Tay v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 135
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
Tay v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 135
File number(s): SYG 3745 of 2016 Judgment of: JUDGE MANOUSARIDIS Date of judgment: 4 March 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 Prospective Partner visa – whether Tribunal failed to consider or failed to undertake active intellectual process directed to particular items of evidence – whether such evidence critical or material – relief granted. Legislation: Migration Act 1958 (Cth) ss 5F, 476, 477(1), 477(2)
Migration Regulations 1994 (Cth) reg 1.15A, Sch 2, cl 309.211(2)
Cases cited: Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107
EOC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 297
Li v Minister for Immigration & Citizenship [2008] FCA 902
Minister for Immigration and Border Protection v Angkawijaya [2016] FCAFC 5
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
Singh v Minister for Home Affairs [2019] FCAFC 3
Division: General Number of paragraphs: 43 Date of hearing: 4 June 2021 Place: Sydney Counsel for the Applicant: Mr J King Solicitor for the Applicant: Ren Zhou Lawyers Counsel for the First Respondent: Ms N Laing Solicitor for the First Respondent: Minter Ellison ORDERS
SYG 3745 of 2016 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: JOSEPH TAY
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTCULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE MANOUSARIDIS
DATE OF ORDER:
4 MARCH 2022
THE COURT ORDERS THAT:
1.Pursuant to s 477(2) of the Migration Act 1958 (Cth) (Act) the 35 day period prescribed by s 477(1) of the Act for making an application for remedies under s 476 of the Act in relation to the decision of the second respondent (Tribunal) made on 18 November 2016 affirming the decision (delegate’s decision) made by a delegate of the first respondent on 24 April 2015 not to grant the applicant a Partner (Provisional) (Class UF) visa is extended up to 28 December 2016.
2.The decision of the Tribunal made on 18 November 2016 affirming the delegate’s decision is quashed.
3.The Tribunal review the delegate’s decision according to law.
4.The first respondent pay the applicant’s costs as agreed or as assessed according to such method of assessment as the Court may order.
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 applicant applies for an order under s 477(2) of the Migration Act 1958 (Cth) (Act) to extend the 35 day period prescribed by s 477(1) of the Act for making an application to this Court for a remedy under s 476 of the Act. The application relates to a decision made by the second respondent (Tribunal) on 18 November 2016 affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant’s wife (visa applicant) a Partner (Provisional) (Class UF) visa (Prospective Partner visa). The applicant requires an order under s 477(2) of the Act because he commenced this proceeding five days after the 35 day period prescribed by s 477(1) of the Act expired.
At the commencement of the hearing before me counsel for the Minister said the Minister would not oppose my making an order under s 477(2) of the Act. I informed counsel that I would not make an order under s 477(2) at the hearing, but would require no submissions on whether an order under s 477(2) should be made, noting that I will consider that question after I hear submissions on the substantive grounds on which the applicant seeks remedies under s 476 of the Act. I then invited counsel to make submissions on the assumption that an order under s 477(2) of the Act had been made.
BACKGROUND
On 26 August 2014 the visa applicant, a national of Vietnam, applied offshore for a Prospective Partner visa. To have been entitled to the grant of a Prospective Partner visa the visa applicant had to satisfy the requirements of cl 309.211(2) of Schedule 2 (Schedule 2) to the Migration Regulations 1994 (Cth) (Regulations), which relevantly required that the visa applicant is the “spouse” of an Australian citizen.[1] The visa applicant claimed she is the spouse of the applicant, who is a citizen of Australia.
[1] Although I use the present tense, the provisions of the Act and Regulations are those that applied as at 26 August 2014
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 husband and wife 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) provides that, when considering an application for a Prospective Partner visa, among other subclasses of visas, “the Minister must consider all of the circumstances of the relationship”, including the matters set out in reg 1.15A(3) of the Regulations. Those matters include the following:
(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; 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; and 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; and 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; and 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 VISA APPLICANT’S CLAIM FOR A PROSPECTIVE PARTNER VISA
In her application for a Prospective Partner visa the visa applicant said she met the applicant in December 2013 in Singapore. It was love at first sight, and she and the applicant were in constant contact by telephone and messages for the following 5 months. In April 2014 the visa applicant and the applicant decided they wanted to marry, and they were married in May 2014 in Singapore.[2]
[2] CB35
The visa applicant’s application also included a statement by the applicant.[3] The applicant said that he and the visa applicant met in Singapore in December 2013. They fell in love at first sight. The applicant and the visa applicant made phone calls and messaged each other by mobile phone. In April 2014 they decided to get married; and they did so in Singapore in May 2014.
[3] CB36
Before the Tribunal the applicant said:
(a)The applicant and the visa applicant were interested in getting married, and they joined an introduction agency in Singapore. The applicant said he was motivated to find a partner because he does not have family. The applicant agreed with the agency that he would pay the agency $7,000 if he married a person whom the agency introduced to him. The agency introduced five women to the applicant, one of which was the visa applicant.[4]
(b)The applicant and the visa applicant spent time in the agency two or three days after their first meeting before the visa applicant returned to Vietnam.[5] The visa applicant returned to Singapore in April 2014 to get married to the applicant, but the applicant did not arrive until 11 May 2014.[6]
(c)The applicant initially said he had delayed his trip because he could not get time off work, but he later told the Tribunal that he delayed his trip because he did not want to pay the fee to the agency before the wedding in case the visa applicant changed her mind. The applicant and the agency negotiated for some weeks after which the applicant agreed he would pay half the fee before the wedding and the rest after the wedding.[7]
(d)The applicant and the visa applicant spent time together at the agency from 11 May 2014 until they married on 16 May 2014 at a registry office in Singapore. Only officials attended the wedding. The applicant and visa applicant started a sexual relationship that night, and the applicant and visa applicant stayed together at the applicant’s sister’s home until 23 May 2014 when the applicant returned to Australia.[8]
(e)The applicant and visa applicant had a mutual attraction, and they have maintained contact while apart through email and text messages in English; and they spent time together on three occasions after their marriage. This consisted of 8 weeks in Singapore from February to April in 2015, 3 weeks in Vietnam in October 2015, and 2 weeks in Singapore in January 2016.[9]
[4] CB307, [11]
[5] CB307-308, [18]
[6] CB307-308, [20]
[7] CB308, [20]
[8] CB308, [21]-[23]
[9] CB308, [25]-[26]
Before the delegate the visa applicant said she went to Singapore to visit relatives and see the sights, and that a relative, Ms N, who knew the applicant, introduced the visa applicant and the applicant in a coffee shop.[10] Before the Tribunal the visa applicant gave the following evidence:
(a)The visa applicant and Ms N first met the applicant at a shopping centre in Singapore.[11] In an email she sent to the Tribunal the visa applicant said she was “embarrass (sic) telling you that I first met my husband at the marriage agency”.[12]
(b)Ms N suggested the visa applicant go to the agency to find a partner. The visa applicant did not know anything about the agency except it would help her get married. The visa applicant did not have to pay anything to the agency, because the agency met her expenses and provided accommodation.[13]
(c)The applicant was the first person the visa applicant met at the agency, and she chose not to meet anyone else after that.[14]
(d)The visa applicant and the applicant spent some time together at the agency following their first meeting before the visa applicant returned to Vietnam.[15]
(e)The visa applicant returned to Singapore on 8 April 2014 to marry the applicant, but the applicant did not arrive until May 2014. The visa applicant and the applicant spent time together at the agency from 11 May 2014 until they married on 16 May 2014. A person from the agency and another friend attended the wedding.[16]
(f)After the wedding the visa applicant and the applicant went back to Ms N’s home, and the visa applicant and applicant had a celebratory dinner at the applicant’s sister’s home.[17]
[10] CB307, [13]
[11] CB307, [14]
[12] CB307, [15]
[13] CB307, [16]
[14] CB307, [17]
[15] CB307, [18]
[16] CB308, [20]-[22]
[17] CB308, [23]
The applicant submitted to the Tribunal additional material. This included the following:
(a)A letter dated 1 July 2015 in which the applicant stated he wished to apply for a “priority queue” because he is living alone in Sydney and he really needs a companion. The applicant also said that he is nearly 63 years of age “without child and I and my wife love to have our first child as soon as possible”.[18]
(b)A letter from a Dr Kok dated 31 July 2016 advising the applicant suffers from impotence due to his age and diabetes; and that the applicant had tried on four separate periods to have a child with the visa applicant. Dr Kok further stated that he had referred the applicant to a sexual health specialist.[19]
(c)On 6 October 2016 the applicant sent an email to the Tribunal in which he set out advice his doctor had given about a method that will enhance his capacity to be able to have a child.[20]
(d)On 25 October 2016 the applicant sent an email to the Tribunal stating that he and his wife “wish very much to have a baby as soon as we can”, noting that his doctor had advised the applicant “to have baby soonest possible due to [the applicant’s] age”.[21]
[18] CB122
[19] CB283
[20] CB294
[21] CB296
TRIBUNAL’S REASONS
The Tribunal was satisfied the applicant and visa applicant are married, and their marriage is valid for the purposes of the Act.[22] The Tribunal then considered each of the matters specified in reg 1.15A(3) of the Regulations.
[22] CB308, [21]
Nature of the commitment
The Tribunal accepted the applicant is committed to a long-term relationship with the visa applicant, despite his not knowing her well; and that the applicant believes the visa applicant is similarly committed, although the Tribunal found that the applicant’s evidence that his and the visa applicant’s mutual commitment “arises from a shared vision of a future life together”, and did not arise, “in the usual way, from mutual respect and affection”.[23] The Tribunal found, however, that it did not share the applicant’s confidence that the visa applicant is similarly committed to the applicant’s vision of their future or to their relationship. The Tribunal was not satisfied the visa applicant sees her relationship with the applicant as long term, or that she has been mutually committed to sharing her life with the applicant as his spouse at any relevant time.[24] The Tribunal relied on the following:
(a)The visa applicant “did not present” as having a similar personality to the applicant, and nothing in her circumstances explains why she would commit to sharing her life with a person she does not know well.[25]
(b)The visa applicant is not a witness of credit.[26] The Tribunal principally relied on the visa applicant having accepted she had given false information to the delegate about the circumstances in which she met the applicant, and, in particular, omitting to mention that she met the applicant through an agency. The Tribunal did not accept the visa applicant’s explanation for giving false information, namely, that she was embarrassed to say she met the applicant through an agency.[27] Given the Tribunal found the visa applicant was not a witness of credit, the Tribunal found that the visa applicant’s oral and written statements of respect and affection for the applicant were not convincing.[28]
(c)The visa applicant said the applicant had a close relationship with his mother whereas the applicant said that his relationship with his mother had broken down when at the age of 17 his mother said she did not want the applicant to be part of the family. The applicant said he did not speak to the visa applicant about these matters.[29]
(d)The applicant was unaware of the visa applicant’s personal relationships.[30]
[23] CB310, [38]
[24] CB310, [39]
[25] CB310, [39]
[26] CB310, [39]
[27] CB307, [15]
[28] CB310, [39]
[29] CB310, [36]
[30] CB310, [37]
Financial aspects of the relationship
The Tribunal found that the visa applicant and the applicant do not pool their financial resources, or share day-to-day expenses, or owe any legal obligations to the other. The Tribunal concluded, however, that this does not weigh heavily because the visa applicant and the applicant live in different countries.[31]
[31] CB310, [40]
The Tribunal noted the applicant’s evidence that he met the expenses for both of them when they were in the same country after their marriage; the applicant gives the visa applicant about $250 a month to meet her expenses; and he paid for a dressmaking course. The applicant has also made a will leaving the visa applicant a significant property portfolio, he has purchased properties in joint names; he has spent a lot of money to make sure the applicant and her family can live well, and he has set up a fund for education for the visa applicant’s siblings.
The Tribunal found that the applicant’s evidence is consistent with his commitment to a relationship with the visa applicant; but it also found that this did not demonstrate the visa applicant is committed to the relationship, but might instead “be a reason for her to pretend to be committed to the relationship”.[32]
[32] CB310, [43]
Nature of the household
The Tribunal noted the applicant owns a number of properties in Sydney, and accepted his evidence that he and the visa applicant would move to a property he owns in Sydney. The Tribunal was satisfied, therefore, the applicant has realistic plans for a future shared household.[33]
[33] CB311, [45]
Social aspects of the relationship
The Tribunal was satisfied the visa applicant and the applicant jointly undertook social activities in Singapore before the visa applicant applied for the Prospective Partner visa; but it found that these activities “were limited and it does not demonstrate significant commitment by” the visa applicant.[34]
[34] CB311, [50]
Conclusion
The Tribunal concluded as follows:[35]
The Tribunal found [the applicant] to be a witness of credit. [The applicant’s] generosity to [the visa applicant] is consistent with his expectations of a future relationship and demonstrates a significant level of trust. However, [the visa applicant] has demonstrated [a] capacity for dishonesty in her dealings with the Department and the Tribunal and this casts doubt on her honesty in her dealings with [the applicant].
[The visa applicant] demonstrated at hearing that she does not know [the applicant] and she knew less about him when she applied for the visa. It does not accept that [the visa applicant] was committed to the relationship at that time because of affection for [the applicant]. In the Tribunal's view, it is more likely that [the visa applicant] married [the applicant] to obtain a positive migration outcome. The Tribunal has no evidence suggesting [the visa applicant’s] motives have changed and [the applicant’s] generosity is a reason for . . . her to continue the relationship with him if she is not personally committed to it.
In the circumstances, the Tribunal is not satisfied [the visa applicant] is committed to the relationship at any relevant time. It follows that it is not satisfied the relationship is genuine and continuing or that there is a mutual commitment to a shared life together as husband and wife. In that case, they were not in spouse relationship when [the visa applicant] applied for the visa and are not in a spouse relationship at the time of this decision. [The visa applicant] does not meet the criteria in clauses 309.211(2) and 309.221 and the Tribunal will affirm the decision to refuse to grant the visa.
[35] CB311-312, [51]-[53]
SHOULD ORDER EXTENDING TIME BE MADE?
The principles governing the exercise of the power under s 477(2) of the Act are well-established, and I do not need to repeat them here.[36]
[36] I have set out the principles elsewhere – see, for example, EOC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 297, at [12]-[16]
The applicant has made an affidavit, filed on 28 May 2021, in which he explains the reason for his delay in filing the application in this Court. The applicant says he received notice of the Tribunal’s decision on about 25 November 2016 from his previous solicitor; on about 22 December 2016 the applicant called the “registry” and he was advised to file the documents on the first business day after Christmas; and on or before 22 December 2016 he called the “AAT” because he wanted to affirm “when was the last day of 35 to file my application”, and he was advised “by the phone receptionist” that it was 28 December 2016 “which is the first business day after the Christmas”. The applicant formed the belief that the first business day after Christmas was 28 December 2016, and that is the day on which he filed the application.
Although the applicant was not cross-examined on his affidavit, his evidence is doubtful. It is not apparent which registry the applicant contacted; and it is not apparent why, on about 22 December 2016, anyone from the “registry” would have told the applicant to file the application on the first business day after Christmas when 22 and 23 December 2016 were each business days. It is also implausible that a “receptionist” from the Tribunal advised the applicant of when the 35 day period prescribed by s 477(1) of the Act for filing an application in this Court expired. Nothing, however, turns on this. The delay was minor; and, for reasons that will become apparent below, I am satisfied there is sufficient merit in the grounds of application on which the applicant relies to warrant my making an order under s 477(2) of the Act.
I am therefore satisfied it is necessary in the interests of the administration of justice that the time for making the application for remedies under s 476 of the Act in relation to the Tribunal’s decision be extended up to 28 December 2016, and I will so order.
GROUND 1
The applicant relies on the two grounds contained in the amended application filed on 28 May 2021. Ground 1 is as follows:
The Tribunal committed jurisdictional error insofar as the Tribunal failed to take account of cogent evidence providing substantial support to the applicant's case, namely, evidence to the effect that the applicant and his wife had been attempting to conceive a child together for almost two years and had considered undergoing in vitro fertilisation (IVF) treatment for that purpose.
Particulars
a.The applicant's evidence to the Tribunal included the following:
i. Applicant's statement dated l July 2015: "I am living alone here in Sydney and really need a companion. Also, I am almost 63 years old without child and I and my wife would love to have our first child as soon as possible." (CB122)
ii. Letter from Dr John Kok (consultant endocrinologist) dated 31 July 2016 stating that he had been seeing the applicant since 10 December 2014, and relevantly, “He suffers from impotence related to his diabetes and old age that inhibits him and his current wife . . . from conceiving a child. . ..He has tried on four separate periods (May 2014, February 2015, October 2015 and January 2016) to have a baby with his wife ..." (CB283)
iii. Email from the applicant to the Tribunal describing his and his wife's desire to conceive a child together and their attempts to do so, including, “[Dr Kok] does not think I and wife need IVF to have babies. . .. I went over to Vietnam and Singapore total 3 times trying to have baby with my wife ... It is much easier to have babies when husband and wife not stay apart. My wife and I like to have babies as soon as we can.” (CB294)
iv. Further email from the applicant to the Tribunal describing his and his wife's desire to conceive a child together and medical advice he received, including, "My wife and I wish very much to have a baby as soon as we can. Also my doctor advised me to have a baby soonest possible due to my age. I will be 64 years old on 25/01/2017.”(CB296)
b.The Tribunal did not refer to any of the above evidence, or to the couple's attempts to conceive a child, or to their expressed desire to do so, and it should be inferred that the Tribunal did not consider any of that evidence.
c. There was a realistic possibility that the Tribunal's decision could have been different had the Tribunal taken account of the above evidence.
d. The Tribunal constructively failed to perform its duty to review: Minister forImmigration and Border Protection v SZMTA (2019) 264 CLR 421 at [13].
Parties’ submissions
The applicant submits the applicant’s informing the Tribunal of his and the visa applicant’s desire to have a child, and his disclosing the medical advice he had received about his and the visa applicant’s ability to conceive (Evidence), were relevant to the Tribunal’s assessment of all of the circumstances of the applicant’s and visa applicant’s relationship; but the Tribunal failed to consider the Evidence and, in so failing, made a jurisdictional error.
The applicant relies on the judgment of Jessup J in Li v Minister for Immigration & Citizenship.[37] In that case the primary judge found the Tribunal made no jurisdictional error in not addressing evidence that the parties in that case had plans to have a child, noting that the parties’ intention to have a child is not a specific criterion prescribed in reg 1.15A of the Regulations. On appeal Jessup J held the primary judge erred because reg 1.15A required the Tribunal to have regard to all of the circumstances of the relationship, and his Honour found that, by not considering this evidence, the Tribunal had failed to have regard to all of the circumstances of the relationship.
[37] Li v Minister for Immigration & Citizenship [2008] FCA 902
The Minister submits that the Tribunal’s reasons do not support an inference that the Tribunal did not consider the Evidence. The Minister submits the Evidence went no further than the applicant desiring to have a family. The Minister relies on the Tribunal having referred to the applicant’s evidence that he believed the visa applicant “is sincere because she was natural in their sexual activities”, and that, before they were married, the applicant explained to the visa applicant “that he wanted them to have a “golden family” and build a dynasty together”, and that the visa applicant understood and agreed with the applicant’s plan.
Determination
Subregulation 1.15A(2) of the Regulations required the Tribunal to “consider all the circumstances of the relationship” between the applicant and the visa applicant, including those prescribed in reg 1.15A(3). “[C]ircumstances of the relationship” in reg 1.15A(2) of the Regulations must be read as circumstances that are relevant to determining whether the relationship in question is a “married relationship”, as that expression is defined in s 5F(2) of the Act. That definition requires, among other things, that parties to the relationship in question have “a mutual commitment to a shared life as a married couple to the exclusion of all others”, and that the relationship is “genuine and continuing”.
The requirement prescribed by reg 1.15A(2) of the Regulations is mandatory. That means the Tribunal was required to “engage in an active intellectual process directed at”[38] identifying all of the circumstances of the relationship between the applicant and the visa applicant that were relevant to whether they were in a “married relationship”, and to determining whether the circumstances it identified satisfied the Tribunal that the applicant and visa applicant are in a “married relationship”. It is certainly the case that in undertaking these tasks the Tribunal was not obliged to refer in its reasons for decision to every piece of evidence and every contention the applicant or visa applicant made.[39] If, however, the Tribunal did not refer to “a critical piece of evidence or a particular issue . . . that fact might be one from which an inference can appropriately be drawn that the [Tribunal] did not consider it”; and “[t]hat, in turn, may be relevant to whether the [Tribunal] engaged actively with the matter”.[40] This passage uses the word “critical”; but that may be taken to include “material” so that, for example, evidence the Tribunal has not considered will be “critical” if, had it considered it, that “could realistically have resulted in a different decision”.[41]
[38] Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107, at [45]
[39] Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107, at [45]
[40] Singh v Minister for Home Affairs [2019] FCAFC 3, at [36]
[41] 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]
The Tribunal did not refer to the Evidence. Two questions, therefore, arise. The first is whether the Evidence is, or ought reasonably to have been considered by the Tribunal to be, a critical (in the sense of “material”) piece of evidence, or a critical circumstance. Assuming that is answered in the affirmative, the second question is whether the inference should be drawn that the Tribunal did not refer to the Evidence, either because it inadvertently failed to consider it, or because it otherwise did not consider the Evidence to be critical, or because the Tribunal otherwise did not engage in an active intellectual process directed to the Evidence.
Is the Evidence critical?
In my opinion the Evidence is material to the reasoning on which the Tribunal relied in concluding it was not satisfied the relationship between the applicant and the visa applicant is genuine and continuing, or that there is a mutual commitment to a shared life. The Tribunal found the applicant had a genuine commitment to a shared life with the visa applicant, but the Tribunal was not satisfied the visa applicant shared the applicant’s commitment. The Tribunal relied on the visa applicant having given false information to the delegate about the circumstances in which she met the applicant, the visa applicant not knowing much about the applicant, the visa applicant “did not present” as having a similar personality to the applicant, nothing in the visa applicant’s circumstances explained why she would commit to sharing her life with a person she does not know well, and the applicant’s generosity might motivate the visa applicant to be disingenuous in her dealings with the applicant. The Evidence, however, if accepted, was reasonably capable of bearing on the significance of each of the matters on which the Tribunal relied.
If accepted, the Evidence would have served as a basis for a finding that the visa applicant not only had expressed an intention to commit to a shared life with the applicant, but that she has acted in accordance with her stated intention by having made attempts over three or four periods to conceive a child with the applicant. That, in turn, would have been a powerful basis for inferring that the visa applicant truly intended to have a child with the applicant, which in turn would be a basis for finding that the visa applicant shared the applicant’s commitment to a shared life together to the exclusion of all others. It is outside the ordinary course of human experience that persons who intend to conceive a child with each other would nevertheless not be committed to each other to the exclusion of others. The Evidence, therefore, is a material, and therefore critical, piece of evidence, which the Tribunal ought reasonably to have so regarded; and the Evidence may even properly be characterised as one of a number of critical circumstances the Tribunal ought reasonably to have regarded as relevant to determining whether the applicant and visa applicant are in a married relationship.
Did the Tribunal consider the Evidence?
Given I have found the Evidence is evidence or a circumstance the Tribunal ought reasonably to have regarded to be material or critical, the Tribunal’s not referring to it by itself is a basis for inferring the Tribunal did not consider the Evidence or, if it did, it did not engage in an active intellectual process directed to determining whether the Evidence was material evidence or a critical circumstance; and I would and do so infer. But there are two other matters that support such inference.
First, there is the Tribunal’s findings in relation to the applicant’s evidence that he believed the visa applicant “is sincere because she was natural in their sexual activities”, and that, before they were married, the applicant explained to the visa applicant “that he wanted them to have a “golden family” and build a dynasty together”, and that the visa applicant understood and agreed with the applicant’s plan. The Tribunal said:[42]
The Tribunal accepts [the applicant] believes [the visa applicant] has the same expectations of the relationship but it does not accept that he knows her well enough to make that judgement. It is not more likely that [the visa applicant] is genuinely committed to the relationship because she enjoys their sexual relationship or because of [the applicant’s] generosity to her and her family. Indeed, as discussed below, [the applicant’s] generosity might motivate [the visa applicant] to be disingenuous in her dealings with him.
[42] CB309, [33]
The only aspect of the sexual relationship between the visa applicant and the applicant to which the Tribunal refers in this passage is the enjoyment or lack of enjoyment of their sexual relationship, and its relevance to assessing whether the visa applicant is genuinely committed to the relationship. Had the Tribunal been aware of the Evidence, or, if aware, had the Tribunal appreciated its materiality, as it ought to have, the Tribunal would have mentioned the Evidence at this point and considered whether the visa applicant’s having a sexual relationship with the applicant with a view to conceiving a child had any bearing on whether the visa applicant is genuinely committed to her relationship with the applicant. The Tribunal did not do so; and I find it did not do so either because the Tribunal did not consider the Evidence or otherwise did not, as it ought to have, identify the materiality of the Evidence.
Second, in paragraph 39 of its reasons, the Tribunal found that, given the visa applicant is not a witness of credit, “her oral and written statements of respect and affection for [the applicant] are not convincing”. The Tribunal’s only referring to the visa applicant’s “oral and written statements of respect and affection” indicate the Tribunal did not have regard to other evidence relevant to assessing the visa applicant’s statements of respect and affection for the applicant. Such evidence would have included the Evidence, had the Tribunal considered it or otherwise appreciated its relevance. Had the Tribunal considered the Evidence, as it ought to have, and accepted it, it would have found that the visa applicant was trying to conceive a baby with the applicant; and this would have been relevant to the Tribunal’s assessment of the visa applicant’s oral and written statements of respect and affection for the applicant.
Conclusion
The Evidence was material evidence or a critical circumstance in relation to which the Tribunal was bound to direct an active intellectual process to determine whether the applicant and visa applicant are in a “married relationship”, as that expression is defined in s 5F(2) of the Act. The Tribunal, however, did not consider the Evidence; or, if it did, the Tribunal did not engage in an active intellectual process directed to determining whether to accept the Evidence and, if it did, determining whether the Evidence, together with all the other matters it accepted, satisfied the Tribunal that the applicant and visa applicant are in a “married relationship”, as that expression is defined in s 5F(2) of the Act.
The applicant, therefore, succeeds on ground 1.
GROUND 2
Ground 2 is as follows:
The Tribunal committed jurisdictional error insofar as the Tribunal misconstrued or misapplied section 5F of the Migration Act 1958 (Cth).
Particulars
a. The Tribunal erred in law in proceeding upon the basis that it was necessary, at the time [the visa applicant] lodged her visa application, for her to have been committed to the relationship “because of affection for [the applicant]” (CB311 [52]) or to have the same degree of commitment to the relationship as the applicant, rather than being committed to the relationship for other reasons or her own reasons: Minister for Immigration and Border Protection v Angkawijaya (2016) 236 FCR 303 (Angkawijaya) at [3] (Allsop CJ).
b. The Tribunal erred in law and diverted itself from the statutory test in setting up a false dichotomy between [the visa applicant], on the one hand, obtaining a “positive migration outcome” (CB311 [52]) or wanting to be with the applicant “because of [the applicant’s] generosity to her” (CB[33] CB310 [43]), and on the other hand, having a “commitment to a shared life” (s 5F), which in law were not mutually exclusive: Re Minister of Immigration, Local Government and Ethnic Affairs v Dhillon (Unreported, Northrop, Wilcox and French JJ, 8 May 1990) at 10-11; Angkawijaya at [3].
c. The correct test was whether the applicant and his wife had a mutual commitment to a shared life as a married couple to the exclusion of all others “as at the time of the decision”, and irrespective of whether the Tribunal was satisfied there were mutual degrees of emotional or romantic love or affection: Angkawijaya at [64(2)].
d. There was a realistic possibility that the Tribunal's decision could have been different had it proceeded upon a correct understanding and application of the law.
This ground asserts two errors of law. The first is the Tribunal proceeded on the basis that the visa applicant and the applicant had to manifest an affection for each other before the Tribunal could be satisfied the applicant and visa applicant had a mutual commitment to a shared life as a married couple to the exclusion of all others. This is an incorrect understanding of the law because, as Allsop CJ said in Minister for Immigration and Border Protection v Angkawijaya, a “couple may have a commitment to each other to a shared life together as partners in the absence of what one might call emotional or romantic love”. [43] Second, the Tribunal proceeded on the basis that there was a clear dichotomy between, on the one hand, a person stating he or she has a commitment to another person because of a desire to obtain a favourable migration outcome and to continue to benefit from the other person’s generosity, and, on the other hand, the person claiming his or her relationship with the other person is genuine and continuing, and one committed to a shared life.
[43] Minister for Immigration and Border Protection v Angkawijaya [2016] FCAFC 5, at [3]. His Honour continued, however: “That is not to say that a mere agreement for money or material support in exchange for being in someone’s company and for tending to their needs (domestic and personal) is a mutual commitment to a shared life as partners.”
I do not agree that the Tribunal’s reasoning manifested these two asserted errors. The Tribunal found the applicant was committed to the relationship between him and the visa applicant, and the applicant believed the visa applicant was similarly committed; but the Tribunal found that the visa applicant was not committed to the relationship. In concluding the visa applicant was not committed to a relationship with the applicant, the Tribunal relied on its findings that the visa applicant was not a witness of credit, largely because the Tribunal found the visa applicant had given false information to the delegate; the visa applicant knew very little about the applicant; and there was nothing in the visa applicant’s circumstances that explained why she would commit to sharing her life with a person she did not know well.
Ground 2, therefore fails.
DISPOSITION
In addition to making an order under s 477(1) of the Act I will order that the Tribunal’s decision made on 18 November 2016 be quashed, and that the Tribunal consider according to law the applicant’s application for review of the delegate’s decision made on 24 April 2015.
Counsel for the parties agreed that costs should follow the event. Counsel for the applicant said the applicant would be seeking an order that the Minister pay the applicant’s costs as agreed or taxed. I will therefore order that the Minister pay the applicant’s costs as agreed, or as determined by such method of assessment as the Court may order.
I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis. Associate:
Dated: 4 March 2022
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