Thongkham v Minister for Immigration

[2020] FCCA 935

FEDERAL CIRCUIT COURT OF AUSTRALIA

THONGKHAM v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 935

Catchwords:
ADMINISTRATIVE LAW – Application for judicial review of decision made by the Administrative Appeals Tribunal – legal unreasonableness – failure to give proper consideration to merits – no jurisdictional error established.

Legislation:

Migration Act 1958 (Cth), s.5CB

Migration Regulations 1994 (Cth), sch.1 cl.801.221(2)

Cases cited:

Khan v Minister for Immigration and Ethnic Affairs [1987] FCA 713

Minister for Immigration and Citizenship v Li [2013] HCA 18

Applicant: PINTHAITHAE THONGKHAM

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3864 of 2017

Judgment of: Judge Obradovic

Hearing dates: 8 May 2019 and 5 September 2019

Date of Last Submission: 5 September 2019

Delivered at: Parramatta

Delivered on: 27 April 2020

REPRESENTATION

Appearing for the Applicant: Mr Guan

Solicitors for the Applicant: Paul Guan & Associates

Counsel for the Respondents: Mr Johnson

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The Further Amended Initiating Application filed 8 August 2019 is dismissed.

2. The applicant is to pay the costs of the first respondent as agreed or assessed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

SYG 3864 of 2017

PINTHAITHAE THONGKAM

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

And

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and Background

1. The applicant is a national of Thailand.

2. On 15 March 2013 the applicant applied for a partner visa on the basis of his relationship with his sponsor, who was an Australian citizen.

3. On 7 April 2014 the applicant was granted a temporary partner visa.

4. The applicant says that he and his sponsor met online and then in person at the applicant’s home on 4 November 2012.

5. The applicant and his sponsor began cohabitation on 31 December 2012 and registered their relationship with the Registry of Births, Deaths and Marriages on the same day.

6. On 6 October 2016 a delegate of the Minister refused to grant the applicant a visa on the basis that the applicant failed to meet the requirements of clause 801.221(2) of Schedule 2 of the Migration Regulations 1994 (Cth), essentially that the applicant did not satisfy the definition of ‘spouse’ or ‘de-facto partner’ pursuant to s.5CB of the Migration Act 1958 (“the Act”).

7. On 18 October 2016 the applicant applied to the Administrative Appeals Tribunal (“the Tribunal”) for a review of the delegate’s decision.

8. On 12 October 2017 the Tribunal heard the applicant’s application for review.

9. On 4 December 2017 the Tribunal affirmed the decision of the Minister’s delegate not to grant the applicant a partner visa on the basis that the evidence did not support a finding that the parties were in a genuine and continuing relationship as required by the Act.

10. On 13 December 2017 the applicant filed an Application in the Federal Circuit Court of Australia seeking judicial review of the Tribunal’s decision.

11. The application for review was listed for final hearing on 8 May 2019. On that day, the matter was adjourned part heard to 5 September 2019 with an order made for the applicant to file and serve a Further Amended Initiating Application by 12 July 2019 and written submissions by 23 August 2019.

12. The applicant changed legal representatives following the 8 May 2019 hearing which saw the applicant file the Further Amended Initiating Application on 8 August 2019 and his written submissions in support of his application on 21 August 2019.

13. Leave was granted to the applicant to rely on the late filed Further Amended Initiating Application on 5 September 2019.

Applicant’s Arguments

1. The Further Amended Application filed on 8 August 2019 relies on two grounds of judicial review, being:

   a)Legal unreasonableness; and

   b)Failure to give proper, genuine and realistic consideration to the merit of the case before it.

2. In Ground 1, the applicant asserts, namely:

   a)That the decision of the Tribunal was contrary to the facts or the evidence provided.  

   Particulars:

   The Tribunal found that the evidence given by the applicant lacked in detail despite that:

   i)The applicant and sponsor had given a detailed statement of the relationship history and current situation;

   ii)The applicant and sponsor had given detailed evidence on how they combined and pooled their financial resources to purchase and operate a business, to meet their living expenses and daily costs;

   iii)The applicant and sponsor had provided evidence of where they had lived together and what their domestic life was like such as division of housework;

   iv)The applicant and sponsor provided the details of with whom they usually socialise, details of wedding and funeral they attended together, details of joint trip, as well as six statutory declarations of supporting witnesses and three witnesses who appeared at the tribunal hearing;

   v)The applicant and sponsor gave details of the length of time they lived together and how they cared for one another;

   b)There were no logical or probative basis for its findings and reasoning given in the tribunal’s decision record.

   Particulars:

   i)Its finding on financial aspects in their relationship;

   ii)Its finding on nature of household in their relationship;

   iii)Its findings on the nature of their commitment to the relationship; and

   iv)Its findings on whether the parties were in a genuine and continuing de facto relationship.

3. The applicant says that the Tribunal was not justified in the concerns it expressed as “considerable” and that any inconsistencies provided in answers at the Tribunal hearing could be a matter of simple error or understood from an alternate perspective.

4. In Ground 2, the applicant argues that:

   a)The Tribunal filed to give proper, genuine and realistic consideration to the merits of the case before it.

   Particulars:

   i)Its finding on financial aspects in their relationship;

   ii)Its finding on nature of household in their relationship;

   iii)Its findings on the nature of their commitment to the relationship; and

   iv)Its overall findings.

5. In respect of the first ground, the applicant in essence argued that the Tribunal made findings about four matters and then came to the conclusion that the applicant did not meet the statutory criteria. It was submitted that the Tribunal’s decision was irrational, illogical and that the findings were not open on the evidence.

6. In respect of the second ground, the applicant posed the question as to whether the Tribunal considered all the relevant documents and evidence, and that if it did, it did not engage intellectually with the material before it.

7. There were four areas identified by the applicant in respect of which it was asserted that the Tribunal failed to properly exercise its functions; namely the financial aspects of the relationship, the joint household, social aspects and commitment to each other, ultimately leading the Tribunal to findings which were irrational and illogical. 

Court’s Determination

1. A decision affected by jurisdictional error is, as a matter of law, no decision at all. A jurisdictional error in the requisite sense of these proceedings can be understood as an error which has led the Tribunal to somehow fail to fulfil its duty and function of reviewing the decision of the delegate. In order to succeed, the applicant must establish that the Tribunal’s decision is affected by jurisdictional error.

2. It is a matter for the Tribunal to assess the genuineness of the relationship by reference to the indicia set out in the Migration Regulations 1994 (Cth) (“Regulations”).

3. The Tribunal properly identified the issue in the case being whether the applicant was the de facto partner of the sponsor as defined in s5CB of the Act. In forming this opinion, the Tribunal recognised that it must give consideration to all of the circumstances of the relationship.[1]

   [1] CB 332 at [23]

4. Applying the criteria of the Regulations, the Tribunal was not satisfied that the applicant and the sponsor were in a de facto relationship. It found:

   a)That the parties presented limited evidence of the financial aspects of the relationship to support its genuineness.[2]

   b)That there was little evidence to substantiate that the parties had established a joint household or that they shared household responsibilities.[3]

   c)That the applicant and the sponsor socialised together with some family members and a select group of friends and that they represented themselves as being in a de facto relationship.[4]

   d)That the parties presented little evidence to demonstrate their commitment and the way in which they provided emotional support and companionship to each other. It found that there was limited evidence to suggest the parties viewed their relationship as a long term one. [5]

   [2] CB 333 at [29]

   [3] CB 334 at [36]

   [4] CB 334 at [40]

   [5] CB 335 at [41], [47]

5. The Tribunal ultimately found that there was insufficient evidence to persuade the Tribunal of the prescribed factors it needed to consider as to whether the applicant and his sponsor were in a genuine de facto relationship. It found overall that having considered the circumstances of the relationship the weight of the evidence did not support a finding that the parties were in a genuine and continuing relationship.[6]

   [6] CB 335 at [48]

6. Despite being given ample opportunity to articulate his case, including an adjournment, the submissions by the applicant were nevertheless confusing and difficult to follow. This was notwithstanding that the applicant had been throughout the proceedings legally represented, albeit he changed his legal representation prior to the adjourned hearing. The written submissions relied upon in support of the amended application were confusing in the way they attempted to address the grounds articulated in the Further Amended Initiating Application.

7. The oral submissions took on a different tact and were again confusing and difficult to follow when regard was had to the grounds for review.

8. The Court has done its best to properly understand the arguments put forward on behalf of the applicant.

9. At the commencement of oral argument on the adjourned hearing date, the applicant’s representative summarised the grounds as follows:

   a)Ground 1: that the Tribunal acted unreasonably; and

   b)Ground 2: that there was a failure by the Tribunal to give proper consideration to the merits of the case.

Ground 1

1. As noted above, the applicant argued that there was legal unreasonableness in the way the Tribunal came to its determination.

2. The law on legal reasonableness is well established.  Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.[7]

   [7]Minister for Immigration and Citizenship v Li [2013] HCA 18 at [76]

Particular 1 – findings were contrary to facts or the evidence

1. In respect of the first limb of the first particular, the applicant does no more than list matters which are statements of disagreement with the Tribunal’s findings. There is no identification of any jurisdictional error.

2. In respect of the second limb of the first particular, the applicant asserts that there was no logical or probative basis for the Tribunal’s findings in relation to the factors it was required to consider. These matters are addressed in further detail below.

Financial Aspects

1. The applicant argues that there was detailed evidence as to how the applicant and the sponsor combined and pooled their financial resources to purchase and operate a business and to meet their living expenses and daily costs. As such, it was submitted that if the Tribunal accepted the applicant’s statement then it could not have said that there was limited evidence about financial aspects of the asserted relationship. It was submitted that the findings were not justified or intelligible.

2. The Tribunal took the matters referred to by the applicant into account.[8]

   [8] CB 333 at [26]-[29]

3. The Tribunal accepted that the applicant and the sponsor were in a joint business venture together and were directors of a company linked to the business, but was not satisfied by reference to the financial aspects of the relationship. The Regulations specifically refer to joint assets, joint liabilities and the pooling of resources. The Tribunal found that the applicant and the sponsor had no joint liabilities or major assets together at the time of hearing, and that there was limited evidence that the parties had shared or pooled financial resources.

Joint household

1. The applicant argues that the applicant and the sponsor gave detailed evidence of where they lived together since the commencement of the relationship and that each gave a detailed description of the living arrangements, including the division of housework. It was submitted that the important thing was not the inconsistencies in the address which were given by the applicant, but rather that the Tribunal failed to take things into consideration; albeit it was not articulated what the Tribunal failed to take into consideration.

2. The evidence of the applicant and the sponsor was expressly mentioned in the Tribunal’s reasons[9], and such evidence was factored into its conclusions. The Tribunal did not reject the evidence, rather it said that the evidence was limited[10].

   [9] CB 333 - 334 at [31]-[35]

   [10] CB 334 at [36]

Commitment

1. It was submitted on behalf of the applicant that the degree of companionship and emotional support, the business which the applicant and sponsor ran together, that they had saved money, the photographs and statutory declarations was all evidence which would lead a reasonable person to say that they were in a committed relationship. It was submitted that there was no evidence to the contrary, namely that they were not in a committed relationship.

2. It was further submitted that there was no intellectual engagement with the applicant’s evidence, just a list of things which the Tribunal mentioned without actually engaging with it.

3. The Tribunal expressly referred to, and considered the contents of the six statutory declarations relied upon by the applicant. It was not satisfied that the statements provided any convincing reasons or real insight into why the witnesses believed the relationship between the parties were genuine. The Tribunal did accept that there was evidence that the parties socialised together and some positive weight was given to that factor.

4. The Tribunal referred to the evidence of the applicant’s circumstances, the circumstances of the relationship, including its duration, to the fact that the applicant was the sole income earner and that they lived off the applicant’s wage and that the evidence as to how the applicant and the sponsor travelled to work.

5. The Tribunal did engage with the evidence and the case put forward by the applicant. The submissions of the applicant are not made out.

6. What the applicant in fact does, is that he seeks an impermissible merits review of the Tribunal’s findings in respect of the evidence.

Particular 2 – an objection to findings

1. It was submitted on behalf of the applicant in the written submissions that:

   The second particular was an objection to the findings about the inconsistencies given by the Applicant and the sponsor to five questions.

2. The five questions were identified by the applicant’s representatives in the submissions as the questions put to the applicant in respect of inconsistencies identified by the Tribunal during the hearing.

3. It was further submitted on behalf of the applicant in the written submissions that:

   The tribunal appeared to give adequate weight to a relevant factor of great importance or had give excessive weight to an irrelevant factor of no importance. Some concerns might reasonably be classified as a relevant (sic) factor of no importance.

   In conclusion, we submit that the Tribunal had acted unreasonably.

4. In oral submissions, it was said on behalf of the applicant that there was too much emphasis by the Tribunal on inconstancies, and even if there was such inconsistencies they could be ignored. There was then an attempt to address these inconsistences and submissions were made about why these matters were not important and as such that the Tribunal’s findings were not open to it as they were against the weight of the evidence. 

Overall findings

1. The submission made on behalf of the applicant, namely that:

   We believe that a reasonable person would make a finding that the applicant and sponsor did not give (sic) inconsistent answers to these questions or the so called inconsistencies were trivial if any and could be reasonably disregarded

   is to attack the merits of the findings, rather than to identify any jurisdictional error which is said to have occurred. It is an important misunderstanding of the nature of the jurisdiction of this Court in respect of judicial review.

2. The findings of the Tribunal were open to it on the evidence.

3. Simply because another reasonable person might have made a different finding does not mean that a finding was legally unreasonable, illogical or irrational.

4. The applicant has not shown that the Tribunal acted with legal unreasonableness in its findings and decision.

5. The Tribunal was not definitive to say all the evidence pointed to one thing or another. It did say that there were aspects of the evidence which pointed to a de facto relationship, but that other evidence did not support that finding. This was not illogical or unreasonable. The Tribunal referred to relevant evidence, at the heart of its decision was a finding that there was a lack of critical evidence.

Ground 2

1. The second ground of the amended application relies on the same errors which have been asserted in the first ground, namely in respect of financial aspects, joint household, commitment and overall findings.

2. The second ground does no more than seek to have the Court re-assess the evidence that was before the Tribunal, which is not the function of the Court. It invites the Court to review the decision on its merits, which is not permissible. 

3. This much is clear from the applicant’s misunderstanding of what it means to give a “proper, genuine and realistic consideration to the merits of the case.” Properly understood, it is a reference to an improper exercise of a discretionary power in accordance with a rule or policy, without regard to the merits of a particular case.[11] This is not what the Tribunal did.

   [11] Khan v Minister for Immigration and Ethnic Affairs [1987] FCA 713 at [22] per Gummow J

4. For reasons which are referred to above, the Court does not find that the Tribunal failed to engage with the applicant’s case.

Conclusion

1. The applicant has not satisfied the Court that the Tribunal has made any jurisdictional error and accordingly the Further Amended Initiating Application filed on 8 August 2019 is dismissed with costs. 

I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of Judge Obradovic

Associate:

Date: 27 April 2020