Tarsoo v Minister for Immigration

[2017] FCCA 149

FEDERAL CIRCUIT COURT OF AUSTRALIA

TARSOO v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 149

Catchwords:

MIGRATION – Administrative Appeals Tribunal (Migration & Refugee Division) – whether the Tribunal failed to comply with the obligations under s.359A – adverse credibility findings were open to the Tribunal – no denial of procedural fairness – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5CB, 5F, 54, 357A, 359A, 476.

Migration Regulations 1994, reg.1.09A, 1.15A, cl.801.221 of Sch.2.

Applicant: MOHAMMAD YASFEER TARSOO

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1925 of 2016

Judgment of: Judge Street

Hearing date: 31 January 2017

Date of Last Submission: 31 January 2017

Delivered at: Sydney

Delivered on: 31 January 2017

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: Ms S He
Mills Oakley

ORDERS

1. The application is dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the amount of $5,500.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1925 of 2016

MOHAMMAD YASFEER TARSOO

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1968 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 27 June 2016 affirming a decision of the delegate not to grant the applicant a Partner (Residence) (Class BS) visa. On 16 April 2015 a delegate found that the criteria for the grant of a Partner (Residence) (Class BS) (Subclass 801) visa was not met by the applicant. 

2. The applicant is a citizen of Mauritius and on 10 September 2012 the applicant completed an application for migration to Australia by a partner. That application was supported by a Sponsorship for a partner to migrate to Australia form completed by the applicant’s alleged sponsor. The form identified that the applicant and the sponsor first met on 15 December 2009 and that they allegedly commenced a relationship three months after they met and made a decision to a long term commitment and intended to marry each other on 3 November 2011 and were married on 5 February 2012.

The Delegate

1. The delegate identified the requirements of s.5F of the Act as well as the definition of “de facto partner” in s.5CB of the Act and the requirements of reg.1.15A of the Migration Regulations 1994 (“the Regulations”) and the same matters prescribed in reg.1.09A of the Regulations.

2. The delegate referred to the financial aspects and the limited evidence that was provided in relation to joint bank accounts. The delegate referred to the nature of the household and the different evidence that had been provided in relation to how long the parties had lived together at the relevant address, as well as the inconsistencies in relation to the child of the sponsor’s living arrangements. The delegate was not satisfied that the applicant and the sponsor are living together in a genuine and continuing relationship. 

3. The delegate referred to the limited social aspects of the relationship. The delegate found that there was very little in the statements provided regarding the nature and the commitment of the applicant and the sponsor to the relationship. The delegate was not satisfied that the applicant and the sponsor were in a genuine and continuing relationship as required under s.5F(2)(c) and s.5CB(2)(b) of the Act. The delegate was not satisfied that the applicant was the spouse or de facto partner of the sponsor as defined under the Act.

4. The delegate found that the applicant did not meet the requirements of subclause 801.221(2) of the Regulations and did not meet the legislative requirements for the grant of a subclass 801 visa as specified under cl.801.221 of the Regulations. The delegate found that the criteria for the grant of a Partner (Residence) (Class BS) (Subclass 801) visa were not met by the applicant and refused the application.

The Tribunal

1. On 4 May 2015, the applicant applied to the Tribunal for a review of the delegate’s decision. By letter dated 12 April 2016, the Tribunal invited the applicant to provide further information in relation to the claim that the applicant and the sponsor are in a spouse or de facto relationship.  That letter included an attachment explaining evidence in partner cases which identified the considerations that had to be addressed by the Tribunal. 

2. On 21 April 2016, the applicant was invited to attend a hearing on 16 May 2016. On 5 May 2016, the applicant’s migration agent provided submissions on behalf of the applicant together with information. The applicant appeared at the hearing date on 16 May 2016, represented by his migration agent and gave evidence and presented arguments.

3. By letter dated 19 May 2016, the Tribunal invited the applicant to comment on information that would be the reason or part of the reason for affirming the decision that is under review. That letter on its face complied with the criteria under s.359A of the Act and there has been no submission developed as to any matter not addressed under s.359A of the Act in that regard. By letter dated 1 June 2016 the applicant’s migration agent responded to the letter.

4. The Tribunal in its reasons identified that the delegate refused to grant the visa on the basis the applicant did not satisfy cl.801.221(2) of the Regulations as the delegate was not satisfied the applicant was the spouse of the sponsoring partner. The Tribunal identified that the issue in the present case was whether the applicant met the requirements of cl.801.221(2)(c) of the Regulations. The Tribunal referred to the requirements of the Act in relation to the definition of “spouse” in s.5F of the Act, as well as the requirements set out in reg.1.15A(3) of the Regulations.

5. The Tribunal found that having considered all the evidence and circumstances of the relationship, the Tribunal was not satisfied that the parties are in a genuine and continuing spousal relationship with each other. The Tribunal did not find the applicant or the sponsor to be reliable and credible witnesses. The Tribunal identified in that regard inconsistencies in the evidence of the sponsor and the applicant and the limited knowledge of each other. 

Consideration of financial aspects

1. The Tribunal turned to the financial aspects of the relationship. The Tribunal referred to a current joint account showing transactions from 1 February 2015, suggesting the account was only opened after the department had requested further evidence of the relationship. The Tribunal was concerned that the current joint account was opened for the purpose of the application, not because the parties were genuinely pooling their financial resources or sharing day-to-day household expenses.

2. The Tribunal found the applicant’s limited knowledge or lack of knowledge of the sponsor’s financial circumstances and the applicant’s hesitation to ask the sponsor about her finances, in combination with other concerns led the Tribunal not to be satisfied that the financial aspects of the parties’ relationship demonstrate they are in a genuine and continuing spousal relationship. 

Consideration of the nature of the household

1. The Tribunal referred to the nature of the household and that the visa application form indicated the parties started living together on 5 February 2012. The Tribunal did not find it credible that the sponsor had resided at the relevant address from March 2015 to May 2015 in circumstances where the sponsor could not recall the name of the female sharing a two bedroom flat.  The Tribunal formed the view that the parties had not provided truthful evidence about their living arrangements. The Tribunal found that the evidence of two other persons was not supportive of the parties’ claimed cohabitation at the relevant address. 

2. In relation to the inconsistencies, the Tribunal did not find any of the parties’ explanations to be convincing. The Tribunal was of the view that if the parties had been living together at the relevant address as claimed they would have been able to provide more consistent evidence about the child’s sleeping arrangements. The Tribunal referred to raising the issue of the applicant’s limited knowledge about the schooling of the child and found the applicant’s submission of not knowing much detail cast considerable doubt over the parties’ claim to be living together. 

3. The Tribunal was not satisfied that the parties had cohabitated at the relevant address as claimed, or that they are currently living at the relevant address. The Tribunal was not satisfied that the parties have any joint responsibility for care and support of the child. The Tribunal was not satisfied that the nature of the parties’ household demonstrates that they are in a genuine and continuing spousal relationship. 

Consideration of the social aspects of the relationship

1. The Tribunal turned to the social aspects of the relationship. The Tribunal also referred to taking into account photographs that were provided. The Tribunal expressed its concern that the sponsor’s parents may not know about the marriage and that the relationship may have limited social recognition. The applicant responded that the sponsor’s parents were not happy with him in the beginning. The Tribunal was not satisfied with that explanation because even if they had concerns about him in the beginning it does not explain why to date, which is some four years after the marriage that no supporting statements or other evidence has been provided from the sponsor’s parents or siblings in support of the relationship. The Tribunal was not satisfied that the parties have adequately addressed the inconsistencies in their evidence. 

2. The Tribunal formed the view that the parties have not been truthful about the applicant having met the sponsor’s parents which reflects poorly on their credibility generally. The Tribunal considered that the parties have not provided truthful evidence about the applicant having met the sponsor’s parents and the Tribunal was not satisfied, given the limited supporting evidence and the inconsistencies identified by the Tribunal, that the applicant has ever met the sponsor’s parents, or that the sponsor’s parents and siblings are aware of the parties’ relationship. 

3. The Tribunal expressly referred to the post hearing response provided to the Tribunal in response to the s.359A letter sent by the Tribunal. The Tribunal was not satisfied on the evidence, that the parties represent themselves to others generally as being married to each other. The Tribunal was of the view that if the parties had been in a genuine relationship they would have been able to provide more evidence to demonstrate the social aspects of the relationship. The Tribunal was not satisfied that the social aspects of the parties’ relationship demonstrate that they are in a genuine and continuing relationship with each other.

Consideration of the nature of the person’s commitment to each other

1. The Tribunal turned to the nature of the person’s commitment to each other. The Tribunal referred to the applicant’s evidence regarding events and joint experiences being at times evasive, vague, and incoherent. The Tribunal found that the parties’ oral evidence casts considerable doubt in the Tribunal’s mind about the nature of the parties’ relationship. The Tribunal formed the view that the parties have not provided truthful evidence about their first meeting. 

2. The Tribunal found the explanations provided by the parties to be inconsistent and have formed the view that the parties have provided untruthful evidence about the development of their relationship. The Tribunal was not satisfied the parties have provided a truthful account of the inception and development of their relationship or their claimed break-up and reunion which in turn, casts considerable doubt in the Tribunal’s mind about the nature of the parties’ relationship and their reasons for marrying. 

3. The Tribunal was not satisfied on the totality of the evidence that the parties provide each other with companionship, or that they draw emotional support from each other. The Tribunal was not satisfied that the parties see the relationship as long term. The Tribunal expressly referred to having had regard to all the circumstances of the relationship and having carefully considered the oral and documentary evidence before it, the Tribunal was not satisfied that the parties have a mutual commitment to a shared life as husband and wife to the exclusion of all others, that the relationship is genuine and continuing, that they live together, or do not live separately and apart on a permanent basis.

Conclusion

1. The Tribunal was not satisfied at the time of the decision the parties were in a spousal relationship. The Tribunal found that the applicant does not meet the criteria under cl.801.221(2)(c) of the Regulations and affirmed the decision of the delegate.

Before this Court

1. On 26 September 2016, the Court made orders fixing the matter for hearing. The applicant was provided with an opportunity to file an amended application, affidavit evidence and submissions. No such documents were filed.  At the commencement of the hearing, the Court explained to the applicant that this was a final hearing to determine whether the Tribunal’s decision was affected by relevant legal error. The Court explained to the applicant the relevant legal error had to be either an excess of statutory power, or a denial of procedural fairness by the Tribunal. The Court explained that in summary, this meant the Court was considering whether the Tribunal’s decision was unlawful or unfair.

2. The Court explained to the applicant that it would have identified the evidence, then hear submissions from the applicant, then hear submissions from the solicitor for the first respondent and then hear submissions from the applicant in reply. The applicant confirmed that he understood the nature of the hearing as explained by the Court. 

3. From the bar table, the applicant asserted baldly the decision was unfair in circumstances where he provided all of the evidence. Nothing said by the applicant from the bar table identified any jurisdictional error. The bare assertion by the applicant that he had provided all the evidence was in substance an invitation to this Court to engage in an impermissible merits review.  This Court does not have power to review the merits of the matter. Nothing said by the applicant identified any relevant legal error. 

4. The solicitor for the first respondent summarised the reasons why the respective grounds in the application failed to make out any jurisdictional error. The applicant did not put any submissions when invited to do so in reply.

5. The grounds of the application are as follows:-

   1. The Second Respondent made a jurisdictional error in that it denied the applicant procedural fairness under s359A of the Migration Act 1958 and/or failed to take into account relevant considerations in reaching its decision.

   Particulars:

   (a) Failure to accurately consider the Applicant's written response to the invitation to comment on adverse information.

   2. The Second Respondent failed to comply with Section 54, and/or Section 359, and/or Section 359A and/or Section 357A of the Migration Act 1958 in that the applicant was denied procedural fairness and/or failed to act in a way that was fair and just, and/or failed to take into account relevant considerations and information.

   Particulars:

   (b) Failure to accurately take into account all the evidence at hearing and in the Applicant's subsequent response to the invitation to comment on adverse information.

   (c) Failure to accurately take into account all information and the Second Respondent erring in forming the conclusions:

   (i) that the patties are not in a genuine and continuing relationship with one another.

   (ii) that they do not have a mutual commitment to a shared life to the exclusion of others

   (iii) that they do not live together, or that they live separately or apart on a permanent basis.

   (iv) The parties have limited knowledge of each other's lives.

   (d) The Second Respondent erring in forming the conclusion that the Applicant was not a credible witness. 

Consideration

1. In relation to Ground 1, no information was identified enlivening the obligation under s.359A of the Act in respect of any alleged contravention thereof. On the material before the Court, the Tribunal complied with its obligations under s.359A by sending the applicant through his legal representative the letter dated 19 May 2016 which was responded to on 1 June 2016. No argument was developed as to why there was any noncompliance with s.359A of the Act in respect of that matter. The Court is not satisfied that there is any contravention of s.359A of the Act in the conduct of the review by the Tribunal.

2. In relation to the suggested failure to take into account relevant considerations, it is apparent from the Tribunal’s reasons that the Tribunal took into account the response of the applicant provided on 1 June 2016. No other relevant consideration has been identified that the Tribunal failed to take into account.  The Tribunal’s reasons reflect an orthodox approach to the review and the Court is not satisfied that there was any relevant consideration that was not taken into account by the Tribunal. No jurisdictional error is made out by Ground 1.

3. In relation to Ground 2, s.54 of the Act relates to the delegate’s decision and is not a basis upon which there could be made out any relevant legal error. In relation to s.359A of the Act, no information was identified in respect of which there was any basis to find a contravention of that provision. No information was identified that was easily ascertainable in respect of a critical issue that could give rise to any argument that the Tribunal breached the relevant provision. For the reasons already identified, the Tribunal on its face, complied with s.359A of the Act and no argument was developed identifying any information enlivening an obligation in respect of which a breach of s.359A of the Act was alleged.

4. In relation to s.357A of the Act, on the face of the material before the Court, it is apparent that the Tribunal complied with its statutory obligations. The Tribunal invited the applicant to attend a hearing and the applicant had a genuine and meaningful hearing in relation to the dispositive issues.

5. In the present case, it was up in lights for the applicant that the relevant issue was the genuineness of the relationship. This was not only as a result of the decision of the delegate, but also as a result of the letter sent to the applicant on 12 April 2016 inviting the provision of further information, as well as in the letter of invitation to attend the hearing which made clear that the Tribunal had not been able to make a favourable decision on the material that had been provided. On the face of the material before the Court, the applicant was provided with procedural fairness by the Tribunal in the conduct of the review in accordance with the requirements of the Act.

6. The proposition that the Tribunal failed to take into account accurately all the evidence was not developed in respect of any matter the subject of an allegation of inaccuracy by the Tribunal other than a disagreement in substance with the adverse outcome. The particulars in Ground 2 are in substance, a challenge to the adverse findings by the Tribunal. The adverse credibility findings by the Tribunal were open and the Tribunal identified a logical and reasonable basis for those adverse credibility findings. The adverse credibility findings cannot be said to lack an evident and intelligible justification. 

1. The credibility of the applicant was a proper matter for the Tribunal to assess and for the reasons given the adverse credibility findings were open. No denial of procedural fairness as alleged in Ground 2 is made out. No failure to take into account a relevant consideration of information as alleged in Ground 2 is made out. No jurisdictional error is made out by Ground 2. 

Conclusion

1. As the application fails to make out any jurisdictional error and as nothing said by the applicant from the bar table identified any jurisdictional error, the application is dismissed.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 1 February 2017