Tuiketei v Minister for Immigration

[2017] FCCA 2324

FEDERAL CIRCUIT COURT OF AUSTRALIA

TUIKETEI v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2324

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Partner (Temporary) (Class UK) visa – the Tribunal made adverse credibility findings that were open before the Tribunal – the Tribunal raised with the applicant the adverse credibility issues and it was a matter for the Tribunal to determine the applicant’s credit  – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5CB, 476

Migration Regulations 1994, 1.09A(3), 2.03A, cl.820.221 of Schedule 2

Applicant: JOJI NAVUMA TUIKETEI

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1170 of 2017

Judgment of: Judge Street

Hearing date: 22 September 2017

Date of Last Submission: 22 September 2017

Delivered at: Sydney

Delivered on: 22 September 2017

REPRESENTATION

The applicant appeared in person.

Solicitors for the Respondents: Mr A Moss
Clayton Utz

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $7,206.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1170 of 2017

JOJI NAVUMA TUIKETEI

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional write under the Court’s jurisdiction under s.476 of the Migration Act1958 (Cth) (“the Migration Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 29 March 2017, affirming a decision of the delegate not to grant the applicant a Partner (Temporary) (Class UK) visa.

2. The applicant is a citizen of Fiji and first arrived in Australia on 23 November 2013 as the holder of a visitor visa (subclass FA 600), which was valid until 11 February 2014. On 5 February 2014, the applicant applied for another visitor visa which was granted on 11 February 2014 and valid until 23 July 2014. On 22 July 2014, the applicant applied for another visitor visa which was granted on 3 July 2014 and valid until 20 November 2014. On 17 November, the applicant applied for a visitor visa that was granted to the applicant on 20 November 2014 and valid until 15 August 2015. 

3. On 31 December 2014, the applicant lodged a Partner (subclass 820/801) visa application. On 7 July 2016, a delegate refused to grant that visa, finding the applicant failed to meet the criteria under cl.820.211 of Schedule 2 to the Migration Regulations 1994 (“the Regulations”) for the grant of a partner visa.

The Tribunal’s decision

1. The applicant applied for review which was received on 18 July 2016. By letter dated 22 February 2017, the applicant was invited to attend a hearing on 29 March 2017. The applicant appeared on that date to give evidence and present arguments. The applicant was represented by his migration review agent at that hearing. 

2. The Tribunal identified the background to the application for review and the applicant’s background. The Tribunal identified that the issue in the present case was whether the applicant was the spouse of the sponsor within the meaning of the Migration Act.

3. The Tribunal identified the requirements of cl.820.221(2)(a) and cl.820.221 Schedule 2 to the Regulations that require that at the time the visa application was made and at the time of the decision, the applicant is the spouse or a de facto partner. The Tribunal identified the definition of de facto partner in s.5CB of the Migration Act, and the requirements of reg.1.09A(3) of the Regulations.

4. In the course of the hearing, the Tribunal raised with the applicant that the relationship with the sponsor sounded more like a migration arrangement than a genuine relationship. The Tribunal also raised discrepancies with the applicant’s evidence, and the applicant advanced that the details had been forgotten. The Tribunal also sought to explore with the applicant when he and his sponsor started living together. The Tribunal put to the applicant that they were important because if the Tribunal came to the view that he was being untruthful about those matters, it may also form a view that he was being untruthful about other matters.

5. The Tribunal found the difference between the applicant’s evidence as to when they began living together orally and the statements made to the Department to be implausible. The Tribunal did not accept that a couple claiming to have committed to a shared life together would forget when they first met and the circumstances under which they met.  The Tribunal formed the view that the parties’ statements to the Department were false and misleading, and found that the time when the parties first met was after the applicant returned to Australia in May 2014.

6. The Tribunal did not accept that the parties decided to live together as man and wife one week after the applicant’s arrival, or indeed that they have ever lived together as man and wife in a spousal relationship. The Tribunal was not satisfied that the parties that the parties have a mutual commitment to each other or that they see their relationship as a long term one. 

7. The Tribunal was not satisfied that the parties’ relationship was a spousal relationship, and found the relationship was contrived solely for the purposes of obtaining a migration outcome for the applicant. The Tribunal did not accept that the bank statements and other documents support a finding that the parties live together in a shared household. 

8. The Tribunal was not satisfied that the financial aspects of the parties’ claimed relationship supports a finding that they are in a genuine, ongoing, and exclusive relationship. 

9. The Tribunal was not satisfied that the parties represented themselves to others as a couple, or that they take care about the opinion of others. The Tribunal found that there was little evidence that they undertake joint social activities.

10. The Tribunal was not satisfied the relationship between the applicant and the sponsor is genuine and continuing, and the Tribunal was not satisfied that they live together. The Tribunal was not satisfied the requirements of s.5CB(2) of the Migration Act and reg.1.09A(3) of the Regulations were met at the time of the application or at the time of the decision. The Tribunal was not satisfied that the parties meet the requirements of reg.2.03A of the Regulations.

11. The Tribunal therefore found the applicant did not meet the criteria under cl.820.211 or cl.820.221 of Schedule 2 to the Regulations and affirmed the decision under review.

Before this Court

1. On 18 May 2017, a registrar of Court made orders providing the applicant with an opportunity to file an amended application, affidavit evidence and submissions.  No such documents were filed.

2. At the commencement of the hearing, the Court explained to the applicant that this was a final hearing to determine whether the Tribunal’s decision was affected by relevant legal error. The Court explained that the relevant legal error had to be either an excess of statutory power or a denial of procedural fairness to the applicant. The Court explained that in summary this meant the Court was considering whether the Tribunal’s decision was unlawful or unfair.

3. The Court explained that if satisfied the Tribunal’s decision was unlawful or unfair, the decision would be set aside and sent back for further hearing. The Court explained that if not satisfied the Tribunal’s decision was unlawful or unfair, the application would be dismissed with costs.

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

The applicant’s submissions from the bar table

1. From the bar table, the applicant maintained that he and the sponsor were living together in a genuine relationship. The Court explained to the applicant that this Court does not have power to review the merits and that the Court cannot make findings of fact in relation to the applicant’s claims. The Court explained that the Court’s powers were limited to considering whether the Tribunal exceeded its statutory power or denied the applicant procedural fairness. The Court explained that it could revisit adverse findings of fact if they were illogical, irrational, or unreasonable. Nothing said by the applicant from the bar table identified any jurisdictional error.

The adjournment application raised from the bar table

1. The applicant then indicated that he wished to seek an adjournment so that he could consider the matter further. These were proceedings commenced on 18 April 2017. Orders were made providing the applicant with an opportunity to put on material. No proper basis for an adjournment was identified. The adjournment was opposed by the first respondent and the Court is not satisfied an adjournment was warranted in the interest of the administration of justice. For these reasons, the adjournment was refused.

2. The grounds in the application are as follows:-

   1. Jurisdictional error and lacked jurisdiction - With reference to the paragraph 43 of the decision of the Tribunal dated 29 March 2017, “On the basis of the above the Tribunal is not satisfied that the requirements of s.5CB(2) or r.1.09A(3) are met at the time of application or at the time of this decision. As the parties were not in a de-facto relationship for 12 months prior to the lodgement of this application and there are no compelling and compassionate circumstances to grant the visa, the Tribunal is not satisfied that the parties meet the requirements of r.2.03A." I have completely satisfied the requirement of s.5CB(2) or r.1.09A(3) at the time of the application and at the time of the decision. I am living with my de facto partner, sharing finances, mutually committed to each other and genuinely living as de facto partners. I have mentioned circumstances of meeting my partner and living arrangement, however, due to old age, short term memory loss my partner has not revealed all the information which the Tribunal has asked from her. Therefore, I consider that the Tribunal has made jurisdictional error and lacked jurisdiction in reaching its decision.

   2. Error in interpretation of legislation - With reference to paragraph 44 of the decision of the Tribunal dated 29 March 2017, “Therefore the applicant does not meet cl.820.211 or c/.820.221. There is no evidence before the Tribunal that the parties meet any of the alternative criteria.” As per my application for partner visa to the department and my hearing at the Tribunal, I completely meet and satisfied cl.820.211 and cl.820.211, however, the Tribunal made error in interpretation of legislation in my case.

   3. Natural Justice - With reference to the paragraph 41 of the decision of the Tribunal dated 29 March 2017, “The Tribunal put to the parties that as they were applying as a de-facto couple, they were required to be in a relationship for 12 months prior to the date of application unless there were any compelling and/or compassionate circumstances for the grant of the visa. The parties have told the Tribunal that their relationship began in May 2014 and the application was lodged only 7 months later in December 2014. The applicant told the Tribunal that he helps the sponsor in her household work." During the Tribunal hearing, the Tribunal member asked me whether there are any compelling or compassionate circumstances for the grant of the visa, I told the member that the sponsor is 76 years old and suffering from different medical conditions. However, the Tribunal has not mentioned those compelling and compassionate circumstances in their decision. According to natural justice the Tribunal must consider medical conditions of my de facto partner as she is 76 years old lady and suffering from different medical conditions and totally dependent on me for her daily needs.

Consideration

Ground 1

1. Ground 1 in substance reflects a disagreement with the adverse findings by the Tribunal and does not identify any jurisdictional error by the Tribunal. The Tribunal made adverse credibility findings that were open before the Tribunal. No jurisdictional error is made out by ground 1. 

Ground 2

1. In relation to ground 2, the Tribunal correctly identified the relevant law. There is no substance in the contention that there was an error in the interpretation of the legislation. No such error is identified on the reasons of the Tribunal. On the face of the material before the Court, the Tribunal complied with its statutory obligations in the conduct of the review. On the face of the material before the Court, the Tribunal complied with its requirements of procedural fairness in the conduct of the review.  No jurisdictional error is made out by ground 2. 

Ground 3

1. In relation to ground 3, on the face of the material before the Court, the applicant had a real and meaningful hearing before the Tribunal. The Tribunal raised with the applicant the adverse credibility issues and it was a matter for the Tribunal to determine the applicant’s credit. There was no denial of procedural fairness as alleged in ground 3.

2. In relation to that part of ground 3 that refers to the age and infirmness of the sponsor, it was for the applicant to make out the requirements of the visa. The Tribunal was not required to call evidence, and it was a matter for the Tribunal to evaluate the applicant and sponsor’s credit.   It is also apparent that the Tribunal was well aware of the sponsor’s age. No material was put forward before the Tribunal to identify that the sponsor was suffering short term memory loss or any other psychiatric condition. No jurisdictional error as alleged in ground 3 is made out.

Conclusion

1. Accordingly, the application is dismissed.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  28 September 2017