To v Minister for Home Affairs
[2020] FCCA 3018
•10 September 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| TO v MINISTER FOR HOME AFFAIRS & ANOR | [2020] FCCA 3018 |
| Catchwords: MIGRATION – Application for judicial review of a decision of the Administrative Appeals Tribunal to refuse the applicant a partner visa – where the Tribunal was not satisfied the applicant met the requirements of cl 801.221(6)(b) and (c) of the Migration Regulations – where the Tribunal found the relationship between the applicant and his sponsoring partner ceased prior to the applicant suffering family violence committed by the sponsoring partner – whether the Tribunal incorrectly determined the meaning of “pooling of financial resources” – where the Tribunal made an error in not adequately considering the nature of the household of the applicant and his sponsoring partner and their commitment to each other – where the Tribunal in overlooking the full extent of the parties’ sharing has misunderstood the meaning of “pooling” – the errors of the Tribunal amounts to jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), s.5F Intervention Orders (Prevention of Abuse) Act 2009 (SA) Migration Regulations 1994 (Cth). Sch.2 cl.801.221(6)(b), sch.2 cl.801.221(6)(c), regs.1.15A, 1.23 Federal Circuit Court Rules 2001 (Cth), sch.1 pt.3 div.1 item 3 |
| Cases cited: He v Minister for Immigration and Border Protection (2017) 255 FCR 41; [2017] FCAFC 206 Pelka v Secretary, Dept of Family and Community Services (2006) 151 FCR 546; [2006] FCA 735 |
| Applicant: | VAN DUNG TO |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | ADG 170 of 2019 |
| Judgment of: | Judge Young |
| Hearing date: | 10 September 2020 |
| Date of Last Submission: | 10 September 2020 |
| Delivered at: | Darwin |
| Delivered on: | 10 September 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Churches |
| Solicitors for the Applicant: | Cares Lawyers |
| Counsel for the First Respondent: | Ms Wells |
| Solicitors for the First Respondent: | Australian Government Solicitor |
ORDERS
A writ of certiorari issue directed to the second respondent quashing the decision of the second respondent dated 3 April 2019.
A writ of mandamus issue directed to the second respondent requiring it to determine according to law the application made to it for review of the decision of a delegate of the first respondent dated 21 August 2017.
Parties may file written submissions in relation to costs within seven days, failing which there will be an order that the first respondent pay the applicant’s costs fixed in the sum of $7,467.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT DARWIN |
ADG 170 of 2019
| VAN DUNG TO |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 3 April 2019 affirming a decision of the Minister’s delegate of 21 August 2017 to refuse the applicant a partner visa.
Background
The applicant is a citizen of Vietnam. His former partner is Ms Huynh, whom he met in Vietnam. Ms Huynh is an Australian citizen. In 2013 the applicant travelled to Australia where he married Ms Huynh. The applicant is 43 years old, Ms Huynh is 52 years old. They have not had children together, although Ms Huynh has two adult children by a former relationship. [1]
[1] There was a reference to a third child in the applicant’s materials but the evidence before the Tribunal mentioned only two children.
The applicant was granted a Subclass 820 Partner visa on 21 January 2014 on the basis that he was in a spouse relationship with his sponsor, Ms Huynh. On 7 November 2013 the applicant applied for a partner visa on the same basis.
The applicant and Ms Huynh shared houses or flats in Adelaide until about 27 May 2017 when the applicant left the former matrimonial home. On 2 June 2017 he applied under the Intervention Orders (Prevention of Abuse) Act 2009 (SA) for an interim intervention order against Ms Huynh, which was made on 7 June 2017. The application was listed for hearing on 14 June 2017. Ms Huynh did not appear and the order was made final on that day.
The Minister’s delegate refused the application for a partner visa on 21 August 2017 because the delegate was not satisfied that the applicant met the requirements of cl 801.221(6)(b) and (c) of the Migration Regulations which, in general terms, permitted the issue of a visa if the relationship between the applicant and the sponsoring partner had ceased and the applicant had suffered family violence committed by the sponsoring partner. However, the delegate was not satisfied that the applicant met a necessary criterion, which required that the applicant and the sponsoring partner lived together with a mutual commitment to a shared life as husband and wife at the time of the family violence. In substance, the delegate found the applicant did not satisfy the criteria for a partner visa because he and his sponsoring partner had separated under one roof before the family violence occurred.
The Tribunal reached the same conclusion as the delegate for the same reason.
The evidence
The applicant’s application was supported, in addition to his own statement, by statutory declarations and statements from other people. Ms Huynh (then still his partner) made a statutory declaration in November 2015 where she described a conventional married relationship. She mentioned that the parties did not have a joint account because “my husband wants to respect my finance”. There was no further explanation on that point. She went on to say that she was in full-time employment so she could “support my husband in renting and all the bills”. She said her husband did some part-time work.
There were other statutory declarations from 2015 from friends of the applicant or Ms Huynh attesting to their relationship in conventional terms.
The applicant also submitted statutory declarations made in 2017, following his separation from Ms Huynh in May 2017. Ms N T Ho, the landlady of the applicant and his wife from September 2015, provided a statutory declaration dated 16 July 2017. She said there was no written rental agreement with the applicant and his wife. She said this was not necessary because she knew the applicant’s wife and her family very well. She said the rent was paid monthly and she:
… would collect the rent on a monthly basis from either of them and provide whoever gave me the money with the receipt in that person’s name.
Another statutory declaration from a V T Ho dated 21 July 2017 said that from the declarant’s “direct observation” the declarant believed the applicant and Ms Huynh were in a genuine and continuing relationship “that was most unfortunately ended by domestic violence”.
A declaration from a Mr Tran dated 20 July 2017 made similar remarks saying that he had known Ms Huynh before she married the applicant and attended their wedding. He said:
… their marital separation came as a surprise to me as I was always under the impression they were a happily married couple.
A declaration from a Ms Thi Loan Tran dated 21 July 2017 said that she had known Ms Huynh for several years before her marriage to the applicant. She said she was saddened by their separation and went on to say
I believe that they were, prior to this, in a genuine and continuing relationship as they always seemed happy and affectionate with each other…
When the matter came before the Tribunal the applicant also relied on a statement from Ms Doan, Ms Huynh’s daughter, dated 20 March 2019. Ms Doan said that she and her younger brother lived in the matrimonial home until about January 2016 when they both moved out. Ms Doan moved in with her partner (who was described as her husband by the applicant in photographs taken in 2015 and 2016) and her brother moved to other premises. The statement does not say what precipitated the move but it would appear that Ms Doan was an adult at the time and moved out to be with her partner. I infer from the fact that her brother lived independently when he left the home that he was probably an adult too. The statement says that both Ms Doan and her brother had a good relationship with the applicant. She said, in effect, that the applicant and her mother had a conventional married relationship with the sharing of tasks and responsibilities. She said she was not aware of the financial aspects of the relationship. Unfortunately, the statement does not have a clear chronology and it is unclear whether all of Ms Doan’s observations relate to the period prior to her moving out in January 2016 or not. No mention is made of Ms Doan being questioned by the Tribunal.
The applicant also relied on a series of photographs taken in various circumstances, usually family gatherings in restaurants, and at various times from January to December 2016. The photographs show the applicant and Ms Huynh publicly presenting as a couple.
Ms Thi Loan Tran was questioned by the Tribunal. According to the Tribunal Ms Tran said the applicant and his wife were a happy couple until about mid-2015. She said that the applicant and his wife used to come to visit but they stopped visiting her home in about mid-2015. She told the Tribunal that it was “about the middle of their relationship” when the applicant and his wife “stopped socialising together”. Ms Tran said she was aware the relationship “had soured” and this occurred when the applicant and his wife moved into their third premises together. According to the Tribunal, the evidence established that they moved into these premises in about mid-2015. The Tribunal did not refer to the evident inconsistency between Ms Tran’s oral evidence and the evidence in her statutory declaration. The Tribunal also noted that the wife’s children moved out of the household “shortly afterwards” in early 2016. The Tribunal said it placed substantial weight on this evidence.
The applicant appears to be the only other witness who gave oral evidence. The applicant also gave written evidence in an official “Partner Visa (Applicant)” statutory declaration dated 4 November 2015. The applicant stated that he and his wife did not have a joint bank account
…because I do not have a regular work yet, and I respect my wife finance (sic).
The applicant also provided a statement dated 24 July 2017, after he left the former matrimonial home. In the statement the applicant said that his wife earned about $1,200 a fortnight and he earned on average about $700 a fortnight. He said he gave most of his pay to his wife and she did
…all the shopping and used my contribution towards food and household expenses.”
The applicant claimed his wife had “a gambling problem”. He said this was the reason they had no savings. He said “we could not go on holidays or purchase anything valuable.” He said his wife exercised “financial control”. His statement otherwise made conventional claims of shared responsibilities and a shared life.
The legislative framework
The applicant applied for a Partner (Residence) visa. The requirements for that visa are set out in the Migration Act (“the Act”) and Migration Regulations (“the Regulations”). Section 5F of the Act provides:
Spouse
(1) For the purposes of this Act, a person is the spouse of another person (whether of the same sex or a different sex) 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 a married couple 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.
Regulation 1.15A of the Regulations provides:
Spouse
(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).
Regulation 1.23 of the Regulations relevantly provides:
…
Circumstances in which family violence is suffered and committed - court order
(4) The alleged victim is taken to have suffered family violence, and the alleged perpetrator is taken to have committed family violence, if:
(a) a court has made an order under a law of a State or Territory against the alleged perpetrator for the protection of the alleged victim from violence; and
(b) the order was made after the court had given the alleged perpetrator an opportunity to be heard, or otherwise to make submissions to the court, in relation to the matter.
(5) For subregulation (4), the violence, or part of the violence, that led to the granting of the order must have occurred while the married relationship or de facto relationship existed between the alleged perpetrator and the spouse or de facto partner of the alleged perpetrator.
The Tribunal’s consideration
It was not in dispute that the Magistrates Court at Port Adelaide made a final order under the Intervention Orders (Prevention of Abuse) Act (SA) on 14 June 2017. In accordance with Regulation 1.23(4) the applicant is thus
…taken to have suffered family violence, and the alleged perpetrator is taken to have committed family violence.
The decisive question for the Tribunal was whether Regulation 1.23(5) was satisfied, that is, whether the applicant suffered family violence
…while the married relationship or de facto relationship existed between the alleged perpetrator and the spouse.
A consideration of all the factors in Regulation 1.15A is necessary to determine whether the conditions required for the existence of a “married relationship” as defined by s 5F are satisfied: He v Minister for Immigration and BorderProtection (2017) 255 FCR 41.
The Tribunal addressed the factors in Regulation 1.15A but its consideration focussed on particular aspects of the evidence. The applicant and his wife lived in very modest circumstances. They rented a home, in reality a granny flat at the landlady’s house, so they did not have a mortgage. They did not have any investments. Their income from the wife’s full-time employment and the applicant’s casual or occasional employment was modest. In considering the financial aspects of the relationship the Tribunal gave particular attention to the extent of “pooling of financial resources” which, of necessity, was limited to their modest incomes from employment.
The meaning of “pooling” was discussed by French J (as he then was) in Pelka v Secretary, Department of Family and Community Services (2006) 151 FCR 546. Discussing comparable legislation his Honour, referring to the New Shorter Oxford English Dictionary, said the ordinary meaning of “pool” was:
Put resources into a common stock or fund; share in common, combine for the common benefit.
The applicant gave evidence that his wife was a gambler and the Tribunal questioned the applicant about this subject. The Tribunal recorded at paragraph [20] of its reasons that the applicant complained that his wife spent money “on junk things – like clothes.” The Tribunal continued:
… this transpired to be from gambling her earnings of around $600 per week as well as his earnings of $400 per week (aside from $100 retained by him) at the casino.
On this basis the Tribunal said at paragraph [23] that:
The Tribunal accepts that some funds (from those withheld by the applicant from his wages and/or some winnings) go towards day-to-day living expenses but the Tribunal considers the extent of “pooling of financial resources” or sharing of day to day household expenses is low in circumstances where the lion’s share of income is used to support the sponsor’s gambling habit.
I have sought to find the evidentiary basis for this conclusion in the materials before me.
As noted the applicant relied on a written statement dated 24 July 2017. The applicant said that he gave most of his pay to his wife and she did all the shopping and used his contribution towards food and household expenses. This statement referred to the wife’s gambling but did not specify any amount that was gambled.
The applicant also relied on, without objection, a transcript of the interview between himself and the Tribunal member. The following passage is in relation to the money earned by the applicant. “V” denotes the applicant, speaking through an interpreter, and “M” denotes the Tribunal member:
V: when I arrived I wasn’t short of anything. So I just worked. Earned 400 keep 100 and give her 300 that’s it.
M: and what did she use the $300 for?
V: everyday expense.
M: can you give me examples.
V: food, accommodation expense.
M: by that do you mean rent? Was rent paid?
V: yes rent.
M: food and accommodation expenses stop anything else?
V: everyday … washing detergent things like that.
M: alright how about things like bills …
V: my wife will pay for all of that.
M: but is that using the $300 that you gave?
V: yes come from my income as well because I work out door. Sometimes I work 3 days sometimes I work 4 it depends.
Later in the same transcript the applicant was asked about his wife’s earnings as follows:
M: alright what did she do with the money that she earned being $600 a week.
V: she said that the money she saves it so later on we can travel together.
…
M: did she spend that money on anything else?
V: she use that money for buying things for the house and extra money for savings.
Later the applicant said that his wife visited a casino:
M: and did she spend all her money gambling with her friends?
V: I didn’t know. I lay my trust on her. Not until later on I learned about that but when I found out all the money was gone.
M: what did you find out? That she was spending her earnings gambling?
V: yes.
…
V: at the… time. When I learned about the gambling at that time all the money gone.
M: all on gambling?
V: yes.
M: and when did you find out about this?
V: about 2014 and on.
M: that’s very early on in your marriage.
V: the first year was happy. Not until later in 2015.
M: but you just changed your evidence. Earlier you said that 2014 was when you first found out that she had a gambling problem and she was spending her money and your money on gambling.
Right, so the pooling of resources and spending money to develop a household as a couple seems to be inconsistent with her spending her money and your money on gambling since 2014.
V: I lay my trust on her. I let her manage everything so I didn’t know what she did.
It can be seen from the transcript that the Tribunal member introduced the notion of the applicant’s wife spending “all” her money on gambling. Later the applicant said that he discovered “all the money gone” which, in context, is apparently a reference to the wife spending their savings on gambling.
In my view, these questions and answers do not justify the Tribunal’s conclusion that the lion’s share of the income of the wife and the applicant was spent gambling and that there was, therefore, no financial “pooling” for the common benefit. The applicant’s earlier answers clearly point to “pooling” of income for joint expenses.
It may be accepted that if the applicant’s wife, in fact, used all her money and all the money the applicant gave her for gambling that did not constitute “pooling” of their money. However, it is clear that the parties rented premises, and each paid the rent from time to time. In addition, they must have spent money, at a minimum, on food, clothing and transport. There was also photographic evidence of reasonably frequent attendance at restaurants for family gatherings. Although there was no evidence about the actual level of expenditure on these items it would be unusual if the necessary expenditure was, even for a modest lifestyle, at least hundreds of dollars a week. The conclusion that the only money available to be pooled or spent on day-to-day living expenses was the money, $100 a week, supposedly withheld by the applicant and the wife’s gambling “winnings” flies in the face of other evidence and was highly unlikely to be the case.
Despite what the applicant might have said about the extent of his wife’s gambling – and this was, in my view, less clear than the Tribunal’s characterisation of that evidence – the other undisputed and plausible evidence leads to the inescapable conclusion that there was significant financial “pooling”, albeit from modest incomes. In my view, the sharing of premises for which rent is paid by one or both parties, the sharing of and expense of food in a shared household, and the attendance at restaurants where one or both of the parties presumably contributed to the bill was sharing in common and constituted “pooling”. Having regard to the modest incomes of the parties, this must have involved “pooling” of a significant part of their incomes. In my opinion the Tribunal, in overlooking the full extent of the parties’ sharing, has misunderstood the meaning of “pooling”. This is legal error or, alternatively, a critical factual conclusion without an evident and intelligible basis.
The Tribunal also considered evidence about the joint bank account. The applicant’s wife, as noted, said in her statutory declaration of November 2015 that the couple did not have a joint bank account. The evidence before the Tribunal was that they, in fact, opened a joint bank account in October 2015. The applicant said his wife had closed the joint bank account without reference to him in early 2016. The reasons for this were not in evidence but it may be inferred from the statement in the applicant’s wife’s statutory declaration that “my husband wants to respect my finance” that she, as the primary income earner, preferred to retain control of the money earned by her. The applicant’s statutory declaration from the same time also stated that he did not have a joint account with his wife (this statement appears to be incorrect at the time it was made) and echoed her reasons for that.
The Tribunal took into account the closing of the joint account and, together with its conclusion about the use by the applicant and his wife of their incomes, said the evidence
…does not enable the Tribunal to be satisfied that the parties pooled financial resources, … or shared day to day household expenses to any significant degree.
In my view this conclusion, incorporating the Tribunal’s conclusion that the applicant and his wife did not pool their incomes, also misunderstands the meaning of the phrase “pooling of financial resources” used in the Regulations or overlooks undisputed and critical countervailing evidence and constitutes jurisdictional error.
In considering the social aspects of the relationship the Tribunal focused on evidence from Ms Tran, mentioned above, that the relationship between the applicant and his wife had “soured” in mid-2015. The Tribunal also referred to the fact that Ms Huynh’s children left the household in early 2016. The Tribunal observed that:
…the applicant and sponsor made no plans for any joint responsibility for the care and support of the sponsor’s children from mid-2015.
The Tribunal considered this was evidence of a lack of mutual commitment to a shared life as a married couple. The Tribunal concluded that these matters pointed to the “relationship having broken down from early 2016.”
The Tribunal evidently did not consider it relevant that the applicant and his wife opened a joint account in October 2015, if only for a few months. The opening of a joint account in October 2015 is not consistent, in my view, with any serious difficulties in the relationship in mid-2015. The inference the Tribunal drew from the departure of the children from the household in early 2016 was that this was related to a breakdown in the relationship between the applicant and his wife and the Tribunal identified the time of the departure of the children as the time of the breakdown of the relationship between the applicant and his wife.
The relevance, if any, of the departure of the children from the household is unclear. Ms Doan, the daughter, said in her statement that she left the household to live with her partner. She was evidently an adult at the time. The son’s age was not identified by the Tribunal but I consider it likely, for the reason given above, that he was also an adult at the time of his departure. Ms Doan indicated that she had a good relationship with the applicant. There is nothing in the evidence to indicate that the departure of the children was precipitated by marital disharmony or the ending of the relationship between the applicant and his wife. Further, if the children were adult the time they left the home it is not to be assumed that the applicant and his wife would exercise any joint responsibility for their care and support, if the relationship of the applicant and his wife subsisted.
In considering the nature of the household of the applicant and his wife and the nature of their commitment to each other, the Tribunal paid particular attention to the departure of the children. In my view, the critical finding that the relationship between the applicant and his wife had broken down from early 2016 lacks an evident and intelligible basis.
The applicant’s grounds of review were as follows:
1. It [the Tribunal] incorrectly determined the meaning of “pooling of financial resources”.
Particulars
The Tribunal accepted that the Appellant's income (except for $100 retained by him) of $400 per week was mingled with the sponsor's earnings of $600 per week which she spent at the casino, but the Tribunal implicitly defined pooled financial resources as those involved in day to day household expenses, and in so doing ignored the pooling of the two incomes for what was described as "the sponsor's gambling habit"
2. It found the Applicant's evidence regarding the joint Commonwealth bank account, and regarding the opening of the Applicant's personal ANZ account to be fatally riddled with inconsistencies which findings are not supported by evidence.
Particulars
The Tribunal has conflated and confused the evidence given by the Applicant as to (a) the sponsor not assisting in opening a second joint account (after she had closed the first joint account), with (b) the difficulties that the Applicant faced in opening a personal ANZ account.
3. It made findings of fact in the absence of any supporting evidence.
Particulars
The Tribunal did not accept that the Appellant and the sponsor shared responsibility for housework "in light of the sponsor's preoccupation with gambling activities", when there was no evidence before the Tribunal going to the time that the sponsor spent actually gambling as opposed to being at home.
4. It made findings of inconsistency in the provision of evidence leading to a lack of credit that was based in unreasonable and illogical use of the evidence.
Particulars
The inconsistencies claimed regarding evidence relating to the Vietnamese Women's Association, coupled with the inconsistencies claimed regarding the bank accounts (referred to at [2] above).
5. It made findings against the presence of a necessary mutual commitment by reference, inter alia, to a lack of a plan for joint responsibility for the care and support of the sponsor's children from mid-2015, which findings were made without reference to evidence directly to the contrary, or in defiance of logic.
Particulars
The children referred to (children of the sponsor by a previous relationship) were adults at the relevant time and not in need of care and support. The Tribunal failed to refer to the statement of Song Nhi Doan of 20 March 2019 which explained how household responsibilities were shared between the sponsor and the Applicant.
I have found the Tribunal did not adequately consider the question of the “pooling of financial resources”, whether through a misapprehension of the evidence or a misunderstanding of the meaning of the word in the Regulations. While I am satisfied that the Tribunal has made an error as described it is not the error described in the particulars. If the applicant gave his wife his pay and she used all of that and her own money to gamble that does not constitute “pooling” because it is not for their common benefit. Ground one, as described in the particulars, has no merit. This issue was canvassed in argument in the terms discussed earlier in these reasons and, without objection from the first respondent, the forensic battle moved onto different ground. The first respondent was not disadvantaged. Subject to that qualification ground one is made out.
In relation to ground two, the applicant’s evidence about the joint bank account lacked clarity and was arguably inconsistent. My impression was that this might reflect the difficulties of questioning an unsophisticated witness through an interpreter. However, I am not satisfied that the Tribunal’s adverse assessment of the applicant’s credibility based on this evidence was not open to it. This ground is not made out.
In relation to ground three the Tribunal’s conclusion was based on relatively scant evidence but I am not satisfied that it was not open to it. This ground is not made out.
In relation to ground four, again I suspect that the inconsistent and unclear answers given by the applicant may have reflected difficulties in conducting an interrogation through an interpreter. Nevertheless, I am not satisfied that the Tribunal’s conclusion was not open to it.
I have discussed the basis of the Tribunal’s findings about the departure of the applicant’s wife’s children from the home they shared. For the reasons I have discussed, I am satisfied that the Tribunal’s conclusion about the significance of the departure of the children does not have an evident and intelligible basis. This ground is made out.
There will be orders accordingly. If the parties seek any order other than an order that the Minister pay the applicant’s costs according to the scale fee of $7,467 in the Federal Circuit Court Rules a written submission should be made within seven days.
I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Judge Young
Associate:
Date: 16 November 2020
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