Talukder v Minister for Immigration and Anor (No.2)

[2020] FCCA 2116

FEDERAL CIRCUIT COURT OF AUSTRALIA

TALUKDER v MINISTER FOR IMMIGRATION & ANOR (No.2) [2020] FCCA 2116

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Partner (Temporary) (Class UK) visa – whether the Tribunal conducted a proper review – whether the Tribunal failed to consider a core issues of the applicant’s claim – no jurisdictional error made out – amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5F, 347, 348, 357A, 359AA, 376, 476

Administrative Appeals Tribunal Act 1975 (Cth), s.7

Migration Regulations 1994 (Cth), reg.1.15A.

Applicant: BABUL MIAH  TALUKDER

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2117 of 2019

Judgment of: Judge Street

Hearing date: 31 July 2020

Date of Last Submission: 31 July 2020

Delivered at: Sydney

Delivered on: 31 July 2020

REPRESENTATION

Counsel for the Applicant: Mr L Bocabella, via Microsoft Teams

Solicitors for the Applicant: Hunt Lawyers

Solicitors for the Respondents: Ms G Ng, Australian Government Solicitor, via Microsoft Teams

ORDERS

1. Leave is granted to the applicant to rely upon the amended application filed on 31 July 2020.

2. The amended application is dismissed.

3. The applicant pay the first respondent’s costs fixed in the amount of $5,400.00.

DATE OF ORDER: 31 July 2020

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2117 of 2019

BABUL MIAH TALUKDER

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”), in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 31 July 2019, affirming the decision of a delegate of the first respondent (“the Delegate”) not to grant the applicant a Partner (Temporary) (Class UK) visa. 

2. The applicant is a citizen of Bangladesh, who arrived in Australia on 16 March 1996 on a subclass TR-676 visa, which ceased on 16 April 1996. The applicant lodged a protection application on 4 April 1996, and the application was withdrawn on 18 October 1996. The applicant then became an unlawful noncitizen from 16 November 1996, until granted a bridging visa on 16 February 1999, in association with a protection visa application lodged on 15 February 1999. That application was refused on 15 March 1999. 

3. The applicant appealed that decision to the Refugee Review Tribunal (“RRT”) on 8 April 1999, and the decision was affirmed on 26 June 2000. The applicant applied for review on 9 August 2000, and was unsuccessful on 5 March 2001. The applicant appealed to the High Court on 27 May 2003, and the matter was remitted to the Federal Court on 27 May 2003, and the applicant was unsuccessful on 2 August 2006. The applicant again appealed to the Federal Court on 17 August 2006, and was unsuccessful on 2 February 2007. 

4. The applicant again became an unlawful noncitizen on 19 March 2004, until granted a bridging visa on 15 September 2009. The applicant attempted to lodge another protection visa on 30 January 2008, but was not allowed on 18 February 2008. The applicant lodged an application for Ministerial intervention on 21 January 2008, but was unsuccessful on 29 February 2008. The applicant lodged another application for Ministerial intervention on 18 June 2008, but was unsuccessful on 14 August 2008. 

5. The applicant applied for Ministerial intervention again on 4 September 2009, and this was not successful on 29 October 2009. The applicant again became an unlawful noncitizen of Australia, from 16 February 2009 until granted a bridging visa on 8 January 2015, on the basis of another request for Ministerial intervention, lodged on 11 December 2014. This was found to be unsuccessful on 5 March 2015. The applicant then again became an unlawful noncitizen of Australia from 18 March 2015 until being granted a bridging visa on 23 June 2016, in association with the application for the partner visa lodged on 21 June 2016. 

6. The Delegate, prior to the Delegate’s decision, sent the applicant a procedural fairness letter dated 15 June 2017, in which the Delegate expressly referred to the Department having obtained information that “indicates that the sponsor has been in a relationship with a person other than yourself, since the timeframe you indicate your relationship started.”  The letter identified that the evidence obtained to demonstrate this included “photos of your sponsor with a person other than yourself”, “Travel details of them travelling together on holidays on two occasions since you claimed to have begun your relationship, where they also list that they live together at the same address”, and documents in which they “also identify each other as the emergency contacts after you have claimed to have been married.” 

7. On 14 July 2017, the Delegate found that the applicant failed to meet the criteria for the granting of the visa. The applicant applied for review on 20 July 2017. By letter dated 20 December 2018, the applicant was invited to attend a hearing on 22 January 2019. The applicant appeared on that date to give evidence and present arguments, and was represented by his migration agent, and evidence was given also by the sponsor and another witness. 

8. The Tribunal, in its reasons, identified the background to the application for the visa, and made reference to the Delegate’s decision, noting that the Delegate was not satisfied the applicant met the criterion, in 3001 of Sch 3 to the Migration Regulations 1994 (Cth) (“the Regulations”), and that the Delegate found that the applicant was not the holder of a substantive visa at the time that he lodged the application for the partner visa. The Tribunal noted that the Delegate found there were not compelling reasons for waiving the Sch 3 criteria.

9. The Tribunal correctly identified the relevant statutory provision in determining whether or not the sponsor was the spouse of the applicant, and whether there are compelling reasons to waive the Sch 3 criteria.

10. The Tribunal identified that, at the beginning of the hearing, it raised with the applicant a s 376 certificate under the Act (“the Certificate”), and that the Tribunal considered the Certificate to be valid. The transcript supports the Tribunal raising with the applicant, with his migration representative there, the existence of the Certificate, the existence of which was apparent from the earlier procedural fairness letter sent by the Delegate. There was no request by the representative of the applicant to be given the Certificate.

11. The Tribunal clearly raised with the applicant the adverse information subject of the Certificate, and complied with the requirements of s 359AA of the Act in that regard. The applicant was given the further opportunity, until 5 February 2019, to respond.  

12. The Tribunal, in its reasons, identified the explanation given by the applicant in relation to the information the subject of the Certificate, referring to the applicant trusting the flatmate of the sponsor, and that he dropped them at the airport and collected them, and identifying the applicant’s response when shown the photographs, that he knew the people in the photographs, and that they were friends of the sponsor, and that she is a very friendly person, and the applicant is certain that he told her to go overseas with her friend, and that he trusted him to look after her, and also stated his marriage with the sponsor is strong, and the photos are just normal photos, and are just friends hugging.

13. The Tribunal found that the photographs show the sponsor in poses with her friend, with romantic captions that appear to indicate that the sponsor is in a relationship that was more than platonic with the person who was not the applicant. The Tribunal placed little weight on the applicant’s evidence and did not accept it as credible. 

14. The transcript of the hearing has been tendered into evidence. The transcript does identify the applicant also raising his visa status in further explanation as to why he did not travel with the applicant. 

15. That visa status is not one, given the migration history that has just been identified, that is in any way a satisfactory explanation, or an explanation at all, and was not a piece of material information of a kind that required express reference by the Tribunal in its reasons. The Tribunal fairly identified the applicant’s explanation, and had an active intellectual engagement with the claims and evidence by the applicant concerning the s 376 information.

16. The Tribunal found it unlikely that the sponsor had travelled to Thailand on a holiday other than with her fiancé two months prior to their wedding, and then within six months after their wedding again for two months on a European holiday with the same person, if she was in a genuine and committed relationship with the applicant. 

17. The Tribunal found it lacked credibility that the sponsor would list another person other than her husband as the emergency contact on her passenger card, both prior to and after the parties’ marriage, if they had been in a genuine de facto relationship. 

18. The Tribunal also found that the photographs the subject of the Certificate, showing the sponsor in poses with her friend with romantic captions, indicate that the sponsor was in a relationship that was more than platonic, with a person other than the applicant. The Tribunal placed little weight on the evidence given by that other person.

19. The Tribunal identified putting other information in s 359AA of the Act to the applicant in the course of the hearing in relation to the sponsor’s Facebook site. The Tribunal was not satisfied that the applicant and sponsor were actually living together, and found it appears the sponsor is living at another address in the vicinity of Neutral Bay. 

20. The Tribunal identified the requirements in relation to the meaning of spouse under s 5F of the Act, and the specific matters contained in reg 1.15A(3) of the Regulations. The Tribunal’s reasons are consistent with the consideration of each of the criteria in that regard. 

21. The Tribunal identified the issue in relation to whether the parties were currently married, and found that they were married to each other under a marriage that was valid under the Act.

22. With careful consideration of all the evidence, the Tribunal concluded that it was not satisfied that the applicant is the spouse of the sponsor within the meaning of s 5F of the Act. The Tribunal referred to having set out its consideration of the evidence, under the particular matters identified under reg 1.15A(3) of the Regulations. 

23. The Tribunal also found that the sponsor and applicant were not credible witnesses. 

24. The Tribunal referred to the financial aspects of the relationship, which it found are not indicative of the parties being in a genuine spousal relationship. 

25. The Tribunal referred to the nature of the household, and placed little weight on this aspect of the relationship on the evidence presented for hearing. 

26. The Tribunal then referred to the social aspects, and found that there is not convincing evidence that the parties present themselves as a married couple to family and the wider community, that they undertake regular social activities, or have taken holidays or short breaks together, or that they attended any significant events together, or that they belong to any organisations or groups. The Tribunal found that the applicant and the sponsor do not present themselves to family and friends as being in a committed spousal relationship, or that they are regarded as such by others. The Tribunal was not satisfied that the social aspects of the relationship indicated that the parties were in a genuine continuing relationship. 

27. The Tribunal turned to the issue of whether the parties were committed to each other as required under the regulation, and referred to the relationship between the applicant and the sponsor having commenced in January 2015, and them being married in May 2016. 

28. The Tribunal referred to the evidence provided, including referring to the sponsor being the beneficiary under the applicant’s superannuation scheme.

29. Whilst the Tribunal was satisfied that the sponsor and the applicant are legally married, the Tribunal found that there was insufficient evidence before the Tribunal that the parties see the relationship as a long-term one, that they draw emotional support and companionship from each other, or that they have a commitment to a shared life together. 

30. The Tribunal referred to the evidence of the applicant and sponsor being at times vague, inconsistent, and lacking in detail. 

31. The Tribunal found that the parties do not pool or share their financial resources. The Tribunal found that there was no evidence of joint ownership of real estate or other major assets, or joint liabilities, or that one person in the relationship owes any legal obligation in respect of the other. 

32. The Tribunal found, based on the evidence, there is limited evidence to show that the parties established a joint household with shared household responsibilities. The Tribunal found that the parties do not live together as spouses and share responsibility of housework. 

33. The Tribunal found that the weight of the evidence does not support a finding that the parties are in a genuine continuing relationship. 

34. The Tribunal was not satisfied that the requirements under s 5F of the Act were made out at the time the application was made, or at the time of the decision. The Tribunal noted that there was no information to identify that the applicant could establish alternative criteria for the grant of the visa. 

35. The Tribunal was not satisfied that, at the time the application was made or at the time of the decision, the parties were in a spousal relationship, and accordingly found that the applicant did not meet the criteria under cl 820.211(2)(a) of Sch 2 of the Regulations, and did not meet cl 820.211(2)(d) of Sch 2 of the Regulations. 

36. The Tribunal also addressed the issue of the applicant not holding a substantive visa at the time of application in relation to the Sch 3 criteria, and turned to the issue of whether there were compelling circumstances for waiving the Sch 3 criteria. The Tribunal found there were not, and the Tribunal affirmed the decision under review.

Before the Court

1. These proceedings were commenced on 16 August 2019. The proceedings were not commenced with any legal representative acting on behalf of the applicant; the applicant was acting for himself. 

2. On 12 September 2019, a Registrar made orders providing the applicant an opportunity to file an amended application, affidavit evidence and submissions. Prior to the filing of an application in a case, no steps were taken by the applicant in compliance of the orders made by the Registrar, by consent of the applicant, on the first court date at which the applicant attended. 

3. The applicant filed an application in a case on 22 July 2020, seeking an adjournment of the hearing fixed for 27 July 2020. A brief adjournment was granted by the Court, and the Court made orders providing the applicant a further opportunity to file an amended application, affidavit evidence and submissions. That opportunity was taken advantage of, and the matter is being heard today. 

4. For reasons identified in a separate decision, this Court dismissed the further application for an adjournment that was advanced on behalf of the applicant. 

5. Mr Bocabella, counsel on behalf of the applicant, confirmed that grounds 1 to 3 of the amended application were not pressed. That was a proper concession by Mr Bocabella. None of those grounds were capable of identifying any jurisdictional error. 

6. The remaining grounds in the amended application were as follows:

   4. The AAT did not properly apply and interpret s376 of the Migration Act which led to the AA T did not conducting a proper review under ss347, 348 and Part V of the Migration Act 1958 Cwth.

   5. The AAT did not properly apply and interpret ss 357 A and 359AA of the Migration Act which led to the AAT did not conducting a proper review under ss347, 348 and Part V of the Migration Act 1958 Cwth.

   6. The AA T did not otherwise conduct a proper review under ss34 7. 348 and Part V of the Migration Act 1958 Cwth.

   7. The AA T did not properly interpret and apply Reg 1.15A of the Migration Regulations 1994

   8. The decision of the AA T was unreasonable

   9. The AA T member was not properly appointed hence there was no review under ss347. 348 and Part V of the Migration Act 1958 Cwth

Grounds 4 and 5

1. In relation to ground 4, Mr Bocabella submitted that there had been a jurisdictional error, because, first, the applicant was not handed the Certificate. There is no statutory requirement to hand the Certificate to the applicant.

2. Further, it is apparent that the Tribunal raised the existence of the Certificate, and whether it was valid, with the applicant and the applicant’s migration representative, and that the Tribunal identified the substance of the information that was material in relation to the issues before the Tribunal.

3. On the face of the transcript, the Tribunal complied with the requirements under s 359AA of the Act. The applicant suffered no practical injustice by reason of the existence of the Certificate, or the documents the subject of the Certificate and by reason of not being handed the certificate.

4. Mr Bocabella submitted that the decision was invalid, in circumstances where it did not meet the requirements of s 376(1)(a) of the Act.

5. The grounds identified in the certificate refers to particular folios being contrary to the public interest, and the content identified does support that contention as it rises no higher than confidentiality. Confidentiality was a limb under s 376 of the Act, and there is a reference to in confidence folios. The Court accepts the force of the first limb of Mr Bocabella’s submission that the reference to a public interest protection is one that, on its face, would not satisfy the requirements of s 376(1)(a) of the Act. 

6. That does not necessarily mean that the certificate was invalid, but even if it was invalid, that does not give rise to any jurisdictional error. That is because the applicant suffered no practical injustice in the conduct of the review before the Tribunal by reason of the existence of the certificate, if invalid. That is because the material the subject of the certificate was raised with the applicant, in accordance with the requirements of s 359AA of the Act, and the applicant had a real and meaningful hearing before the Tribunal. 

7. No jurisdictional error as alleged in ground 4 is made out. 

8. Mr Bocabella advanced a further argument suggesting that there was error because the material was not provided to the applicant. This was advanced as, in essence, a noncompliance with the procedural fairness requirements entrenched through ss 347, 348, and 357A(3) of the Act, which expressly refer to the Tribunal being required to act in a way that is fair and just. Mr Bocabella developed a submission that the applicant was robbed of the opportunity to engage with the photos, because they were not provided to him.

9. Mr Bocabella, when the Court raised with him the Delegate’s letter of 15 June 2017, that expressly referred to the photos, did not put any logical or rational explanation as to why it was not patent that the applicant had knowledge of the existence of the photos. Further the photos, according to the Tribunal’s decision in the transcript, were showed to the applicant in the course of the hearing. 

10. The contention that there was some conduct of the hearing in a way that was not fair and just is without substance and the applicant had a fair and just opportunity to participate in the hearing. 

1. The transcript supports the applicant having a real and meaningful hearing. As indicated above, the applicant was shown the photographs in the course of the hearing. Those were the photographs that had already been earlier identified in the procedural fairness letter sent by the Delegate on 15 June 2017. There is no substance in Mr Bocabella’s submission that there was any breach of s 357A of the Act, nor is there any proper basis to find that the review was not a review conducted in accordance with the requirements of ss 347, 348 and Pt 5 of the Act. Nor does Mr Bocabella’s reference to s 359AA of the Act advance the existence of any error in circumstances where, on the face of the transcript, the Tribunal complied with the requirements of s 359AA of the Act in respect of the information identified by the Tribunal in that regard. 

2. No jurisdictional error is made by grounds 4 and 5.

Grounds 6 to 8

1. In relation to grounds 6, 7, and 8, Mr Bocabella sought to treat these grounds collectively, and made reference to the applicant referring to not being able to go overseas with his partner because of his visa status, and suggested that that was a core and central issue. The failure to expressly refer to the same reflect did not reflect a lack of an active intellectual engagement of the applicant’s claims and evidence. For the reasons already given, the visa history of the applicant was not a material to which express reference was required and that status was not a core or central issue. Further the rejection of the applicant’s explanation by reference to his visa status was subsumed within the adverse findings made by the Tribunal. 

2. The Tribunal is not required to refer to every piece of evidence. The applicant’s migration history is not one which provides a satisfactory explanation. In circumstances where the applicant merely referred to his visa status in the context of a broader explanation, which was correctly identified by the Tribunal and rejected, there was no requirement for the Tribunal to make express reference to the applicant’s express visa status. 

3. Further, the applicant’s visa status was not something that advanced the merits of the applicant’s application or the merits of the explanation where the critical issue was in fact the association with the other person both prior to and after the wedding, and the conduct that was identified in relation to the provision of emergency contact details, and the romantic photographs. The submission as to the significance of the visa status invites impermissible merits review.

4. The Tribunal’s findings were not based on trivial or insignificant matters, and reflect an active intellectual engagement with the applicant’s claims and evidence. 

5. There is no basis to find that the Tribunal did not conduct a review in accordance with the requirements of ss 347, 348 and Pt 5 of the Act. Equally, it is apparent that the Tribunal complied with reg 1.15A of the Regulations. No submission was developed to identify the way in which it is said there was a failure under the Regulation. The Tribunal’s reasons are consistent with the Tribunal correctly taking into account the mandatory criteria and making adverse findings that were open, for the reasons given by the Tribunal as summarised above. 

6. Mr Bocabella’s submissions in relation to grounds 6 to 8 are in substance to invite this Court to engage in impermissible merits review. The adverse findings by the Tribunal cannot be said to lack an evident and intelligible justification. That evident and intelligible justification has already earlier been identified by the Court in the reasons as summarised above, and relevantly includes the material supporting a relationship of the sponsor with another person other than the applicant, both before and after the marriage to the applicant, the provision of information in relation to emergency contacts inconsistent with the alleged relationship, as well as the romantic photographs. 

7. The Tribunal’s adverse findings were logical and rational. There is no basis to find that the Tribunal’s decision was legally unreasonable, either in outcome or in relation to the conduct of the review, or in relation to the adverse findings. For the reasons summarised above there was an evident and intelligible justification for the outcome, the conduct of the review and the adverse findings.

8. No jurisdictional error is made out by grounds 6 to 8. 

Ground 9

1. Ground 9 appears to have been a throwaway ground. It should not have been advanced, and had it been the only ground, would have engaged issues under part 8B of the Act. Assertions from the bar table as to who is or is not a lawyer is not evidence. The submission advanced was that the Tribunal member was not a lawyer, and therefore the review was invalid. No evidence was adduced to support that assertion.

2. No attention was given, nor was the Court taken to the Administrative Appeals Tribunal Act 1975 (Cth), or s 7 of that legislation. The submission was entirely without merit, and had no substance, and should not have been advanced.

3. No jurisdictional error is made out by ground 9.  

4. As the amended application fails to make out any jurisdictional error, the amended application is dismissed. 

I certify that the preceding sixty-six (66) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 31 July 2020 and the parties were sent a sealed copy of the Court’s orders.

Associate: 

Date: 21 August 2020