Unprasoet v Minister for Immigration
[2019] FCCA 2209
•14 August 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| UNPRASOET v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 2209 |
| Catchwords: MIGRATION – Application for review of Administrative Appeals Tribunal decision – whether the Tribunal failed to give proper regard to certain evidence in support of the applicant’s claims – whether the Tribunal failed to give proper regard to the applicant’s claim that she suffered family violence during her relationship with the sponsoring spouse when determining whether the relationship was genuine – whether the Tribunal misinterpreted or misapplied the law to the facts – whether the Tribunal’s finding was unreasonable – no jurisdictional error revealed – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5F, 375A, 438, 476 Migration Regulations 2004 (Cth), reg.1.15A, sch2 cl.801.221 |
| Cases cited: SZMTA v Minister for Immigration and Border Protection [2017] FCA 1055; | ||
| Applicant: | MALINEE UNPRASOET | |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1025 of 2016 |
| Judgment of: | Judge Nicholls |
| Hearing dates: | 16 April 2018, 8 November 2018 |
| Date of Last Submission: | 16 July 2019 |
| Delivered at: | Sydney |
| Delivered on: | 14 August 2019 |
REPRESENTATION
| Representative for the Applicant: | Mr N. Dobbie |
| Solicitors for the Applicant: | Dobbie and Devine Immigration Lawyers Pty Ltd |
| Counsel for the Respondents: | Mr P.M. Knowles |
| Solicitors for the Respondents: | Mills Oakley Lawyers |
ORDERS
The application made on 28 April 2016 and further amended on 16 April 2018 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $6500.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1025 of 2016
| MALINEE UNPRASOET |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 28 April 2016, and ultimately further amended on 16 April 2018, seeking review of the decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 11 April 2016 which affirmed the decision of the Minister’s delegate (“the delegate”) not to grant a partner (residence) visa to Ms Unprasoet (“the applicant”).
The evidence before the Court is:
1. The Court Book (“CB”). This was filed and tendered by the Minister (“RE1”).
2. The affidavit of Ma Rosario Xiella Devine, solicitor, made on 6 January 2017, annexing a copy of a transcript of the hearing before the Tribunal.
3. The affidavit of Ada Qi-Yee Wong, solicitor, made on 10 January 2018, with exhibits.
Background
The applicant’s written submissions contain a comprehensive background to this matter which is a fair summary of the relevant matters set out in the Court Book:
“3. The Applicant is a citizen of Thailand. (CB25) On 1 June 2012, the Applicant also lodged an application for a Class TO, subclass 300, visa. On 27 September 2012, that visa was granted.
4. On 13 June 2013, she lodged an application for a Class UK, subclass 820, visa and for a Class BS, subclass 801, visa. (CB1-57) She was sponsored by Mr Nikolas Baker. (CB45-55; CB 69) on 21 June 2013, a delegate of the Minister granted the Applicant a Class UK, subclass 820, visa. (CB70-73)
5. On 16 March 2014, the Applicant notified the Department of Immigration and Border Protection (now the Department of Home Affairs) (‘the Department’) that her relationship status with her sponsor had changed, that she notified Centrelink that she wanted to separate from her sponsor and that she moved out of ‘Kerang town’ as she felt unsafe. She also stated that her previous employer at the Happy Elephant Thai Restaurant also felt unsafe so they ceased employing her. (CB74)
6. On 27 March 2014, the Applicant alleged that she had suffered family violence from her sponsor. (CB75-83) The Applicant provided a copy of an Application for an Intervention Order, in which violence to her person and property is alleged to have been inflicted on her by her sponsor. (CB80) In a statement dated 5 April 2014, she also set out similar allegations, and she informed the Department on 14 March ‘what was happening’, by telephone, and that the sponsor’s sister also informed the Department about her brother’s conduct. (CB82)
7. On 17 March 2014, the sponsor emailed the Department and notified that he and the Applicant ‘have split up’. (CB95)
8. On 3 May 2014, the Applicant emailed her statutory declaration (Form 1410) to the Department, setting out her family violence claims. (CB97-103) She declared that she considered her relationship with her sponsor to be over on 12 March 2014, when her husband forced her to leave and she moved out of their residence due to concerns for her safety. (CB101 at q4) The Applicant also provided a statement witnessed by a constable Rowan Epstein, dated 18 march 2014, in Kerang. (CB105)
9. On 9 May 2014, the Applicant gave the Department a letter from Mallee Domestic Violence Services, signed by a registered social worker. In the letter, the social worker confirmed the support that the unit gave to her, and confirmed the Applicant had been granted a full intervention order for family violence. (CB 107) The intervention Order was made on 3 April 2014. (CB110-115)
10. The court book contains an article on systemic lupus erythematosus. (CB119-122) It also contains a letter, dated 12 March, with a signoff of MAL. (CB123)
11. By way of a letter dated 24 June 2014, the Applicant was given a procedural fairness letter. That letter set out that the Applicant had not declared her spousal relationship to her son or her family members, and that there was a letter from her, dated 12 March 2014, stating that she did not want to leave the sponsor and that she wanted to reconcile with him. The delegate requested evidence of the relationship being genuine from the date of marriage to the cessation of the relationship. (CB124-127)
12. On 4 July 2014, the Applicant responded to the procedural fairness letter, providing evidence of the relationship being genuine. (CB128-143; CB144-148)
13. On 27 February 2015, a delegate of the First Respondent refused the subclass 801 visa application. (CB149-172) The delegate opined that she had to determine
‘…if you were the spouse or de facto partner of the sponsor prior to 12 March 2014, when you stated on Form 1010 that your relationship with your sponsor ended due to family violence.’ (CB154)
14. The delegate did not find that the relationship was contrived. Rather, the delegate concluded:
‘I am not satisfied that you were the spouse or de facto partner of the sponsor prior to the relationship ceasing.’ (CB 156)
15. On 2 March 2015, the Applicant sought review of the delegate’s decision at the Migration Review Tribunal (‘the Tribunal’). The delegate’s decision was given to the Tribunal when the review was made. (CB171-172)
16. On 10 February 2016, the Tribunal granted partial access to the Applicant under s362A of the Act. (CB185-187) The Tribunal noted folios exempt from the s362A request, including noting certain folios were subject to a s375A certificate. (CB186)
17. On 31 March 2016, the Applicant sent supporting documents to the Tribunal. (CB197-242)
18. On 5 April 2016, the Applicant appeared before the Tribunal for a hearing. (CB243-245) At the hearing, a record of exchanges between ‘Mal’ and ‘Jeepers Creepers’ was provided. (CB247-249)
19. On 11 April 2016, the Tribunal affirmed the delegate’s decision. (CB253-259)
20. The Tribunal stated in its decision at [6]
‘6. The Tribunal has taken into consideration all the evidence in the department’s files CLF2014/57571, folios numbered 1-219 and the Tribunal file 1503028, folios numbered 1-72 and the evidence at the Tribunal hearing.’
(CB254 at [6])
21. The Tribunal ultimately concluded that the Applicant and the sponsor were never in a spousal relationship, and therefore found that it did not need to consider the Applicant’s claims of family violence. (CB259 at [34])”.
The Application to the Court
The grounds of the further amended application pressed at the commencement of the hearing were as follows:
“2. The Tribunal constructively failed to exercise its jurisdiction and or failed to accord the Applicant procedural fairness
Particulars:
(A) The Tribunal constructively failed to exercise its jurisdiction and or failed to accord the Applicant procedural fairness because:
(i) The Tribunal acted on an invalid certificate purportedly issued pursuant to s375A of the Act (‘the certificate’), thereby following a process contrary to law.
(ii) The Tribunal failed to accord the Applicant procedural fairness:
(a) by failing to disclose the existence of the certificate to the Applicant; and or
(b) by failing to give the Applicant the opportunity to make submissions on the validity of the certificate if she so chose; and or
(c) by failing to disclose to what extent, if any, the Tribunal was going to take into account information covered by the certificate and as a part thereof at least whether the information was favourable, unfavourable or neutral to the Applicant
5. The Tribunal failed to discharge its core function to review the decision
Particulars:
(i) The Tribunal failed to discharge its core function to review the delegate’s decision because it did not have proper regard to the numerous letters of support that the relationship between the Applicant and sponsoring spouse was genuine.
(ia) The Tribunal failed to discharge its core function to review the delegate’s decision because it did not have proper regard to the claim made by the Applicant that she suffered family violence during her relationship with her sponsoring spouse, when determining whether the claimed relationship was genuine.
6. The Tribunal misinterpreted the applicable law and or misapplied the law to the facts
Particulars:
(i) The Tribunal misinterpreted the applicable law and or misapplied the law to the facts because it required the families of the Applicant and the sponsoring spouse to provide supporting statements, when there was no such requirement in law.
(ii) The Tribunal misinterpreted the applicable law and or misapplied the law to the facts because it required that there had to be broad-based public recognition of the relationship between the Applicant and the sponsoring spouse, when there was no such requirement in law.
7. The decision of the Tribunal is unreasonable
Particulars:
(i) The Tribunal’s finding that the Applicant and the sponsoring spouse were never in a spousal relationship was unreasonable on the evidence before it.”
[Underlining removed.]
As is evident ground two concerned a certificate said to have been issued pursuant to s.375A of the Act. During the hearing of this matter the parties proposed, and the Court agreed, that given that the High Court had at that time granted special leave in SZMTAv Minister for Immigration and Border Protection [2017] FCA 1055 a matter involving a s.438 certificate that the Court await the High Court’s judgment before considering ground two.
Subsequently, given the High Court’s relevant judgment (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, on 8 July 2019 the applicant advised that she no longer pressed ground two of the further amended application.
Consideration: Ground Five
Ground five asserts that the Tribunal failed to discharge its core function to review the decision. Two matters are proposed as particulars to the ground.
One, the Tribunal did not have regard to numerous letters of support that the relationship between the applicant and her sponsor for the visa was genuine.
Two, when considering whether the relationship was genuine the Tribunal did not have regard to the applicant’s claim that she suffered family violence during the relationship.
The Tribunal identified two issues in this review in consideration of whether the visa must be granted:
“7. The issue in the present case is whether Ms Unprasoet was the spouse of Mr Baker as defined in s.5F of the Act and if so, whether family violence has taken place.”
Section 5F of the Act as at the relevant time set out the definition of spouse for the purposes of the Act:
“(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 a 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.”
The relevant regulation was reg.1.15A of the Migration Regulations 1994 (Cth) (“the regulations”) which was in the following terms:
“(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).”
The applicant relied on Sun v Minister for Immigration and Border Protection [2017] FCA 1270 (“Sun”), particularly at [61], [68]–[69], for the following proposition. Given reg.1.15A(2) the Tribunal must consider all of the pertinent circumstances of the relationship that need to be considered in considering whether the claimed relationship is a married relationship by reference to the matters set out in reg.1.15A(3), and any other matters that are presented by the application before it.
The applicant’s argument was in relation to the supporting statements, that there was little, if any, indication in the Tribunal’s statement of reasons, that it considered all of the circumstances of the applicant’s married relationship which included the supporting statements. That is, in considering the nature of the relationship (as it was required to do) the Tribunal failed to consider certain evidence.
To make good that argument the applicant referred to 13 statements that had been made in support by various persons about the relationship. (See CB 225–CB 238).
The applicant’s submission, in relation to particulars (i) and (ia), was that the Tribunal referred to the supporting statements, but this was not sufficient to discharge the obligation imposed by reg.1.15A(2).
In relation to particular (ia) the complaint is that in considering the question of whether the spousal relationship was genuine, the Tribunal did not have proper regard to the claim made by the applicant that she suffered from family violence in her relationship with the sponsor.
There was no dispute that the relationship with the sponsor had broken down. Therefore, the issue before the Tribunal centred around whether the applicant was entitled to the visa on the basis of having suffered family violence during the duration of the relationship.
Given the applicant’s submissions it is necessary to note, as the Minister submitted, that Sun does not require the Tribunal to consider every piece of evidence put in support of the claimed spousal relationship.
What reg.1.15A(2) requires is that each of the elements of reg.1.15A(3) must be taken into account in determining whether there is a spousal relationship as set out at s.5F of the Act. In short these are mandatory considerations, which require the Tribunal to make findings as against each of these where there is evidence before it to enable it to do so.
As the applicant acknowledged in her submissions before the Court the Tribunal did make reference to the letters of support ([29] at CB 258). The applicant’s argument, relying on Sun, was that in spite of this reference, the Tribunal did not actually consider or give proper consideration to the letters as was found to be necessary in Sun (and with reference to Li v Minister for Immigration & Citizenship (2008) 102 ALD 354 at [24]–[25]).
This then directs attention to what the Tribunal in the current case has actually done.
The Tribunal set out its understanding of the relevant law in what can be described as being unexceptional terms in relation to the questions of whether the applicant and her sponsor were in a spousal relationship, and whether they were validly married (See [22]–[27]).
Of particular relevance is [26] and [27] at CB 258:
“26. In forming an opinion as to these matters, regard must be had to all of the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the parties’ household and their commitment to each other as set out in r.1.15A(3), which is extracted in the attachment to this decision.
27. The Tribunal has had regard to the parties’ financial aspects of their relationship; the nature of their household; the social aspects of the relationship; and the nature of their commitment to each other. On these aspects the Tribunal has considered the evidence before it and is satisfied the facts of this case are as follows:”.
In this light the Tribunal found, after examining the evidence before it, that there was “no probative evidence in support of the parties combining their financial matters” ([28]). The applicant does not now impugn this finding in relation to ground five.
At [29] the Tribunal considered the applicant’s evidence in relation to the nature of the household and social aspects of the relationship. This included her evidence that the parties did not socialise or go out together to lunches or dinners. Nor did they exchange gifts on birthdays, anniversaries, Christmas or New Year. As set out above the reference to the letters of support is made in this paragraph.
What is important to note in the Tribunal’s reasoning here is that although there were letters in support going to the question of a genuine relationship, none of the letters were “statements from family members about the parties’ relationship or that the parties presented themselves to family members as being spousal partners” ([29]).
The Tribunal also considered other evidence before it that the applicant’s family were initially unaware of the parties’ marriage, only becoming aware of it just before they separated. The Tribunal considered the applicant’s explanation for this.
At [31] the Tribunal set out its consideration of this “evidence individually and as a whole”:
“31…Mr Baker provided evidence that he was pestered by Ms Unprasoet into marriage. Both parties provide evidence that Mr Baker wanted Ms Unprasoet to return to Thailand. Ms Unprasoet claimed this was because of a reduction in Mr Baker’s disability pension and because of money. Other evidence is that Ms Unprasoet said she would return to Thailand if she received an amount of money from Mr Baker. There are no statements from the parties’ families as to how they viewed the parties’ relationship or about how the parties shared their lives. Pictorial evidence is limited as is evidence about the parties attending social events or family celebrations. There is no evidence before the Tribunal how the parties provided companionship or emotional support to each other or had a mutual commitment to a shared life together.”
This then led to the finding that:
“32. In view of all the above, the Tribunal is not satisfied that there was broad-based public recognition of the parties’ relationship. The Tribunal is not satisfied by the evidence that the parties were in a genuine and continuing spousal relationship. The Tribunal does not accept that the evidence supports that the parties had a mutual commitment to a shared life as spousal partners to the exclusion of all others.”
Tribunal decisions are meant to be read fairly and wholistically (Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6). The Tribunal did consider the statements in support. It plainly acknowledged that the statements did provide evidence that the parties were in a genuine relationship. That is, the Tribunal accepted that the letters supported the central proposition for which they had been submitted to it.
However, the Tribunal also had regard to other evidence before it. It simply found that, in effect, notwithstanding what the letters stated, there were many other reasons that outweighed the statements, and supported its conclusion that the evidence, as a whole, did not support the proposition that the parties were in a genuine and continuing spousal relationship.
It is trite to say that the Tribunal’s task is to properly evaluate the claims made to it, and the evidence in support of these claims. The Tribunals acceptance that the letters of support did support the claim that the applicant and her sponsor were in a genuine relationship is a finding that reveals the Tribunal did consider the letters of support.
Ultimately the applicant’s submission was that the Tribunal did not engage with the “contents” of the letters. The applicant sought to draw support for this from the last sentence at [31], and how that is to be read with the first sentence at [32].
The last sentence at [31] is:
“There is no evidence before the Tribunal how the parties provided companionship or emotional support to each other or had a mutual commitment to a shared life together.”
The first sentence at [32] is:
“In view of all the above, the Tribunal is not satisfied that there was broad-based public recognition of the parties’ relationship.”
I agree with the Minister’s submission in reply that the Tribunal, at the last sentence of [31] was addressing a different aspect, or element, of reg.1.15A(3), to that addressed at [32] and [29].
At [31] the Tribunal, as it stated, was focused on “companionship or emotional support to each other”. This arises from reg.1.15A(3)(d)(iii). At [32] the Tribunal expressed its conclusion as to the “broad-based public recognition of the parties’ relationship”. A matter which arises from reg.1.15A(3)(c)(ii).
As set out above the Tribunal’s obligation is to take into account each of the elements in reg.1.15A(3) and to make findings in relation to the “pertinent” aspects of the relationship. There is nothing in the regulation to require the Tribunal to set out its consideration and findings in some checklist or “tick a box” format. Rather what is required is an evaluative analysis, having regard to all of the mandatory elements in reg.1.15A(3), in the circumstances of the relationship as presented to it.
On the evidence before the Court that is what the Tribunal did. The Tribunal did not make any adverse finding in relation to the letters of support or their contents.
When fairly read the Tribunal’s decision reveals that it accepted the contents of the letters for what they were. However, it noted that these were not statements from family members, and that family members did not provide any letters of support.
In this light the Tribunal also considered other pertinent matters as arising from the circumstances presented, and with regard to the matters at reg.1.15A(3). Ultimately, in the balance of its consideration, the Tribunal was not satisfied by all of the evidence, and in light of its view of it, that the parties were in a genuine spousal relationship. All of the Tribunal’s findings were reasonably open to it on what was before it.
This is precisely the type of evaluation of the evidence that the Tribunal is obliged to conduct. The applicant may not agree with the Tribunal’s reasoning, but that does not reveal legal error.
In all, this aspect of ground five does not succeed.
As set out above ground five also asserts that the Tribunal did not have proper regard to the applicant’s claim that she suffered family violence during the course of the spousal relationship.
What the applicant has failed to appreciate with this particular to ground five is that the grant of the visa for which she applied requires any alleged family violence to have occurred when the parties were in a genuine and ongoing spousal relationship (see cl.801.221(6)(b) and (c)(A)).
On the evidence before the Tribunal, provided by the applicant, she claimed that the relationship with the visa sponsor commenced on 15 November 2010, and that they were married on 15 February 2013. (See CB 41, and [11] at CB 254). Her evidence was that the family violence commenced on 4 February 2014 and ended on 12 March 2014 (see her declaration at CB 101).
As set out above the Tribunal found, for reasons given, that the parties were not in a genuine and continuing spousal relationship ([32], [34] CB 259). In context, and when fairly read, the Tribunal’s finding was that they were never in such a relationship.
The Tribunal made no finding in relation to family violence. The Minister did not dispute this. There may be an argument to say that given that the applicant sought to rely on the family violence criterion for the grant of the visa (cl.801.221(6)(b) and (c)(A)) that the Tribunal should have made reference to it.
For example, notwithstanding the finding that the parties were not and never had been in a genuine spousal relationship for the purposes of s.5F of the Act, the Tribunal could have proceeded to state that in that light it was not necessary to consider that criterion.
That is precisely the approach taken by the delegate:
“I note that you claim to have been the victim of family violence. However, I have not assessed your family violence claims as I am required to first consider if you were the spouse or de facto partner of the sponsor (as defined under sections 5F and 5CB of the Act, respectively) prior to the relationship ceasing.
As I am not satisfied that you were the spouse or de facto partner of the sponsor for the reasons detailed above, I find that you do not meet subclause 801.221(6)(b) of the Regulations. Consequently, I am therefore not required to consider your family violence claims further.”
However, the failure to do so does not in the circumstances reveal jurisdictional error. This is because the absence of any such statement, or finding, of itself, does not detract from the efficacy, or lawfulness, of the finding that the parties were not in the requisite, or in context, pre-requisite, state of spousal relationship. Therefore, the absence of any finding in relation to the alleged family violence cannot affect the outcome expressed in the Tribunal’s ultimate conclusion.
In all ground five is not made out.
Consideration: Ground Six
Ground six asserts that the Tribunal misinterpreted and misapplied the law to the facts. There are two particulars to this ground. One, that the Tribunal erred in requiring the families of the applicant and the visa sponsor to provide supporting statements. Two, that it erred in requiring that there be “broad-based” public recognition of the relationship. The applicant now claims there is no requirement in law for either of these.
It must be said that beyond expression of the above, the applicant did not satisfactorily explain how these assertions led to jurisdictional error in the current case. This may be because the applicant’s ground itself relies on a misinterpretation or misunderstanding of the Tribunal’s reasoning.
As set out above, the Tribunal did reason, in part with reference to those two matters. However, simply because the Tribunal made reference to these two matters in its reasoning does not of itself reveal jurisdictional error.
There is nothing in the Tribunal’s decision to say, or for that matter indicate, that there was a mandatory requirement that the parties provide such evidence before the visa could be granted. That is, that such requirements are mandatory conditions in each and every case before the visa could be granted.
What was required of the Tribunal in this case was to consider the evidence before it, in light of the relevant statutory and regulatory requirements and either reach, or not reach, the requisite level of satisfaction such that the visa must be granted.
As set out above the key question in the disposition of the application before the Tribunal was whether the applicant and her sponsor had been in a genuine and continuing spousal relationship for the purposes of s.5F of the Act.
The applicant would have been aware following the delegate’s decision that the critical issue in her case was whether she and the sponsor had entered into a genuine and ongoing spousal relationship (see the delegate’s decision at CB 156.8).
As part of this the applicant would also have been aware that the lack of knowledge of the relationship, let alone support, by family members was a “significant” matter (CB 156.7).
In any event it is for an applicant to provide sufficient evidence to the Tribunal, such that the Tribunal may be satisfied as to the relevant criteria for the grant of the visa.
In the current case the applicant provided her evidence. The Tribunal plainly understood that the critical question for it, in light of the evidence before it, was whether there existed a “genuine and continuing” relationship having regard to the matters set out at reg.1.15A(3) (see [23] at CB 257).
As the Minister submitted the Tribunal did not reason, or state, that the application failed because there was a regulatory requirement that the applicant provide evidence from her family or the sponsor’s family, or that there must be a broad-based public recognition of the relationship.
Rather, in evaluating the evidence that was before it, the Tribunal found that what, in essence, detracted from the weight to be accorded to the friends’ statements of support, was the absence of statements from the parties’ families.
The relevance of the absence of such family statements to the Tribunal’s reasoning was not that the applicant had failed to comply with some mandatory regulatory requirement (applicable to all cases), but rather that in the circumstances of this case lesser weight was to be accorded to the letters of support, in part because they were not from family members who would be expected to be able to attest to the very same matters which were the subject of the friends’ letters.
This was a part of the Tribunal’s reasoning that the family members based on other evidence, were unaware of the parties marriage for a considerable part of the claimed relationship ([30] at CB 258).
After all how the parties represented themselves “to other people” was a mandatory consideration for the Tribunal to consider (reg.1.15A(3)(c)(i)). The Tribunal’s view (as was the delegate’s) as to how they represented themselves to family members (being “other people”) was entirely appropriate, and arose from the circumstances presented.
At [32] the Tribunal did make reference to the “broad-based public recognition of the parties’ relationship”. In her submissions before the Court the applicant’s explanation of the ground was that it did not matter how many people knew of the relationship. The example was given that it may be that all that is required is the two parties and two witnesses at the wedding ceremony. To require that such recognition be broad-based, as the Tribunal did, was to extend the relevant “legal test” beyond what is set out at reg.1.15A(3).
What the applicant’s submissions did not engage with, let alone satisfactorily explain, was the extent of reg.1.15A(3)(c). This requirement is focused on “the social aspects of the relationship”. As is made clear at (i), (ii) and (iii) this involves the question as to whether the parties “represent themselves to other people as being married to each other”, the “opinions of the persons’ friends and acquaintances about the nature of the relationship”, and the basis on which the parties “plan and undertake joint social activities”.
The word “social” as it appears in reg.1.15(3)(c) when given its ordinary dictionary meaning includes the concept of living in “companies or communities”, the “companionship of others”, and the friendly engagement “in company with others” or “consisting of people associated together for friendly interaction and companionship”.[1]
[1] Oxford University Press, Shorter Oxford English Dictionary: On Historical Principles (Oxford University Press, 6th ed, 2007) 2903.
What the Tribunal sought to express at [32] (CB 259) was that based on the evidence it could not be satisfied that the parties engaged together in such events. That is, it could not be satisfied as to the extent of the recognition of the applicant’s relationship beyond the letters of support from third parties, which did not include family members, and when viewed in light of the other limited evidence before the Tribunal as to, for example, the parties attending social events or family celebrations. No legal error is revealed here.
In all ground six is not made out.
Consideration: Ground Seven
Ground seven asserts that the Tribunal’s finding that the parties were never in a spousal relationship was unreasonable in light of the evidence before it.
The submissions before the Court relied on the Tribunal’s findings concerning broad-based public recognition, and the letters of support as referred to above.
In her submissions to the Court the applicant sought to review and rely on the same aspects of the contents of the letters of support, and the nature of the persons providing them (for example the mayor who attended the wedding).
I understood the submission to assert that the Tribunal failed to actively engage with the contents of the letters, and that in light of the content it was unreasonable of the Tribunal to find there was no broad-based recognition of the parties relationship.
The applicant’s ground does not reveal jurisdictional error.
First, there is no doubt that legal reasonableness is essential in Tribunal decisions (see Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 (“SZVFW”) at [4], [80] and [89], Minister for Immigration and Citizenship v Li [2013] HCA 18 (“Li-HCA”) at [26], [29], [63] and [88], Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11 (“Stretton”) at [4], [53]).
Second, the applicant’s submissions it must be said, rely on a simple formula. That is, there were a number of letters of support, the Tribunal did not engage with these, this means it’s finding (which informed its decision) that there was no broad-based public recognition of the relationship, was legally unreasonable.
The assessment and consideration of legal unreasonableness in an administrative decision requires a far more nuanced consideration of the relevant question than that posed by the applicant now (Stretton at [2], [10], [62]).
Third, it follows, the determination of legal unreasonableness requires attention to all of the evidence before the Court and before the Tribunal and how the Tribunal dealt with it (SZVFW at [84]).
Fourth, cases of legal unreasonableness are likely to be rare (Li-HCA at [113] per Gageler J).
Fifth, given that the consideration of legal unreasonableness is dependent on the facts of each case, a “simple” comparison with other cases, even an apparently comparable case, is not sufficient to properly discharge the obligation on the Court to consider a claim of legal unreasonableness (see Stretton at [7]).
In his submissions before the Court the Minister stated that the applicant relied on DAO16v Minister for Immigration and Border Protection [2018] FCAFC 2 (“DAO16”) in support of this ground. His submissions then sought to distinguish this case from the circumstances in the current case.
The difficulty here is that I could not see where the applicant in this case made any reference to DAO16, let alone specifically to rely upon it. That reference first emerged from the Minister’s own written submissions (see the respondent’s submissions at [29]).
In any event, even taking into account the caution expressed in [84] above, DAO16 does not assist in the current case. In that case the Tribunal disbelieved the applicant, and found adversely to his credit, in relation to whether he was homosexual, which was the basis for his feared harm if he were to return to his home country. The Tribunal made a number of unwarranted assumptions in that case in spite of the evidence of a number of other persons who supported the applicant’s claim (see DAO16 at [45], and BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94). In the current case the applicant did not satisfactorily address what unwarranted assumptions were made by the Tribunal.
Sixth, the applicant’s ground seven, as set out above, relies on the particulars referred to in ground six (i). In her arguments before the Court it also became apparent that the applicant sought to recast the arguments, particularly as they related to the letters of support, as expressed in relation to ground five, in terms of legal unreasonableness.
It is not necessary to repeat all of what is set out above in relation to ground five. It applies equally in relation to ground seven.
In particular, and contrary to such cases as DAO16, the Tribunal did not disbelieve the applicant’s claim to have been in a genuine and ongoing spousal relationship with the visa sponsor on the basis of ignoring or failing to properly engage in an intellectual sense with probative evidence to the contrary.
Rather as set out above, the Tribunal noted and accepted that the letters of support had been provided. It did not dispute the contents of those letters, or make any finding that any of them lacked credit. The Tribunal however, as set out above, gave reasons for, in effect, placing lesser weight on the letters as against other evidence before it. In that light the Tribunal did engage with the letters with the requisite active intellectual engagement.
Ultimately ground seven is an attempt by the applicant to cavil with the Tribunal’s assignment of lesser weight to the letters. This plainly was a matter for the Tribunal in the proper exercise of its statutory and regulatory function. As the Minister submitted the Tribunal was not required to come to the same conclusion as the authors of the letters as to whether a spousal relationship in the requisite sense existed.
The applicant’s disagreement with the Tribunal’s reasoning and findings in this way does not reveal jurisdictional error. Ground seven is not made out.
Conclusion
None of the remaining grounds of the application reveal jurisdictional error. Therefore, it is appropriate to dismiss the application as further amended. I will make the appropriate order.
I certify that the preceding ninety-four (94) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Associate:
Date: 14 August 2019
Key Legal Topics
Areas of Law
-
Administrative Law
-
Immigration
Legal Concepts
-
Judicial Review
-
Natural Justice
-
Procedural Fairness
-
Statutory Construction
-
Appeal
0
7
3