Thapa v Minister for Immigration

[2018] FCCA 2182

FEDERAL CIRCUIT COURT OF AUSTRALIA

THAPA v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2182

Catchwords:
MIGRATION – Application for review of a decision of the Administrative Appeals Tribunal – Partner (Temporary) (Class UK) visa – whether Tribunal failed to comply with reg.1.15A of the Migration Regulations 1994 (Cth) – jurisdictional error – matter remitted to the Tribunal for determination according to law.

Legislation:

Migration Act 1958 (Cth), ss.5F, 65, 359A.

Migration Regulations 1994 (Cth) reg.1.15A, Sch.2 cl.820.211

Cases cited:

Ali v Minister for Immigration & Anor [2018] FCCA 121.

Gill v Minister for Immigration and Border Protection (2017) 250 FCR 309.

Minister for Immigration v SZRKT (2013) 212 FCR 99.

SZDXZ v Minister for Immigration and Citizenship [2008] FCAFC 109.

SZWCO v Minister for Immigration and Border Protection [2016] FCA 51.

Applicant: SHEKHAR BAHADUR THAPA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2680 of 2016

Judgment of: Judge Hartnett

Hearing date: 21 May 2018

Delivered at: Melbourne

Delivered on: 10 August 2018

REPRESENTATION

Counsel for the Applicant: Mr Aleksov

Solicitors for the Applicant: M Joseph & Associates

Counsel for the Respondents: Mr Maloney

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. The decision of the Administrative Appeals Tribunal made on 10 November 2016 in matter number 1610601 be set aside.

2. The matter be remitted to the Administrative Appeals Tribunal for determination according to law.

3. The First Respondent pay the Applicant’s costs of the proceeding fixed in the sum of $7,328.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2680 of 2016

SHEKHAR BAHADUR THAPA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. By amended application filed 22 November 2017 the Applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 10 November 2016. The Tribunal affirmed a decision of a delegate of the Minister (‘the delegate’) on 28 June 2016 to refuse to grant the Applicant a Partner (Temporary) (Class UK) visa (‘the visa’) under s.65 of the Migration Act 1958 (Cth) (‘the Act’).

2. The Applicant relies upon one ground of review which is as follows:-

   “The decision of the Tribunal is affected by an error of the kind identified in Minister for Immigration v SZRKT (2013) 212 FCR 99, in that the Tribunal misconstrued the evidence as to the financial aspects of the relationship, in that it failed to appreciate that the joint bank statements submitted were separate from the business accounts and instead, conflated that evidence.”

3. The First Respondent seeks dismissal of the application and costs.

4. Before the Court is the evidence as contained in the Court Book filed 23 June 2017. The Applicant relies upon submissions dated 27 November 2017 and the Respondent upon submissions dated 3 May 2018.

Background

1. This is as accurately set out in the First Respondent’s submissions paragraphs 5 to 12 inclusive which are as follows:-

   “5. The Applicant is a citizen of Nepal and was born on 18 April 1986.

   6. On 27 April 2015, the Applicant applied for a Partner visa on the basis of his relationship with his sponsor, Ms Chozin Maitland (sponsor). The application was relevantly accompanied by two statutory declarations of supporting witnesses, the parties’ marriage certificate and letters from the Royal Melbourne Hospital relating to the sponsor’s cardiovascular condition.

   7. On 19 November 2015, the Delegate refused the application. The Delegate assessed the Applicant’s application against cl 820.211(2) of Schedule 2 of the Migration Regulations 1994 (Cth) (Regulations). Relevantly, cl 820.211(2)(d)(ii) requires that applicants satisfy criteria 3001, 3003 and 3004 of Schedule 3 of the Regulations ‘unless the Minister is satisfied that there are compelling reasons for not applying those criteria’. The Delegate found that the Applicant failed to satisfy criterion 3001 in that the Applicant ceased to hold a substantive visa more than 28 days prior to lodging his Partner visa application. The Delegate further found that no compelling circumstances for not applying that criterion applied, and therefore that the Applicant failed to meet the requirements of cl 820.211(2).

   8. On 21 March 2016, the Tribunal remitted the application to the Minister, with the direction that the applicant met cl 820.211(2)(d) of Schedule 2 of the Regulations. The Tribunal’s decision was founded principally on the sponsor’s psychological and physical health; a recent earthquake in Nepal which would have made it difficult for the Applicant to apply from abroad; and the Applicant’s efforts to rectify his visa status.

   9. On 16 May 2016, the Delegate requested further information from the Applicant, including as to the financial and social aspects of his relationship with the sponsor, the nature of their household and the nature of their commitment to one another.

   10. In response, the Applicant provided:

   a. a Vodafone bill addressed to the sponsor;

   b. Commonwealth Bank statements addressed to the Applicant and sponsor;

   c. Screenshots of text messages between the Applicant and sponsor;

   d. Photographs of the Applicant and sponsor;

   e. A copy of the marriage certificate previously provided and a copy of the change of name certificate relating to the sponsor.

   11. On 28 June 2016, the Delegate refused the application. The application was again assessed against cl 820.211(2) of the Regulations. Clause 820.211(2)(a) provides that the applicant must be the spouse or de facto partner of an Australian citizen, permanent resident or eligible New Zealand citizen, who must not be prohibited from being a sponsoring partner. The Delegate accepted that the parties were married, and noted that it was required to consider whether the applicant met the definition of ‘spouse’ provided by s 5F of the Migration Act 1958 (Act), which requires that the parties are validly married, mutually committed to a shared life together to the exclusion of others, in a genuine and continuing relationship and living together or not living permanently apart. That section is further informed by reg 1.15A of the Regulations, which provides indicia for determining whether the conditions of s 5F of the Act are met. These include indicia going to the financial and social aspects of the relationship, the nature of the household and the nature of the applicant and sponsor’s commitment to one another.

   12. Having regard to these provisions, the Delegate was not satisfied that the parties were in a genuine and continuing relationship. In particular, the Delegate noted that there was insufficient evidence of joint financial commitments and resources; that it was not satisfied the parties had established, and shared the responsibilities of, a joint household; that the evidence of the social aspects of the Applicant and sponsor’s relationship was not convincing and that there was no evidence the parties saw their relationship as long-term, drew emotional support from one another or had a commitment to a shared life together.”

The Tribunal

1. The Applicant applied to the Tribunal for review of the Delegate’s decision. The Applicant appeared before the Tribunal on 20 October 2016 to give evidence and present arguments in relation to the issues in his matter. The Tribunal also received oral evidence from the sponsor, Ms Chozin Maitland. The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages. The Applicant was represented by his migration agent. At the hearing, the Applicant provided further evidence which included cards exchanged between he and the sponsor and ten further statutory declarations from supporting witnesses.

2. On 20 October 2016, the Applicant was given an invitation, pursuant to s 359A of the Act, to comment on inconsistencies which the Tribunal had identified between the oral evidence of the Applicant and the oral evidence of the sponsor with respect to their residential history. Most notably, the Applicant had indicated that he had started living with the sponsor in 2012, some two years prior to their marriage in 2014; the sponsor indicated they did not live together until three or four months before their marriage in 2014.

3. The Applicant’s agent responded by email dated 3 November 2016, stating:-  

   “We have been advised that there has been error on both sides. It is very unusual but it did happen. There may have been issue with delay, memory, nervousness to name a few.”

4. Further documentary evidence was attached to the response, including screenshots of text messages between, and photographs of, the Applicant and sponsor; Commonwealth Bank statements addressed to the Applicant and sponsor; screenshots of the Applicant and sponsor’s Facebook pages; recent call records from the Applicant or sponsor’s phone; Vodafone call records; and a statutory declaration from a supporting witness.

The Tribunal decision

1. On 10 November 2016, the Tribunal affirmed the Delegate’s decision. Again, the Tribunal referred to cl.820.211(2) of Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’) and reg.1.15A of the Regulations (the latter was annexed to its reasons) and s.5F of the Act. The Tribunal had regard to the financial and social aspects of the relationship, the nature of the household and the nature of the Applicant and sponsor’s commitment to each other.

2. When considering the financial aspects of the relationship, the Tribunal found, critically, for the purposes of this judicial review application and its single ground of review, the following:-

   “14. Based on the evidence before it the tribunal is satisfied that the sponsor has a company which she manages, Chozin Painting Pty Ltd, and has a company car. The tribunal is satisfied that the sponsor's business has its own business account, and her earnings and savings are maintained through that business account. The tribunal is satisfied that the sponsor earns approximately $70,000 per year, and the sponsor is responsible for payment of the rent and utility bills. The applicant stated he did not have access to the sponsor's business account. The sponsor stated she had given him access to the business account, and given him her client number and password. The applicant stated after hearing this evidence that she had provided this information to him once but he could no longer remember it. The tribunal is satisfied that the applicant is not an active participant in the sponsor's business. The tribunal has considered that the parties stated their plans in the future were to purchase another business, but did not provide any detail of how they planned to make this purchase.

   15. After the hearing the applicant provided three joint bank statements dated from January to June 2015, July to December 2015 and from January to June 2016. The statements were 13, 20 and 20 pages long respectively, and contained many transactions, both debits and credits. The tribunal has considered that regular debits recorded in the statement related to amounts over $1000 and that the total debits for the period January to June 2015 were over $18,543, and for the period July to December 2015 were over $69,708, and for the period January to June 2016 were over $72,880. The tribunal does not accept that these statements are evidence of daily expenses, but are connected to the sponsor's business account. As the evidence of both parties in the hearing was that the sponsor manages the business and the applicant plays no role in the business and does not access the accounts, the tribunal gives little weight to the fact the applicant's name is on the account.”

3. Thereafter, the Tribunal concluded, relevantly:-

   “26. The tribunal is not satisfied that the parties jointly own assets, share investments, pool financial resources or legal obligations or share daily expenses. The evidence of the financial aspects of the relationship is evidence that indicates the sponsor is a business woman who manages the household and her business, and who sometimes employs the applicant who has resided in her home. The tribunal accepts the sponsor rents the home.”

Consideration

1. The Applicant asserts that the Tribunal’s decision is affected by a jurisdictional error of the kind identified in Minister for Immigration v SZRKT (2013) 212 FCR 99 (‘SZRKT’). The Applicant’s submissions assert that the Tribunal must consider the evidence advanced by the Applicant, in the sense of giving ‘active intellectual consideration to it’; and, if the Tribunal misunderstands or misconstrues evidence, and relied on that misunderstanding or misconstruction in its decision, this is ‘constructively equivalent to a failure to consider the evidence as actually advanced by the applicant and constitutes jurisdictional error’.[1]

   [1] Applicant’s submissions filed 27 November 2017, paragraph 3.

2. Referring to the financial records at pages 352-406 of the Court Book, the Applicant submits these include ‘frequent and numerous transactions for obvious ‘daily expense’ items including groceries (e.g. Coles and Safeway purchases)’. The Applicant submits that:-

   “Upon a fair review of this evidence the only explanation for the Tribunal’s finding that it ‘does not accept that these statements are evidence of daily expenses’ … is that the Tribunal must have misunderstood or misconstrued this important evidence. There was no tenable path of analysis open to the Tribunal upon which it could be said that these transactions were not evidence of ‘daily expenses’.

   In these circumstances, the appropriate inference is that the Tribunal failed to engage intellectually with the important evidence in the form of bank statements, which did constitute strong evidence of financial intermingling.”[2]

   [2] Applicant’s submissions filed 27 November 2017, paragraph 5-6.

3. The First Respondent submits the Applicant’s reliance on SZRKT, and the other authorities to which its submissions refer, is misplaced. The First Respondent submits that in SZRKT, the Tribunal ignored critical corroborative evidence, being a university transcript. In that case, the Tribunal rejected the Applicant’s claims about past events and experiences in Pakistan, which founded his claim to fear harm if he returned to Pakistan, because it believed he had not been truthful about his former study in that country. The university transcript went directly to the truth of his account of having studied there. Accordingly, the Tribunal made an error of fact which was critical to its conclusion; and its failure to consider the university transcript was tantamount to a failure to consider the Applicant’s claim.

4. The First Respondent submits that this is not a case:-

   “… where the Tribunal’s reasons do not display an active intellectual engagement with evidence or claims presented by an Applicant. The Tribunal has separately identified each of the joint bank statements the subject of the Applicant’s ground, and referred to specific figures contained in each of the documents. In assessing the statements, it has brought to bear the evidence that the sponsor has a business, in which the applicant plays no role. Having regard to the figures shown in the statements—in particular, individual debits of over $1,000, and, for each of the three periods covered by the statements, very substantial total debits, in two cases close to or exceeding the sponsor’s annual income—it has drawn the inference that the statements are connected with the sponsor’s business account.

   38. That inference was eminently open to the Tribunal. The fact that the bank statements contain transactions conceivably of a non-commercial nature does nothing to foreclose that inference. Further, it does nothing to support the claim that the Tribunal has constructively failed to consider the bank statements. There are several obvious possibilities consistent with the putative non-commercial expenses appearing in a business-related account held by the sponsor. The Tribunal records that the sponsor’s ‘earnings and savings are maintained through [her] business account’; so it is conceivable that she applies some funds from this account to personal expenses. It is also conceivable that some or all of the transactions which could be non-commercial are, in fact, business-related expenses. These hypotheses need not be tested or explored. They are raised to show that, contrary to the Applicant’s submission, there demonstrably was a ‘tenable path of analysis’ open to the Tribunal upon which it could reach the conclusion that the bank statements did not constitute evidence of ‘the basis of any sharing of day-to-day household expenses’ (per reg 1.15A(3)(v)).”[3]

   [3] First Respondent’s submissions filed 3 May 2018, paragraph 37-38.

5. In this matter, the Tribunal recorded that amongst the evidence before it, were three joint bank statements as set out in paragraph 15 of the Decision Record (see paragraph 11 above). These had been provided by the Applicant in order for the Tribunal to address the financial aspects of his relationship with the sponsor. The Tribunal set out its consideration of those statements in paragraph 15 of the Decision Record.

6. The Tribunal’s consideration was informed by s.5F of the Act which provided at the relevant time:-

   “(1)  For the purposes of this Act, a person is the spouse of another person if, under subsection (2), the 2 persons are in a married relationship.

   (2)For the purposes of subsection (1), persons are in a married relationship if:

   (a)  they are married to each other under a marriage that is valid for the purposes of this Act; and

   (b)  they have 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:

   (i)  live together; or

   (ii)  do not live separately and apart on a permanent basis.

   (3)  The regulations may make provision in relation to the determination of whether one or more of the conditions in paragraphs (2)(a), (b), (c) and (d) exist. The regulations may make different provision in relation to the determination for different purposes whether one or more of those conditions exist.

   Note:          Section 12 also affects the determination of whether the condition in paragraph (2)(a) of this section exists.”

7. Regulation 1.15A(3) of the Regulations provided at the relevant time:-

   “(1) For subsection 5F(3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5F(2)(a), (b), (c) and (d) of the Act exist.

   (2)  If the Minister is considering an application for:

   (a)  a Partner (Migrant) (Class BC) visa; or

   (b)  a Partner (Provisional) (Class UF) visa; or

   (c)  a Partner (Residence) (Class BS) visa; or

   (d)  a Partner (Temporary) (Class UK) visa;

   the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).

   (3)  The matters for subregulation (2) are:

   (a)  the financial aspects of the relationship, including:

   (i)  any joint ownership of real estate or other major assets; and

   (ii)  any joint liabilities; and

   (iii)  the extent of any pooling of financial resources, especially in relation to major financial commitments; and

   (iv)  whether one person in the relationship owes any legal obligation in respect of the other; and

   (v)  the basis of any sharing of day‑to‑day household expenses; and

   (b)  the nature of the household, including:

   (i)  any joint responsibility for the care and support of children; and

   (ii)  the living arrangements of the persons; and

   (iii)  any sharing of the responsibility for housework; and

   (c)  the social aspects of the relationship, including:

   (i)  whether the persons represent themselves to other people as being married to each other; and

   (ii)  the opinion of the persons’ friends and acquaintances about the nature of the relationship; and

   (iii)  any basis on which the persons plan and undertake joint social activities; and

   (d)  the nature of the persons’ commitment to each other, including:

   (i)  the duration of the relationship; and

   (ii)  the length of time during which the persons have lived together; and

   (iii)  the degree of companionship and emotional support that the persons draw from each other; and

   (iv)  whether the persons see the relationship as a long‑term one.

   (4)  If the Minister is considering an application for a visa of a class other than a class mentioned in subregulation (2), the Minister may consider any of the circumstances mentioned in subregulation (3).”

1. The Court does not accept the submissions of the First Respondent.

2. In considering a partner visa application, the Tribunal was required to consider, as a stated matter incumbent on the Tribunal to consider, the financial aspects of the relationship. In that consideration, the Tribunal clearly made an illogical and erroneous finding of fact in its conclusions made upon an examination of the relevant bank statements of the Applicant and his sponsor, which the Court finds, was material to the Tribunal’s ultimate conclusions.[4]

   [4] Gill v Minister for Immigration and Border Protection (2017) 250 FCR 309, 82.

3. The Tribunal’s error was not one on which reasonable minds may differ.[5] The Tribunal’s error was critical to the Tribunal’s ultimate decision. The Tribunal was “required to weigh all of the circumstances of the relationship. None of the circumstances of the relationship could be understood as independent”[6]

   [5]  SZWCO v Minister for Immigration and Border Protection [2016] FCA 51, 63.

   [6] Ali v Minister for Immigration & Anor [2018] FCCA 121, 40.

4. The Court finds that the Tribunal constructively failed to consider the bank statements the Applicant put before the Tribunal as evidence of ‘daily expenses’ of the Applicant and the sponsor. Those expenses were incurred via a joint bank account and could not be attributable to business expenses. There was not, as submitted by the First Respondent, a ‘tenable path of analysis’ open to the Tribunal upon which it could find many of the transactions across the bank accounts tendered, did not provide evidence of ‘daily expenses’, and by inference drawn by the Tribunal, were statements connected with the sponsor’s business account. The bank accounts did constitute evidence of a ‘sharing of day to day household expenses’.[7] The Applicant has demonstrated to the Court,[8] that it is appropriate to draw the inference that the Tribunal failed to engage intellectually with the documentary evidence which was the bank statements, those statements putting before the Tribunal evidence of the parties intermingling of their finances and purchasing of ‘daily expenses’.

   [7] Migration Regulations 1994 (Cth) reg.1.5A(3)(v).

   [8] SZDXZ v Minister for Immigration and Citizenship [2008] FCAFC 109, 25.

5. Jurisdictional error attends the Tribunal decision.  

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Date: 10 August 2018