Virdi v Minister for Immigration
[2014] FCCA 2559
•11 November 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| VIRDI v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 2559 |
| Catchwords: MIGRATION – Partner (Temporary) (Class UK) visa – whether Tribunal asked wrong question – whether Tribunal complied with obligation under s.359A to give clear particulars of information – whether exception in s.359A(4) applied – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.359A, 359AA, 379A Migration Regulations1994, cl.820.211(2)(a), r.1.15A(2) and (3), r.1.15A(3)(a) and (c), r1.15A(3)(a)(iii) and (iv), Schedule 2 part 820, cl.820.221(3)(b)(i), sub-regulation(3)(a)(iii),(iv) and (v), sub-regulation(3)(c)(i) and (iii) |
| Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 Aung v Minister for Immigration and Multicultural Affairs [2000] FCA 1562 Ally v Minister for Immigration and Citizenship [2008] FCAFC 49 Selvadurai v Minister for Immigration and Ethnic Affairs & Anor (1994) 34 ALD 347 Re Minister for Immigration and Multicultural Affairs; Ex parte v Durairajasingham (2008) 168 ALR 407 Chen Xin He v Minister of Immigration and ethnic Affairs [1995]FCA 1682 Tefonu Pty Ltd v Insurance & Superannuation Commissioner (1993) 44 FCR 361 Minister for Immigration & Citizenship v Applicant A125 of 2003 [2007] FCAFC Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 SAAP v Minister for Immigration and Multicultural Affairs and Indigenous Affairs [2005] HCA 24 SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46 SZNKO v Minister for Immigration and Citizenship [2010] FCA 297 Minister for Immigration and Citizenship v Chamnam Yu [2008] FCA 241 VAF v Minister for Immigration & Multicultural Affairs and Indigenous Affairs [2004] FCAFC SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 Sandhu v Minister for Immigration and Multicultural Affairs & Citizenship [2013] FCA 842 |
| Applicant: | GURPREET SINGH VIRDI |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 13 of 2014 |
| Judgment of: | Judge Jones |
| Hearing date: | 5 August 2014 |
| Date of Last Submission: | 5 August 2014 |
| Delivered at: | Melbourne |
| Delivered on: | 11 November 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr Mosley |
| Solicitors for the Applicant: | Melbourne International Lawyers |
| Counsel for the Respondent: | Mr Brown |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application filed on 3 January 2014 be dismissed.
The applicant pay the respondent’s costs in the amount of $6,464.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 13 of 2014
| GURPREET SINGH VIRDI |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
INTRODUCTION
This is an application for judicial review of a decision made by the Migration Review Tribunal (“Tribunal”) affirming a decision of a delegate of the Minister for Immigration and Border Protection (“Minister”) refusing to grant the applicant a Partner (Temporary) (Class UK) visa (“the visa”).
The applicant applied to this Court for judicial review of the Tribunal’s decision on 3 January 2014.
Background and Proceedings
The applicant is a citizen of India, who arrived in Australia on 4 December 2008, as the holder of a subclass 572 student visa.
On 2 April 2012, the applicant married Ayshah Allouche an Australian citizen (“the sponsor”) (CB50).
On 30 April 2012, the Applicant made a combined application for a UK partner (Temporary) and BS Partner (Residence) visa, on the grounds of being in a spousal relationship with the sponsor, who lodged a form of sponsorship in support of the application (CB 12-61). The applicant provided various documents in support of the application (CB 101-131).
On 4 July 2012, the sponsor withdrew her sponsorship in writing (CB 69).
On 23 August 2012, the sponsor requested in writing to the Department that her sponsorship be reinstated (CB 70).
By letter dated 8 October 2012, the sponsor again withdrew her sponsorship (CB 132).
On 9 October 2012, the sponsor was interviewed by an officer of the first respondent’s department (“the Department”).
On 10 October 2012, the Department advised the applicant of the withdrawal of the sponsorship and invited comment (CB 133-136).
On 25 October 2012, the applicant’s agent advised the Department that the applicant had separated from the sponsor and requested in writing that the application be considered under the family violence provisions (CB 139).
On 28 November 2012, a delegate of the first respondent refused the application (CB 143-150).
On 3 January 2012, the applicant applied to the Migration Review Tribunal (“the Tribunal”) for review of the delegate’s decision (CB 151-157).
The applicant’s agent provided a submission and further documentation to the Tribunal (CB 163-289).
Grounds for Judicial Review
The grounds for judicial review set out in the applicant’s Amended Application filed 11 June 2014 are:
1.The making of the decision by the second respondent was an improper exercise of power conferred by the Migration Act 1958, pursuant to which it was purported to be made. The second respondent failed to address the correct legal question being whether the applicant was the spouse of his sponsor, as required by cl. 820.211(2)(a) of Schedule 2 of the Migration Regulations 1994 (“the Regulations”) and as defined by Section 5F of the Act and r.1.15A(2) and (3) of the Regulations. The second respondent asked a wrong question and ignored relevant material and thereby misunderstood and/or failed to correctly apply the law.
Particulars
i.The second respondent treated the sponsor’s assertion that her alleged marriage to the applicant was contrived as determinative of the question of whether he was her spouse, rather than considering all the circumstances of the relationship. Further and/or alternatively, the second respondent treated the decision of the delegate of the first respondent as being determinative of that question.
ii.The second respondent failed to consider all the circumstances of the applicant’s relationship to his sponsor in addressing the question of whether he was his sponsor’s spouse as required by r.1.15A (2) and (3) of the Regulations, by reference to all the evidence and material before it, but instead determined the question adversely to the applicant by reference to a lack of “objective evidence”.
iii.The second respondent failed to consider all the circumstances of the relationship, by ignoring relevant material or failing to take into account relevant material being evidence relevant to all the circumstances of the relationship, including the matters set out in sub-regulation (3).
iv.The second respondent failed to have regard to all the circumstances set forth in r.1.15A(3)(a) and (c), by failing to have regard to or consider the applicant’s claim that he has advanced the sponsor $7000 before the marriage: r.1.15A(3)(a)(iii) or (iv), and/or by failing to consider evidence that the applicant and the sponsor were recognised socially as a spousal couple.
2.The second respondent failed to provide the applicant with clear particulars of information that it considered would be the reason or a part of the reason for affirming the decision under review, as required by s359A of the Act.
i. The second respondent relied upon information provided by the sponsor to the delegate at interview, being information particulars of which were not provided to the applicant.
Legislation and Regulations
The statutory criteria for the grant of a subclass 820 visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (“the Regulations”).
Clause 820.211 required inter alia, that at the time of application, the applicant is the spouse of the sponsor.
Section 5F of the Migration Act 1958 (“the Act”), sets out, for the purposes of the Act, when a person is the “spouse” of another person.
Section 5F of the Act provides:
(1) For the purposes of this Act, a person is the spouse of another
person if, under subsection (2), the 2 persons are in a married
relationship.(2) For the purposes of subsection (1), persons are in a married
relationship if:
(a) they are married to each other under a marriage that is valid for the purposes of this Act; and
(b) they have a mutual commitment to a shared life as husband
and wife to the exclusion of all others; and
(c) the relationship between them is genuine and continuing; and
(d)they:
(i) live together; or
(ii) do not live separately and apart on a permanent basis.
(3) The regulations may make provision in relation to the
determination of whether one or more of the conditions in
paragraphs (2)(a), (b), (c) and (d) exist. The regulations may make different provision in relation to the determination for different purposes whether one or more of those conditions exist.Regulation 1.15A prescribes the matters to be considered when assessing whether a spousal relationship exists for the purposes of the Regulations. Reg 1.15A (2) prescribes that “the Minister must consider all the circumstances of the relationship, including the matters set out in sub-regulation (3)”. The matters prescribed 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 party to the relationship owes any legal obligation in respect of the other; and
(v)The basis of any sharing of day to day household expenses.
(b)The nature of the household, including:
(i)Any joint responsibility for care and support of children, if any; and
(ii)The parties’ living arrangements; and
(iii)Any sharing of responsibility for housework.
(c)The social aspects of the relationship, including:
(i)Whether the person represent themselves to other people as being married or in a de facto relationship with each other;
(ii)The opinion of the persons’ friends and acquaintances about the nature of the relationship; and
(iii)Any basis on which the person plan and undertake joint social activities.
(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 person draws from each other; and
(iv)whether the persons see the relationship as a long term one.
Tribunal Decision
The applicant appeared before the Tribunal on 14 November 2013 to give evidence and present arguments. Oral evidence was provided by the applicant and his migration agent. The hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
In its decision record, the Tribunal identified the documents the applicant submitted in support of the review. These documents included a Statutory Declaration of Ahmad Allouche as to the genuine nature of the claimed relationship and recent observations of difficulties in the relationship (CB 266), a psychological assessment of the applicant by psychologist Mr Edwin Kleynhans dated 13 November 2013 (CB 177-201), print-outs of text messages between the applicant and sponsor (CB 202-240), several bank statements addressed to the applicant at a Springvale address for the 12 month period to June 2012 (CB 241-260), a gas account of September 2012 addressed to the applicant and sponsor at a Broadmeadows address (CB 261), a superannuation account balance addressed to the applicant at the Broadmeadows address dated October and November 2012
(CB 264-264), and a detailed statement by the applicant as to the circumstances of his relationship with the sponsor (CB 165-176).
The Tribunal summarised the evidence given at the hearing (CB 294) at [13]):
· the applicant claimed that the sponsor had lied to the delegate about their relationship and the relationship was not contrived to enable him to migrate to Australia;
· that he genuinely was in love with the sponsor and their relationship was genuine;
· the applicant gave an account of the inception and development of the parties’ relationship consistent with that provided at the time of application;
· that the parties argued before their marriage because he was Hindu and she was Muslim;
· the applicant was not aware that the sponsor had four children;
· that he did not meet the sponsor’s mother before their marriage because her mother was a strict Muslim;
· the applicant had not met the sponsor’s siblings;
· the parties married on 2 April 2012 and the sponsor’s cousin, Ahmed, and his wife attended;
· that this is the first long term relationship for the applicant;
· the applicant had not told his parents of his marriage as his father was a strict Hindu. The applicant said that his mother now knows that he has married but his father still does not know;
· the applicant and the sponsor commenced living together one month after the marriage and remained together until September 2012 when the relationship had broken down. The applicant said that the relationship broke down in October 2012;
· the applicant said that he wanted to have the sponsor register herself as being in a partnered relationship for the purposes of her child payments but the sponsor refused because she did not want to lose any payments;
· in September 2012 the sponsor took the applicant to meet another cousin who he hadn’t met before and he threatened the applicant with a rifle so that the applicant would stop his demands on the sponsor to report that she was in a partnered relationship to Centrelink.
The Tribunal noted that, on 28 November 2013, it received additional material in relation to the applicant’s claims and summarised this material as (CB 295 at [14]):
· a submission from the representative that summarises the relationship between the parties and refers to the incidents of family violence claimed by the applicant;
· a letter of referral from the applicant’s doctor practising at Clayton Road Doctors addressed to Phillipa which provides a medical history and a record of a consultation conducted on 12 November 2012;
· an undated letter from the same clinic that states that the Doctor referred to above is no longer at that practice and the Doctor seen by the applicant on that day was unable to complete the paperwork;
· a Form 1040 Statutory Declaration relating to family violence completed by Edwin Kleyhans, Pscychologist, on 26 November 2013; and
· a Statutory Declaration made by Rajan Ralia on 25 November 2013 which outlines his relationship to the applicant, his knowledge of the relationship of the applicant with the sponsor and that he had assisted the applicant to move to the Broadmeadows address.
The Tribunal then proceeded to consider the claims and evidence by reference to the matters prescribed in Reg 1.15A(3). The Tribunal found in respect of those matters (CB 297 at [29] to [43]):
a) There was minimal evidence of a pooling of financial resources, noting that before the delegate there had been a joint bank account statement for the period 12 September 2012 to 28 September 2012 that showed minimal transactions, and before the Tribunal there was limited evidence in the form of an annotated ANZ Bank Statement in the applicant’s name and a gas account and superannuation statement addressed to the sponsor’s Broadmeadows home (CB 297/298 at [29]-[32].
b) It was not satisfied that the applicant and the sponsor ever established a joint household, noting that the applicant claimed to have commenced living with the sponsor one month after their wedding, that was held in April 2012, but the sponsor directly contradicted this when telling the delegate that she had never lived with the applicant at her Broadmeadows address, and that there was little if any objective evidence that the parties had established a joint household (CB 298 at [33]-[35].
c) It was not satisfied that the parties presented themselves or were recognised by others as a spousal couple, noting that there were no photos of the applicant and sponsor undertaking social activities (other than 8 wedding photos featuring no wedding guests), the applicant and sponsor had not met their respective sets of parents, and although two statutory declarations had been provided from friends, there was no objective evidence of the applicant and sponsor being recognised socially as a spousal couple (CB 298 at [36]-[39].
d) The Tribunal accepted that the couple were legally married, but found that they had known each other for no more than nine months, there was little evidence of their having combined their financial resources or having lived together, and the sponsor had admitted to the delegate that the married relationship had been contrived to enable a migration outcome (CB 298-299 at [40], [41] and [42].
e) The Tribunal acknowledged that the applicant denied that the relationship was contrived, and that he was genuinely in love with the sponsor, but her admission to the delegate that the relationship had been contrived meant that while he might have had a commitment to the relationship, the sponsor clearly did not (CB 299 at [42].) As a consequence the Tribunal was not satisfied that the applicant and the sponsor had a mutual and/or long term commitment to the spousal relationship (CB 299 at [44]-[45]).
Given these findings, the Tribunal was not satisfied that at the time the visa application was lodged the parties were in a spousal relationship consistent with that defined in s.5F of the Act. Accordingly it found that the visa applicant did not meet cl.820.211(2)(a) and therefore did not satisfy cl.820.221.
With respect to the applicant’s claims of family violence the Tribunal stated (CB 299 at [46]):
“The Tribunal acknowledges that the applicant appears to have made a claim that he is a victim of family violence as specified in cl.820.221(3)(b)(i). However for claims of family violence to be made under cl.820.221(3)(b)(i) the Tribunal must be satisfied that the applicant would have satisfied cl.820.211(2), had the relationship not ceased. Given the Tribunal’s finding that it is not satisfied that the applicant was ever in a spousal relationship with his sponsor, the claims of family violence have not been assessed.”
Judicial Review – Ground 1
The applicant submits that the Tribunal misconstrued or misapplied the prescribed criteria and, consequently, fell into jurisdictional error: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32. The applicant submits that the Tribunal has asked the wrong question, ignored relevant material and misunderstood or failed to correctly apply the law. He submits that the Tribunal treated the delegate’s decision record, which set out the sponsor’s allegations that the marriage was a contrived one, as determinative of certain of the prescribed matters under regulation 1.15A. Consequently, the Tribunal failed to consider all the evidence before it as required by regulation 1.15A(2) and (3). The applicant submits that the Tribunal erred by focusing upon what it referred to as a lack of “objective evidence” instead of considering, as it was obliged to do, the evidence before it.
The applicant referred to the decision of Katz J in Aung Minister for Immigration and Multicultural Affairs [2000] FCA 1562 where at [7], his Honour stated:
“7 It follows that the RRT would err if, in its review of the delegate's decision in a particular case, it gave weight to the delegate's decision in arriving at its own decision. It further follows, in my view, that the RRT would err if, in its review of a delegate's decision in a particular case, it found a certain fact to exist because the delegate had earlier done so. In either event, the RRT would be said to have committed an error of law, in the same way that this Court held both in the Collins and Twyman cases that the AAT had committed an error of law.”
The applicant says that he is not submitting that the Tribunal relied on a particular statement but rather that a distinct impression is conveyed, upon a reading of the Tribunal’s reasons, that the Tribunal has given considerable weight to the fact that the delegate had made findings in respect of prescribed matters under regulation 1.15A(3).
The applicant submits, that whilst the Tribunal detailed the evidence before it, it did not give critical evidence any consideration. The applicant accepts that the Tribunal was not required to refer to every bit of evidence and that the weight to be accorded the evidence is ultimately a matter for the Tribunal. He submits that the failure of the Tribunal to consider the applicant’s evidence in relation to the prescribed criteria meant that the Tribunal failed to take into account relevant material being evidence relevant to the circumstances of the relationship, including matters set out in sub-regulation (3).
The applicant identifies the following evidence which he maintains the Tribunal failed to consider and wrongly asserted that there was “no objective evidence.”
The applicant submits that the Tribunal failed to consider evidence relevant to the financial aspects of the relationship and, in particular, sub-regulation (3)(a)(iii), (iv) and (v):
· the applicant’s evidence that he loaned $7000 to the sponsor in early 2012. The applicant refers to this loan in his written submissions to the Tribunal (CB175). He relies on a bank statement dated 5 January 2012 (CB 255) which records a debit of $7000 and text messages between the sponsor and himself on 27 March 2012 (CB207 to 213). The text messages include the following texts:
·applicant: “Sorry I can’t take out money from bank”;
·sponsor: “I told you! That I will give you back. Trust me”;
·applicant: “last time I helped you but I haven’t received yet, I am not fucking money maker”;
·sponsor: “Pls pls ! Try to understand my problem my hubby! Will get you back promise.”;
·Applicant: “no no, first give my 7000 back”
The applicant points out that he gave oral evidence regarding the $7000 loan (Transcript page 28, Supplementary Court Book) including drawing the Tribunal member’s attention to the chat messages and the bank statement.
The applicant submits the evidence was not dealt with or addressed by the Tribunal in any form other to than to say that “I have before me records of chat and bank statements”
The applicant submits that there was objective evidence regarding the social aspects of the relationship, in particular, those aspects prescribed in sub-regulation (3)(c)(i) and (iii),which the Tribunal failed to consider. The applicant relies on the statutory declarations of relatives and friends of the applicant (CB 266 and 267). The applicant concedes that the Tribunal did refer to the statutory declarations but wrongly stated (at [39] of its decision record) that there was no objective evidence before it in relation to this prescribed matter.
With respect to sub-regulations 3(b) and (d), the applicant submits that the Tribunal relied on the sponsors’ admissions to the delegate regarding the social aspects of the relationship and the nature of their commitment. In so doing, the Tribunal failed to refer to:
· the statutory declaration of the sponsor dated 10 April 2012, attached to the Sponsorship for a Partner to Migrate to Australia (CB 47) where she describes the circumstances surrounding the commencement of their relationship and their marriage and states “now we are living together and we are happily enjoying our life together as a couple”;
· the text messages between the sponsor and the applicant which he submits discloses that it was the sponsor who wanted the parties to marry and put the pressure on the applicant for an answer (CB 232 to 233); and
· telephone records which evidence records of calls made by the applicant to the sponsor (CB199 to 127).
The Minister submits that regard must be had to the fact that the matters prescribed in Reg. 1.15A are provided in support of the provisions of s.5F of the Act. The Minister argues that, whilst it is evident the sponsor and applicant were married at 2 April 2012, s.5F also required that they have a mutual commitment to a shared life as husband and wife to the exclusion of all others. The Minister submits it is clear from the evidence given by the sponsor there was no mutual commitment and the relationship was not genuine and continuing.
The Minister further submits that the primary criteria in cl.820.211 of Schedule 2 to the Regulations was required to be satisfied at the time of the application being 30 April 2012. The Minister submits that much of the evidence the applicant argues was not considered relates to a period in August to October 2012.
The Minister submits that on a fair reading of the Tribunals’ decision record, it considered the material before it, and elected to prefer the evidence that the sponsor and applicant were not in a genuine and continuing relationship and had a mutual commitment to each other.
I am satisfied that the Tribunal did not rely on the findings of the delegate but considered the evidence of the sponsor given to the delegate at the interview dated 9 October 2012, which was referred to in the delegate’s decision.
I am satisfied that in considering evidence relevant to s.5F, the Tribunal is not confined to material at the time of the application and may take into account subsequent events: Ally v Minister for Immigration & Citizenship [2008] FCAFC 49. At [32] to [35], the Full Court stated:
32. The Tribunal’s task was, amongst other things, to determine the nature of the appellant’s relationship at the time of the application. Some of the observations of the Tribunal suggest that in undertaking this task, it took into account the nature of the relationship at a time after the application has been lodged in determining its nature when it was lodged. However, on a fair reading of the Tribunal’s, it performed its task of assessing the nature of the relationship at the time of the application.
33. The authorities to which Smith FM referred support the proposition that, subject to certain provisos, it is open to an administrative Tribunal to look at subsequent events to see whether they assist in determining the state of affairs at an earlier point in time: e.g. Hospital Benefits Fund of WA Inc v Minister [1992] FCA 599; (1992) 39 FCR 225 at 234; Comptroller-General of Customs v Akai Pty Ltd (1994) 50 FCR 511 at 521.
34. This is particularly so where the Tribunal is required to make a predictive assessment and the later events demonstrate that earlier material was incorrect, incomplete or misleading: Verney at [53]. The principle qualification to the general rule is that the Tribunal’s use of later events must be limited to considering whether that material throws light upon the position as at the date when the determination was required to be made. This qualification was mentioned in the authorities to which Smith FM referred.
35. Each case must turn upon its own statutory context and care must be taken to ensure that the subsequent events are truly informative of the position at the earlier point in time.
The following observations in Selvadurai v Minister for Immigration and Ethnic Affairs & Anor (1994) 34 ALD 347 is relevant:
“A decision-maker does not have to have rebutting evidence available before he or she can lawfully hold that a particular factual assertion by an applicant is not made out.”
In Chen Xin He v the Minister of Immigration and Ethnic Affairs [1995] FCA 1682 RD Nicholson J stated at [24]:
“It is not the case, as the submissions for the applicant appear to assume, that the evidence of the applicant should have been believed by the Tribunal unless specifically disproved by the objective evidence before the Tribunal. Rather it was for the Tribunal to decide what facts it found on a consideration of all the evidence, subjective and objective. This required the Tribunal not only to consider inconsistencies but also to determine what evidence it found credible.”
As stated by the Full Court of the Federal Court in Minister for Immigration and Citizenship v Applicant A125 of 2003 [2007] FCAFC 162 at [95]:
“Plainly, the weight to be accorded to the applicant’s evidence was a matter for the RRT. It is not a matter for this Court.”
Moreover, the Tribunal was not required to give detailed reasons for accepting the sponsor’s evidence and not the applicant. In Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2008) 168 ALR 407 per McHugh J at [67]:
“If the primary decision-maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence. In any event, the reason for the disbelief is apparent in this case from the use of the word “implausible”. The disbelief arose from the tribunal’s view that it was inherently unlikely that the events had occurred as alleged.”
In Tefonu Pty Ltd v Insurance & Superannuation Commissioner (1993) 44 FCR 361 per Beazley J at p.374:
“The weight which is to be given to a relevant factor is a matter for the Tribunal, unless it can be said that the Tribunal’s decision is manifestly unreasonable. (Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41; Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 230, 233-234).”
The Court does not make that finding in this case.
Ultimately it appears to me that the applicant is asking the Court to review and weigh the evidence before the Tribunal. This of course is impermissible merits review: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [272].
I am not satisfied that jurisdictional error has been made out on this ground.
Judicial Review – Ground 2
The applicant submits that the Tribunal failed to provide the applicant was clear particulars of information it considered would be a reason for affirming the decision under review as required by section 359A of the Act. Consequently, the Tribunal fell into jurisdictional error: SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24.
Section 359A of the Act provides:
Information and invitation given in writing by Tribunal
(1) Subject to subsections (2) and (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review;
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
(2) The information and invitation must be given to the applicant:
(a) except where paragraph (b) applies--by one of the methods specified in section 379A; or
(b) if the applicant is in immigration detention--by a method prescribed for the purposes of giving documents to such a person.
(3) The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 359AA.
(4) This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b) that the applicant gave for the purpose of the application for review; or
(ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
(c) that is non-disclosable information.
Sections 359AA of the Act provides:
Information and invitation given orally by Tribunal while applicant appearing
If an applicant is appearing before the Tribunal because of an invitation under section 360:
(a) the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) if the Tribunal does so--the Tribunal must:
(i) ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and
(ii) orally invite the applicant to comment on or respond to the information; and
(iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and
(iv) if the applicant seeks additional time to comment on or respond to the information--adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.
The relationship between equivalent provisions of the Act relating to the Refugee Review Tribunal have been considered in the following decisions.
In SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46 Tracey and Foster JJ stated at [91]:
“…the information covered by each section (ss.424A and 424AA) must be the same.”
Moore J noted also stated at [2]:
“… in the present case the contentious information was “country information” comprehended by s 424A(3)(a) of the Act (that is, information that was not specifically about the applicant or another person and was just about a class of persons of which the applicant or other person is a member). Accordingly, there was no duty under s 424A to give particulars of that information… Any non-compliance with s 424AA in circumstances where there was no duty otherwise imposed by s 424A, is, in my opinion, of no legal consequence.”
In SZNKO v Minister for Immigration and Citizenship [2010] FCA 297 (SZNKO ) Flick J stated at [10]:
“Section 424A, it will be noted, is expressed in mandatory terms — the Tribunal “must” do those things there specified; s 424AA(a) conveys a discretionary power — the Tribunal “may” give the “clear particulars” there referred to orally to an applicant (SZLXI v Minister for Immigration and Citizenship [2008] FCA 1270 at [24], [2008] FCA 1270; 103 ALD 589 at 593) and, if it does so, s 424AA(b) then uses the mandatory term “must.””
There is no dispute that section 359A(4) of the Act includes information contained in the delegate’s decision: Minister for Immigration and Citizenship v Chamnam Yu [2008] FCA 241
Information does not encompass a Tribunal’s subjective appraisals, thought processes or determinations: VAF v Minister for Immigration & Multicultural and Indigenous Affairs [2004] FCAFC 123 cited with approval in SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 (SZBYR). Nor does information include the Tribunals disbelief of an applicant’s evidence arising from inconsistencies SZBYR at [18].
The applicant submits that the clear particulars of information the Tribunal was obliged to provide him pursuant to s.359A was what was said by the sponsor to the delegate in the course of the interview conducted by the delegate with the sponsor on October 2012. The applicant submits it is evident that the information arising from the interview with the delegate would be a reason for affirming the decision under review. The applicant says he was denied the opportunity to explain or contextualise the sponsor’s actions in advising the Minister she had to withdraw her sponsorship on 4 July 2012 (CB 69), advising the Minister on 23 August 2012 (CB 70) that she no longer wished to withdraw her sponsorship, and then advising on 8 October 2012 she now wished to withdraw her sponsorship (CB 132).
The Tribunal’s reasons, the applicant claims, reveals various instances where the Tribunal contrasts the applicant’s evidence with what was recorded by the delegate as being said by the sponsor: see [33] and [41] of the decision record.
The applicant relied on the decision of Flick J in SZNKO v Minister for Immigration and Citizenship [2010] FCA 297. Where his Honour stated (at [23]):
“23. There may be circumstances in which the requirement to “give” information to which s 424A applies may not extend to a requirement to disclose the entirety of any document in which such “information” is contained. In those cases it may not matter for the purposes of making a decision affirming a refusal of a protection visa that the “information” in question is but part of a document or report touching other matters or containing diverse other matters. In those cases the disclosure of that specific part of a much lengthier document may be sufficient. But “information” for the purposes of s 424A cannot in all cases be clinically divorced from the context it which it appears. How much of that surrounding context must also be disclosed must necessarily depend upon the facts and circumstances of each individual case. In some cases it may be necessary to identify the “source” from which information has been obtained. Thus, in SZLIQ v Minister for Immigration and Citizenship [2008] FCA 1405 Buchanan J concluded that extracts from a published book and the source of that material should have been disclosed. Indeed, the extent of disclosure may not necessarily be confined to the disclosure of material which ensures that a particular part is not rendered misleading; the touchstone is that s 424A and s 424AA require the disclosure of so much as to ensure that the opportunity to “comment... or respond...” is meaningful. In some cases the disclosure of the “substance” of information may be sufficient (NAVM v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 99 at [33]); in other cases “clear particulars” may require more.”
In Sandhu v Minister for Immigration & Multicultural Affairs & Citizenship [2013] FCA 842. Lowdry J referred to the decision of the Federal Court in SZNKO and SZLIQ v Minister for Immigration & Citizenship [2008] FCA 1405. His Honour noted that in both decisions, the appellants complained that the failure of the Tribunal to provide the source of information which the Tribunal relied in affirming the decision under review. His Honour stated at [29] to [31]:
29. The appellant was told by the Tribunal member of the information relevant to his application and he was then provided with an opportunity to respond or to comment upon that information. That information is referred to at [11] above, and was undoubtedly ‘information’ within s 359AA. It provided precise details which were to be taken into consideration by the Tribunal as a reason or part of a reason for possible cancellation of the appellant’s visa. The information was drawn from four sources, namely the agreed summary of material facts, the list of employers, the AFP statement, and the statement of the manager of the café.
30. It is true that the Tribunal incorrectly referred to the agreed summary of material facts as being the source for the proposition that the café had been falsely nominated as having provided over 900 hours of work experience, and that the specific information that was given to the appellant from the statement was divorced from the context of the remainder of the statement. Unlike the facts in SZNKO and SZLIQ however, there was no issue as to the credibility or relevance of the sources of the information.
31. In these circumstances, the Court does not consider that these factors led to the opportunity for the appellant to comment on or respond to the information being not meaningful. This is because, as was found by the Federal Magistrate at [49] of her decision, the sources of the information did not form any part of the Tribunal’s decision; rather it was the substance of the information that was relevant. The mistake of the Tribunal in incorrectly referring to the source of the adverse information does not amount to legal error, and nor does the failure to provide the whole of either the AFP statement or the list of employers to the appellant.
The Minister submits that the delegate’s decision sets out in clear terms the particulars of what the sponsor stated at the interview (at CB 144 to 146). Consequently, the applicant was put on notice by the delegate’s decision, which was subsequently given as information to the Tribunal, as to the particulars of what was said in the course of the interviews.
I am satisfied that the Tribunal relied on the substance of the information provided by the sponsor in the interview and recorded by the delegate in her decision.
In her decision record, the delegate referred to the interview with the applicant on 9 October 2012 as follows (CB 144):
“On 9/10/2012 your sponsor has been interviewed by the case officer and subsequently your sponsor requested in writing to withdraw their sponsorship stating that the marriage was contrived and she had entered into the relationship for financial gain”.
The delegate referred to the substance of what the sponsor said at the interview as follows:
“Your sponsor advised that you had wanted to open a bank account in joint names for immigration purposes” (CB 145).
“Your sponsor stated in an interview that you have never lived with her at her house which is your claimed residential address. Furthermore, she stated that you insisted that one utility bill must be in joint names for immigration purposes. Your sponsor indicated that she felt she had no choice and she was reluctant to have the account in both names. Your sponsor expressed concerns in engaging in this contrived marriage and having your name on the utility bill as she believed it would have a great impact on her family’s emergency housing eligibility. Your sponsor contacted you by phone when she received your mail and your mail was placed outside the sponsor’s house for your collection”.
It was the substance of this information referred to by the Tribunal at [33]:
“The applicant claims that he commenced living with the sponsor one month after their wedding ceremony in April 2012, however this has been directly contradicted by the sponsor at interview with the delegate when she stated the applicant had never lived with her at the Broadmeadows address. The applicant has provided correspondence in his name or joint names at this address and his oral evidence is that he commenced living at the address”.
And at [41]:
“As discussed above there is little if any objective evidence that the applicant and the sponsor have combined their financial resources or have ever lived together. The delegate refers to the admission of the sponsor that the married relationship between the parties had been contrived to enable a migration outcome”.
The applicant attached the delegate’s decision to his application for merits review. The Tribunal relied only on information from the interview between the sponsor and delegate summarised in the delegate’s decision. Consequently, the information can be fairly characterised as information provided by the delegate and thus falling within the exception of s.359A(4)(b). The applicant was informed, by reason of the delegate’s decision of the substance of adverse information, which might be a reason for affirming the decision under review.
I, therefore, find the applicant has not made out jurisdictional error on this ground.
For the reasons set out above I dismiss the application for judicial review with costs.
I certify that the preceding seventy-one (71) paragraphs are a true copy of the reasons for judgment of Judge Jones
Associate:
Date: 11 November 2014
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