conversation between an immigration officer and [Ms HK] was correct, the Tribunal fell into jurisdictional error.
Particulars
a. The Tribunal placed significant weight on the purported contents of a telephone phone call between an unidentified officer of the First Respondent and [Ms HK] to find that s 5F of the Migration Act was not satisfied
b. The purported evidence was limited to remarks made in the decision of the delegate of the Department of Immigration and Border Protection (as it then was) dated 24 January 2017
c. The purported evidence was critical to the Tribunal’s decision to affirm the delegates’ decision to refuse to grant the Partner (Provisional) (Class UF) visa
d. The Tribunal assumed the account of the telephone call found in the delegate’s decision to be correct and the accounts provided by and on behalf of the Applicants to be incorrect
e. In the circumstances, the Tribunal:
i. used the account of the telephone call in the delegate’s decision in a way which was arbitrary, irrational and lacking in evident or intelligible justification; and
ii. did not provide proper, genuine and realistic consideration to the evidence in support of the genuineness of the relationship
Should leave to amend be granted?
For reasons that will become apparent, I am satisfied there is merit in proposed ground 6. Further, although the applicant has given no explanation for the lateness of the amendment, the Minister has not submitted he has been prejudiced by the late amendments. On the other hand, given I have found proposed ground 6 has merit, the applicants will be prejudiced if I were to refuse the applicants leave to amend the application by adding proposed ground 6. I will therefore grant the applicants leave to rely on proposed ground 6 of the amended application.
Parties’ submissions
Counsel for the applicants submitted the Tribunal did not intellectually engage with the accuracy of the Department account. Counsel for the applicants accepted the Tribunal was entitled to consider the Department account; but in response to my question what more the Tribunal ought to have done in considering the Department account, counsel gave as an example the Tribunal’s accepting the Department account that Ms HK had pretended not to speak English as soon as the Departmental officer identified himself, but the Tribunal asking no questions of Ms HK about her ability to speak English.
Mr Eskerie, for the Minister, construed proposed ground 6 as a claim that the Tribunal simply assumed that the Department account was correct. Mr Eskerie submitted that that is an unfair reading of what the Tribunal did. Mr Eskerie submitted the Tribunal put the Department account to the sponsor and the applicant; it addressed the evidence given in response; made findings on credibility; and, on that basis, the Tribunal made a finding about what is likely to have occurred. In short, Mr Eskerie submitted the Tribunal followed an entirely orthodox approach to fact finding; and it was not suggested it was not reasonably open to the Tribunal to make the findings it made.
The following questions arise:
(a)What is the proper characterisation of proposed ground 6?
(b)Properly characterised, would proposed ground 6, if established, disclose jurisdictional error by the Tribunal?
(c)If (b) is answered in the affirmative, have the applicants established proposed ground 6?
Characterising proposed ground 6
Proposed ground 6 cannot reasonably be interpreted as a claim that the Tribunal simply accepted as true the Department account; proposed ground 6, and the other grounds of application, indicate the applicants recognise that the Tribunal asked both the sponsor and Ms HK questions about the Department account and the Department’s concerns; and that the Tribunal referred at least to some of the evidence that was relevant to assessing the truth of the Department account and the Department’s concerns. Rather, the essence of proposed ground 6 is that, although the Tribunal referred to some of the evidence that was relevant to assessing the truth of the Department account, the Tribunal did not actively engage with all of the evidence that was relevant to assessing the truth of the Department’s account; and this failure was material because the Tribunal relied on the truth of the Department account in finding that the evidence did not support the conclusion that the sponsor and the applicant were genuinely committed to each other as spouses, or that they draw companionship and emotional support from each other. These findings, in turn, are essential elements of the Tribunal’s reasons for concluding it was not satisfied the applicant and the sponsor are in a spousal relationship.
Would proposed ground 6, if established, disclose jurisdictional error?
The jurisdiction the Tribunal was required to exercise in relation to the applicants’ application for review is that conferred by s 348(1) of the Act: the Tribunal’s jurisdiction was to “review” the delegate’s decision, there being no issue that the delegate’s decision is a “Part-5 reviewable decision” within the meaning of s 338 of the Act.
The ends for which s 348(1) of the Act requires the Tribunal to review a decision in relation to which an application for review has been made are specified in s 349(2) of the Act. These are to affirm, vary, or set aside the decision under review and, where the Tribunal sets aside the decision, to substitute a new decision. To achieve these ends s 349(1) of the Act grants the Tribunal all the powers and discretions that are conferred by the Act on the person who made the decision that is the subject of the application for review; and, under s 349(3) of the Act, if the Tribunal varies the decision under review, or sets aside the decision and substitutes a new decision, the decision, as varied or substituted, is taken to be a decision of the Minister. In broad terms, therefore, s 349 of the Act requires the Tribunal to form “the requisite state of satisfaction under s 65 of the Migration Act in respect of the criterion (or criteria) for a visa in issue before it”,[30] the relevant criterion in the case before me being that prescribed by cl 309.211(2)(a) of Schedule 2.
[30] Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114, at [32]. This was said in the context of s 415 of the Act which is equivalent to s 349 of the Act.
Section 348 of the Act not only requires the Tribunal to form the requisite state of satisfaction under s 65 of the Act. It also requires the Tribunal to do the very thing s 65 of the Act requires the Minister (or a delegate of the Minister) to do, namely, to “consider” the application for a visa, in this case, a Partner visa. That point was made in relation to s 414 of the Act (being equivalent to s 348 of the Act) by the Full Federal Court in Minister for Immigration & Multicultural Affairs v Anthonypillai:[31]
The word “consider” is defined in the Oxford English Dictionary, in part, as:
“to view or contemplate attentively . . . examine . . . scrutinise . . . to fix the mind upon . . . to reflect upon”.
It is precisely that obligation which s 414 imposes, albeit indirectly, upon the Tribunal.
[31] Minister for Immigration & Multicultural Affairs v Anthonypillai [2001] FCA 274, at [71]-[72]
It has also been said that the “term “consider” imports an obligation to give proper, genuine and realistic consideration”;[32] and that part of that obligation, as it applies to information, requires the application of “an active intellectual process” directed at the information.[33]
[32] Bondelmonte v Bondelmonte [2017] HCA 8, at [43]
[33] Minister for Home Affairs v Ogawa [2019] FCAFC 98, at [101]
That which the Tribunal must consider, in the first instance, is information that has been communicated to it through the avenues provided by the Act. The information will always include the materials s 352(2) of the Act requires the Secretary of the Department to provide to the Tribunal; and may include evidence and submissions the applicant gives to the Tribunal when he or she appears before the Tribunal in response to an invitation the Tribunal gives under s 360 of the Act, written statements provided under s 358 of the Act, and information the Tribunal itself gets under s 359(1) of the Act.
The Tribunal, however, is required to consider or have regard to information for particular purposes. The overall purpose, of course, is to determine whether, on the information before it, the Tribunal is satisfied or is not satisfied that the applicant satisfies the criteria governing the grant of the visa for which the applicant had applied. But the Tribunal can determine that question only after it considers or has regard to the information before it for particular purposes. These purposes are suggested by s 368(1) of the Act, which requires the Tribunal, where it makes a decision, to make a written statement which sets out: the Tribunal’s decision on the review, its reasons for decision, and its findings on any “material questions of fact”; and which refers to the evidence or any other material on which its findings of fact are based.
The expression “material questions of fact” may be taken to mean the set of facts it is necessary for the Tribunal to be satisfied exist or do not exist before it can be satisfied an applicant meets the criteria for the grant of the visa in question. What those material facts are in any given case will depend on the criteria that must be met for the grant of the class of visa that is the subject of the application for review. Thus, in any given case, the Tribunal will have to consider what the material facts are in relation to the class of visa that is the subject of review, and then consider whether, on the evidence that is before it, the Tribunal is satisfied or not satisfied each of the material facts exist. In any given case this may require the Tribunal to engage in a number of tasks. One arises where there is inconsistency or conflict in the evidence before it. Here the Tribunal will be required to determine whether the inconsistency can be resolved and, if so, how. A second task might be to determine whether inferences should be drawn from accepted or found facts and, if so, what inferences should be drawn.
The requirement that the Tribunal “consider” an application for review – that is “to view or contemplate attentively . . . examine . . . scrutinise . . . to fix the mind upon . . . to reflect upon” – applies to these tasks. It particularly applies to conflicting evidence that is before the Tribunal. The Full Federal Court in Minister for Immigration and Border Protection v MZYTS described what considering evidence entails as follows:[34]
In the context of two or more pieces of apparently pertinent, but contradictory, evidence an expression of a preference for some evidence over other evidence generally requires an articulation of the different effects of the evidence concerned, and then some indication as to why preference is given. All these are matters for the trier of fact.
[34] Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114, at [50]
The Full Federal Court in MZYTS used other words to express what is entailed in the Tribunal’s considering evidence; and it did so for the purpose of determining whether the Refugee Review Tribunal (RRT) in that case failed to consider evidence in the form of country information. The Full Federal Court found the RRT “did not assess in any real or active way” [35] the relevant material, and there was the “absence of any evaluation”[36] of the material; and, for that reason, concluded the RRT did not consider that evidence.
[35] Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114, at [39]
[36] Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114, at [45]
The Tribunal, therefore, will make a jurisdictional error in the following circumstances:
(a)First, the Tribunal fails to “consider” evidence in the sense of failing to give the evidence proper, genuine, and realistic consideration, or otherwise fails to direct to the evidence an active intellectual process. That will occur where, for example, there are two items of evidence that have different effects and the Tribunal prefers one item of evidence over the other without indicating why the preference is given. It will also occur where it can be said the Tribunal did not “assess in any real or active way” [37] the relevant evidence, or where there was the “absence of any evaluation”[38] of the evidence.
(b)Second, the Tribunal’s failure to consider the evidence in the sense described in (a) is material.[39] Such failure will be material if the evidence is relevant to a material fact and, had the Tribunal considered the evidence, that could realistically have resulted in the Tribunal making a different finding in relation to the material fact to which the evidence was relevant and, for that reason, could realistically have resulted in a different decision.
[37] Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114, at [39]
[38] Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114, at [45]
[39] Minister for Immigration and Border Protection v SZMTA; CQZ15 v Minister for Immigration and Border Protection; BEG15 v Minister for Immigration and Border Protection [2019] HCA 3, at [45]
Proposed ground 6, properly construed, claims a jurisdictional error of this sort.
Did the Tribunal fail to consider the evidence relevant to the Department account?
There was before the Tribunal conflicting evidence about the contents of a conversation the applicants did not dispute occurred between a Departmental officer and Ms HK in September 2016. The conflict centred on whether, as recorded in the Department account, Ms HK referred to the sponsor as her husband.
The Tribunal referred to the sponsor and to Ms HK having responded to the Department account, and to their both having denied that Ms HK referred to the sponsor as her husband. As I have already noted, the Tribunal preferred the Department account; and it relied on the following:
(a)The Tribunal found the sponsor’s denial not to be relevant because he was not present at the conversation between Ms HK and the Departmental officer.
(b)The sponsor used Ms HK’s address as his address, a circumstance the Tribunal found “strengthened” the Department account.
(c)The Tribunal did not accept the sponsor’s and the applicant’s evidence that the sponsor used Ms HK’s address as his postal address because where he lived with his daughter was not secure for receiving mail; and the basis for the Tribunal’s not accepting this evidence was that, if it were true, the sponsor could have used a post office box.
(d)The Tribunal did not consider credible Ms HK’s evidence about the reasons they divorced.
This manifests an engagement with some of the evidence that was before the Tribunal. There are, however, four items or sets of items of evidence the Tribunal does not appear to have assessed, or otherwise weigh, with the evidence the Tribunal did address when considering whether to accept the explanation the sponsor and Ms HK gave for the sponsor using Ms HK’s address.
(a)The first is the evidence Ms HK and the sponsor gave about where the sponsor lived. The sponsor said he and his children moved into “a shared house”;[40] there were “a few other single guys there and it wasn’t a safe place”, and the sponsor did not trust he could use “that address to receive mail because I was waiting for . . . all these documents”;[41] and Ms HK said that the sponsor and his daughter “were living” in a “shared house and it wasn’t safe. That’s why they asked my kids if they could use our mail address so at least the mail, the documents are safe”.[42] If true, that would render more probable the truth of the evidence the sponsor and Ms HK gave about why the sponsor used Ms HK’s address rather than his own because where he lived was not secure for receiving mail and that it would be secure if his mail were sent to Ms HK’s address. The sponsor and Ms HK gave evidence that Ms HK lived in a unit; and it is plausible that mail delivered to a unit is more secure than mail delivered to a shared house of the sort the sponsor said he moved into.
(b)The second item of evidence with which the Tribunal did not appear to have engaged when considering whether to accept the explanation the sponsor and Ms HK gave for the sponsor using Ms HK’s address is that concerning the sponsor’s economic circumstances. The applicant gave evidence that he lives with his daughter; he does not work, but is attending TAFE to learn English; and he relies on government support and support from his daughter. The sponsor also said that he moved into shared accommodation “based on our economic problem”.[43] If this evidence were accepted, it would tend to undermine the only ground the Tribunal gave for not accepting the evidence the sponsor and Ms HK gave for the sponsor using Ms HK’s address as his address for mail, namely, that if the sponsor was concerned about the security of his mail, the sponsor could have used a post office box. Had the Tribunal considered the sponsor’s limited economic means, the Tribunal may well have found that obtaining a post box would not be economically feasible for a person of limited means, or, at least, would not make economic sense to such person given the sponsor could have used Ms HK’s address for his mail at no cost.
(c)The third item of evidence is the address the sponsor stated in the statutory declaration he made on 3 June 2016.[44] The sponsor gives as his address an address that is different from Ms HK’s address. This is reasonably capable of supporting the sponsor’s and Ms HK’s evidence that the sponsor did not live with Ms HK and that he used Ms HK’s address for the reasons the sponsor said he used that address.
(d)The fourth item or set of items of evidence with which the Tribunal did not appear to have engaged is the sponsor’s assertion that Ms HK has “very limited [E]nglish speaking ability”, Ms HK’s evidence that she engaged in her telephone conversation with the Departmental officer “with my broken [E]nglish”, and to Ms HK giving evidence to the Tribunal, not in English, but through an interpreter. Had the Tribunal accepted that evidence as true there is a prospect that the Tribunal may have given less weight to the Department account or may even not have accepted it.
[40] T5.5
[41] T13.10
[42] T23.45
[43] T13.5
[44] CB92
Given the relevance of these items of evidence to assessing the contents of the conversation Ms HK had with the Departmental officer, the inference that is to be drawn from the Tribunal not having referred to these items is that the Tribunal did not, as it was required to do, assess the evidence, or otherwise weigh this evidence against the evidence to which it did refer. Had the Tribunal done so, that could realistically have resulted in the Tribunal making a different assessment of the Department account, and, therefore, of the “Department’s concerns” based on that account. How?
(a)Had the Tribunal accepted the first, second, and third items of evidence, there is a realistic possibility that the Tribunal would have accepted the sponsor’s and Ms HK’s explanation for the sponsor using Ms HK’s address. That, in turn would have removed what the Tribunal found to be a factor that strengthened the account the Departmental officer gave that Ms HK referred to the sponsor as her husband; and it realistically could also have removed the sponsor’s having used Ms HK’s address as his residential address as a basis for not accepting the sponsor and applicant share a commitment to each other.
(a)Had the Tribunal assessed the fourth set of items of evidence, there is a realistic prospect that the Tribunal would have found that Ms HK’s capacity to speak English was poor, just as the sponsor had asserted it to be. Had the Tribunal found that Ms HK’s capacity to speak English to be limited, that may realistically have resulted in the Tribunal not accepting the Department account as being sufficiently reliable, either because the Tribunal may have found that Ms HK’s capacity to speak English rendered implausible the Department account, or that the Department account reflects an incorrect or incomplete understanding of what Ms HK said.
Conclusion on proposed ground 6
For these reasons, the applicants succeed on proposed ground 6.
GROUND 1
Ground 1 is as follows:
In finding that the First Applicant appeared to be avoiding contact with the Department the Tribunal fell into jurisdictional error.
Particulars
a. The Tribunal noted that an officer of the Department had been unable to contact the First Applicant by telephone.
b. The Tribunal did not challenge the First Applicant’s explanation that he had lost his phone but was contactable by email.
c. It was not put to the First Applicant that he was attempting to avoid immigration officers.
d. In the circumstances, the Tribunal:
i. took into consideration irrelevant considerations in undertaking its statutory task;
ii. based its finding on speculation and suspicion rather than reasonably probative evidence;
iii. engaged in reasoning which was unreasonable and illogical; and
iv. denied the First Applicant procedural fairness.
Parties’ submissions
In their counsel’s written submissions, the applicants submit that:[45]
(a)in finding the sponsor was attempting to avoid the Department (impugned finding), the Tribunal appears to have ignored the sponsor’s evidence that he had lost his phone, and the fact that, although the sponsor had an email contact address, the Department did not attempt to contact the sponsor by email;
(b)in concluding the sponsor was seeking to avoid the Department, the Tribunal assumed Ms HK had attempted to contact the sponsor, but there was no evidence to support this assumption; and, if anything, the evidence before the Tribunal was against the Tribunal so assuming because Ms HK said that in her telephone conversation with the Departmental officer she told the Departmental officer that she had a number from two years ago;
(c)the Tribunal relied on the impugned finding to undermine the sponsor’s credibility on which, in turn, the Tribunal relied in concluding it placed “limited weight on the evidence submitted overall in support of the applicant and sponsor having a genuine and continuing spouse relationship at the time of application and at the time of the decision”;
(d)the impugned finding was central to the Tribunal’s assessment of the sponsor’s credibility and its ultimate finding that s 5F of the Act was not satisfied;
(e)the impugned finding was an “error of the kind identified in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 in that it was a new matter which the Tribunal considered to be dispositive but the Department did not”, and, for that reason, as a matter of procedural fairness, the sponsor should have been given an opportunity to respond; and
(f)further, and in any event, the impugned finding was based on speculation and suspicion, rather than reasonably probative evidence.
[45] Applicants’ Outline Submissions, [9]-[15]
The Minister, in his written submissions, submits:
(a)the transcript of the hearing reveals the Tribunal discussed with the sponsor the Department was unable to contact him; and the Tribunal asked the sponsor to expand on the aspects of the account that it considered may be important to the decision;
(b)the Tribunal was not obliged to give the applicant a running commentary on what it thought about the sponsor’s evidence; and
(c)the Tribunal was not illogical or unreasonable in making the impugned finding.
Determination
It is true the Tribunal found it appeared the sponsor wanted to avoid contact with the Department; and further found that it is likely Ms HK told the sponsor about the call from the Departmental officer. I am not satisfied, however, that these findings were in any sense dispositive of the Tribunal’s determination of the application before it. What was dispositive is the Tribunal’s preferring the Department account over Ms HK’s account of the conversation Ms HK had with the Departmental officer. In preferring the Department account, the Tribunal relied on the sponsor’s having used Ms HK’s address; on its rejection of the sponsor’s and Ms HK’s explanation for the sponsor’s using Ms HK’s address; and on the Tribunal’s not accepting as credible the sponsor’s and Ms HK’s explanation for their divorce. The Tribunal did not, however, rely on its finding that the sponsor wanted to avoid contact with the Department, or on its finding that it is likely Ms HK would have told the sponsor of the call from the Departmental officer.
Even if the Tribunal’s findings that the sponsor wanted to avoid contact with the Department, and that it is likely Ms HK would have told the sponsor of the call from the Departmental officer, can be characterised as dispositive, the Tribunal did not deny the sponsor and the applicant procedural fairness by not putting to the sponsor or to Ms HK the possibility of its making findings to that effect. The question to which the Tribunal’s findings were relevant is why the sponsor did not contact the Department after the Department telephoned the number Ms HK gave the Departmental officer and left a message. That question was brought to the attention of the sponsor and Ms HK by the Tribunal’s having put to Ms HK and the sponsor the Department’s having attempted to contact the sponsor by telephoning the number Ms HK had given the Departmental officer and leaving a message. The sponsor gave an explanation – he had lost his mobile phone; and Ms HK supported this explanation by giving evidence that she had given the Departmental officer the number she had from two years ago.
The Tribunal was not bound to accept this evidence; and it was open to it to consider what best accounted for the sponsor’s failure to return the message left by the Department. Was it best explained by the sponsor’s evidence, which was to the effect that Ms HK had given a two-year-old telephone number, and the sponsor had lost his telephone? Or was it best explained by what the Tribunal had come to hold, namely, that the sponsor wanted to avoid contact with the Department because Ms HK is likely to have informed him of the Departmental officer’s call. The Tribunal preferred the latter explanation; but it was not obliged to give the sponsor or Ms HK notice that it was not going to accept the sponsor’s and Ms HK’s evidence for those reasons. The sponsor and Ms HK had given all the evidence they could have given on the question.
I lastly turn to whether the impugned finding itself is irrational or unreasonable. Given the Tribunal preferred the Department account over Ms HK’s account of the conversation between her and the Departmental officer, it was rational and reasonable for the Tribunal not to accept the sponsor’s having lost his phone as an explanation for the sponsor’s not responding to the messages the Department left on the telephone number Ms HK gave to the Departmental officer.
Conclusion
For these reasons, ground 1 fails.
GROUND 2
Ground 2 is as follows:
The Tribunal failed in its statutory task to consider all matters required by r 1.15A(3) of the Migration Regulations 1994.
Particulars
a. Subrule 1.15A(3)(b) required the Tribunal to consider the nature of the visa applicants’ household, including their living arrangements.
b. The Tribunal failed to make findings with respect to, or otherwise provide proper, genuine and realistic consideration to the First Applicant’s living arrangements.
c. The Tribunal failed to take into consideration a relevant consideration.
Parties’ submissions
In their counsel’s written submissions the applicants submit that, although the Tribunal considered the nature of the household, it made “no particular finding i[n] that regard”, but instead concluded that, having regard to their circumstances, the Tribunal placed no weight on the lack of a shared household.[46] The basis of that submission is that the Tribunal had regard to the “Department’s concerns that” the sponsor and Ms HK “may still be residing together and [the sponsor] is not in an exclusive relationship with” the applicant; but “it was incumbent upon the Tribunal to make such a finding”, that finding being the living arrangements “particularly with respect to” the sponsor. The Tribunal failed to do that, but instead “merely echoed the Department’s “concerns””.[47] The applicants also submit the Tribunal ought not to have had regard to the Department’s concerns because:[48]
(a)the Department’s concerns hinged on a telephone call between an unidentified immigration officer and Ms HK in relation to which no evidence had been presented; and
(b)the Tribunal did not put to Ms HK that, according to the Department account, Ms HK sought to give the impression that her English language skills were poor once she realised she was speaking to a Departmental officer.
[46] Applicants’ Outline Submissions, [17]
[47] Applicants’ Outline Submissions, [22]
[48] Applicants’ Outline Submissions, [18], [20]
In his written submissions the Minister submits ground 2 mischaracterises the Tribunal’s reasons. The Minister submits the Tribunal plainly considered the applicants’ living arrangements but, having considered that question, decided not to place weight on the applicants’ lack of a shared household, given their current circumstances, namely, their living in different countries.
Determination
Ground 2, considered in light of the submissions made in support of it, appears to make three claims. The first is that the Tribunal did not consider the nature of the household between the applicant and the sponsor. That claim cannot be accepted. The Tribunal considered the nature of the applicants’ household. It accepted the sponsor and applicant would have had limited opportunity to share their living arrangements, and they have not been able to establish a joint household “given their current circumstances”. That is a reference to the applicant and the sponsor not having established a joint household because they lived in different countries. The Tribunal would have been entitled to regard the absence of evidence of a joint household as pointing to the absence of a spousal relationship; but, given the Tribunal accepted that the absence of a joint household was due to the sponsor and the applicant living in different countries, it decided not to regard the absence of evidence of a joint household as pointing to their not being a genuine spousal relationship.
The second claim ground 2 may be taken to make is that it was not open to the Tribunal to made a finding about the nature of the household between the applicant and the sponsor without making a positive finding about the living arrangements of the applicant; and the Tribunal could not do so only on the basis of the Department’s concerns that the sponsor and Ms HK may still be residing together and the sponsor is not in an exclusive relationship with the applicant. There are two answers to this claim. The first is, although the Tribunal did have regard to the Department’s concerns for the purpose of assessing the nature of the applicant’s and the sponsor’s commitment to each other, it did not have regard to the Department’s concerns for the purpose of the nature the household. Second, the task of the Tribunal was to determine whether it was satisfied that a set of facts relevant to the existence of a spousal relationship exist. That means it was open to the Tribunal not to be satisfied that an asserted set of facts exist because it has concerns about the evidence presented in support of such asserted fact or state of affairs. The Tribunal is not obliged to make positive findings of fact contrary to the set of facts asserted before the Tribunal may be entitled not to accept the asserted facts.
The third claim ground 2 may be taken to make is that it was not open to the Tribunal to have regard to the Department’s concerns, first, because these concerns hinged on a telephone call between an unidentified immigration officer and Ms HK in relation to which no evidence had been presented; and, second, the Tribunal ought to have put to Ms HK, but failed to do so, that during her conversation with the Departmental officer she sought to give the impression that her English language skills were poor once she realised she was speaking to a Departmental officer. I do not accept either of these claims. As to the first claim, the Tribunal is not bound by the rules of evidence, and it was entitled, therefore, to receive as evidence the Department’s concerns and assess for itself whether it had the same concerns. As to the second claim, the Tribunal referred Ms HK to the Department’s concerns, and Ms HK gave evidence. Ms HK was given an opportunity to give evidence of what she says occurred during the conversation with the Departmental officer, and she gave her account.
Conclusion
For these reasons, ground 2 fails.
GROUND 3
Ground 3 is as follows:
The finding that the First Applicant could have provided a correspondence address other than that of his ex-wife without reference to the First Applicant was infected by jurisdictional error.
Particulars
a. The Tribunal doubted the First Applicant’s claim that he had provided the Department with his ex-wife’s address as his mailing due to concerns that he could not securely receive mail at the address at which he resided.
b. A significant factor in doubting this claim was the assumption that the First Applicant could have used a post office box.
c. This assumption was a matter which was not put to the First Applicant for comment.
d. In coming to this conclusion without reference to the First Applicant, the Tribunal failed to accord the First Applicant procedural fairness.
Parties’ submissions
Ground 3 is framed in terms of procedural fairness; but in the applicants’ counsel’s written submissions the applicants claim it was unreasonable and illogical for the Tribunal to have relied on an assumption that the sponsor could have addressed his concerns for secure mail by using a post box, rather than Ms HK’s address. The basis of that submission was the evidence relating to the sponsor’s economic position, which showed he was of modest means who relied on support from the government and his daughter.
Determination
The Tribunal was not bound to inform the applicants of the possibility that the Tribunal would not accept the sponsor’s and Ms HK’s evidence explaining the sponsor’s use of Ms HK’s address because the Tribunal was of the view that if the sponsor truly wanted to secure his mail, the sponsor could have arranged a post box. As for the claim the Tribunal acted irrationally or unreasonably in relying on the assumption that the sponsor could have obtained a post box to address his security concerns, I have already found that the Tribunal did not assess or weigh with the other evidence it did consider the evidence of the sponsor’s economic situation. I am not prepared to find, however, that no reasonable or rational decision maker could have formed the view that, if the sponsor truly wanted to secure his mail, the sponsor could have arranged a post box.
Conclusion
For these reasons, ground 3 fails.
GROUND 4
Ground 4 is as follows:
In concluding that the First Applicant had not provided “any reason for the alleged breakdown of his relationship with [his ex-wife]”, the Tribunal failed to have regard to the evidence before it.
Particulars
a. The Tribunal failed to consider that the First Applicant stated that the relationship ended by mutual agreement and that the First Applicant’s ex-wife wanted to end the relationship.
b. The Tribunal failed to consider that the First Applicant’s ex-wife stated that she wanted to be on her own.
c. In the circumstances the Tribunal failed to consider all aspects of the relationship between the First Applicant and the Second Applicant.
This ground can be addressed briefly. The Tribunal referred to both the sponsor’s and Ms HK’s evidence about the reasons for their divorce; and it regarded both as lacking in credibility.[49]
[49] CB239, [31]
Ground 4, therefore, fails.
GROUND 5
Ground 5 is as follows:
The Tribunal failed to consider all evidence before it with respect to the nature of the relationship.
a. The Tribunal failed to consider statutory declarations and letters of support with respect to the nature of the relationship between the Second Applicant and the First Applicant from the following persons:
i. Form 888 in support of the Second Applicant’s visa application executed 18 July 2016 by family friend of the Second Applicant.
ii. Form 888 in support of the Second Applicant’s visa application executed 18 July 2016 by the distant relative of the First Applicant, and adult child of the First Applicant’s ex-wife.
iii. Letter of support by two friends of the First Applicant residing in Marayong and Dee Why New South Wales.
iv. Senior Project Officer / INPROL Facilitator – Rule of Law - United States Institute of Peace
v. Friend of the First Applicant and Director Beyond Blue Painting
This ground can also be addressed briefly. The Tribunal in paragraph 28 of its reasons referred to statements having been submitted from friends and relatives who declared they know the parties and attended their wedding in Afghanistan. It is not clear whether the Tribunal intended also to refer to the documents identified in the particulars to ground 5. I am not prepared, however, to infer that the Tribunal was unaware of their existence and, therefore, did not consider them. That is because the contents of these documents barely have any probative value in favour of any of the matters the Tribunal was required to consider when determining whether the sponsor and applicant are in a spousal relationship.
Ground 5, therefore, also fails.
DISPOSITION AND COSTS
The applicants have succeeded on proposed ground 6. I therefore propose to order as follows:
(a)The applicants have leave to file an amended application in the form of the draft amended application that was sent by email on 6 October 2021 to my associate’s inbox.
(b)The applicants file and serve the amended application by 22 July 2022.
(c)The Tribunal’s decision be set aside, and the Tribunal determine the applicants’ application for review according to law.
At the hearing the parties’ representatives agreed that costs should follow the event. Counsel for the applicant claimed that the applicant’s costs be in the amount provided for by Part 2 of Schedule 2 to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), being $7,853. I will therefore also order that the Minister pay the applicants’ costs set in the amount of $7,853.
I certify that the preceding eighty-three (83) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis. Associate:
Dated: 15 July 2022
SCHEDULE OF PARTIES
SYG 1020 of 2018 Applicants
Fourth Applicant:
ATUSA YAR MOHAMMADI
Fifth Applicant:
SAM YAR MOHAMMADI
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