YI and Ors v Minister For Immigration and Anor (No.2)

[2017] FCCA 1236

FEDERAL CIRCUIT COURT OF AUSTRALIA

YI & ORS v MINISTER FOR IMMIGRATION & ANOR (No.2) [2017] FCCA 1236

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Partner (Temporary) (Class UK) visas – whether the Tribunal failed to consider documents that were before it – whether the Tribunal failed to take into account the sponsor’s statutory obligations – no jurisdictional error identified – application dismissed.

Legislation:

Education Act1990 (NSW)

Family Law Act 1975 (Cth)

Migration Act 1958 (Cth), ss.5F, 486.

Migrations Regulations 1994 (Cth), r.1.15A, Schedule 2, cls.820.211, 820.221, 820.321.
Status of Children Act 1996 (NSW)

First Applicant: GEUM JU YI

Second Applicant: GAYOUNG YI

Third Applicant: SEUNGYOUNG YI

Fourth Applicant: YUN YI

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2725 of 2016

Judgment of: Judge Street

Hearing date: 8 June 2017

Date of Last Submission: 8 June 2017

Delivered at: Sydney

Delivered on: 8 June 2017

REPRESENTATION

Counsel for the Applicants:

Ms A Gibbons

Solicitors for the Applicants:

Sandhu Lawyers

Solicitors for the Respondents:

Mr K Eskerie

Sparke Helmore

ORDERS

1. Leave to the applicants to rely upon the further amended application raising ground 1, which is the same in the original and amended applications, and raising grounds 5 and 6.

2. Direct the further amended application in respect of those grounds be filed electronically on or before 12 June 2017.

3. The further amended application is dismissed.

4. The first applicant pay the first respondent’s costs fixed in the amount of $6,400.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2725 of 2016

GEUM JU YI

First Applicant

GAYOUNG YI

Second Applicant

SEUNGYOUNG YI

Third Applicant

YUN YI

Fourth 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 writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 8 September 2016, affirming a decision of the delegate not to grant the applicants Partner (Temporary) (Class UK) visas. The first applicant is a national of Korea and the second, third and fourth applicants are her children in respect of whom this Court made an order appointing the first applicant the litigation guardian for the second, third and fourth applicants.

2. The first applicant was sponsored by an Australian citizen, Mr Lee. The applicant and the sponsor claimed to have registered their marriage in South Korea on 28 February 2006. The second, third, and fourth applicants are the first applicant’s children and were secondary applicants for the purpose of the partner visa application. On 28 August 2015, a delegate of the Minister refused to grant the applicants the visa as the delegate was not satisfied that the first applicant was in a genuine spousal relationship with the sponsor for the purpose of cl.820.211 of Schedule 2 to the Migrations Regulations 1994 (Cth) (“the Regulations”).

The Tribunal’s decision

1. The applicants applied for review of the delegate’s decision on 3 September 2015. The applicants appeared before the Tribunal on 5 September 2016 to give evidence and present arguments. The Tribunal also received evidence on that occasion from the sponsor. The applicants were represented by their registered migration agent. The Tribunal identified the relevant law and that cls.820.211(2)(a) and 820.221 require at the time that the visa application was made and at the time of decision the applicant is a spouse or de facto partner of an Australian citizen or Australian permanent citizen or an eligible New Zealand citizen and the Tribunal identified that in the present case the applicant claims to be the spouse of the sponsor.

Assessment of claims

1. The Tribunal correctly identified the relevant law in relation to s.5F and the requirement of r.1.15A(3) of the Regulations. The Tribunal found the parties were validly married. The Tribunal made reference to the primary decision being made because the parties provided minimal evidence of the relationship with their application. The Tribunal noted the explanation that they were unaware of the need to provide evidence and additional documentary evidence of their relationship and noted that additional documentary evidence of the relationship had been provided to the Tribunal. The Tribunal observed that it had given that evidence due regard.

Living arrangements

1. The Tribunal turned to the living arrangements of the parties and the nature of the household. The Tribunal identified that some of the evidence was consistent, however, there were many aspects of the parties’ evidence that the Tribunal considered to be inconsistent with their claim that they lived together and have an established joint household. The Tribunal identified seven matters as an example of the inconsistencies. The Tribunal observed that these matters were of concern because they relate to basic aspects of their daily lives and the Tribunal was of the view that if the parties had lived together they may be expected to be cognisant of the matters identified and to provide consistent evidence around such matters. The Tribunal found that these inconsistencies suggested to the Tribunal the parties do not live together and had not established a joint household.

2. The Tribunal made reference to the documentary evidence of cohabitation in the form of a lease agreement and various correspondence. The Tribunal observed that there was no suggestion that those who wrote to the applicant and the sponsor, or even the real estate agent, verified the couple’s living arrangements. The Tribunal observed that there had been no testing of such information.

3. The Tribunal did not consider that the applicant and the sponsor putting their names on a lease arrangement or informing various organisations that they lived together constitutes probative evidence of their cohabitation. The Tribunal found, having regard to the discrepancies identified by the Tribunal, that it was not satisfied the parties do live together and found that it was not satisfied that they had established a joint household.

Financial aspects of relationship

1. The Tribunal then turned to the financial aspects of the relationship. The Tribunal referred to the inconsistent evidence between the sponsor and the applicant about the sending of money and the Tribunal noted the sponsor’s explanation that the inconsistency was due to the amounts being very small. The Tribunal made reference to the claim that they had shared their resources. The Tribunal identified that the applicant had said they had one joint account and that the sponsor said they had two accounts. This was then the subject of explanation in relation to the sponsor having two cards and getting confused.

2. The first applicant’s evidence to the Tribunal was that the couple’s income is deposited into a joint account and she said the sponsor has another account in his name where he deposits $200 to save for a house. The sponsor informed the Tribunal that his salary goes into the individual account, and not the joint account, contradicting the applicant’s evidence that all income is deposited into a joint account. The sponsor also said there were no other funds going into an individual account contradicting the first applicant’s evidence about the regular transfer of $200.

3. The Tribunal made reference to a NAB transaction history, which the Tribunal found contradicted the first applicant’s evidence that only $200 was deposited into the individual account of the sponsor and that all other income is deposited into the joint account. The Tribunal formed the view that the parties had been less than truthful in their evidence concerning their financial arrangements. The Tribunal was not satisfied the parties share their finances or their resources for their daily expenses. The Tribunal was not satisfied that the parties had joint ownership of assets and joint liabilities and was not satisfied they had legal obligations in relation to one another.

Social aspects of relationship

1. The Tribunal also considered the social aspects of the relationship. The Tribunal made reference to the first applicant’s claim that she lived with the sponsor’s family before travelling to Australia but found that there was no evidence to support those claims.

Commitment to each other

1. The Tribunal turned to consider the parties’ commitment to each other. The Tribunal was not satisfied that they are living together since the applicants arrived in Australia. The Tribunal accepted that the length of the relationship does not necessarily indicate the parties’ commitment to it.

2. The Tribunal referred to the couple having claimed to have a child together and having produced a child’s birth certificate. The Tribunal, because of the concerns about the oral evidence, invited the first applicant to arrange a DNA test. No such test was carried out. The Tribunal did not accept the explanation that the parties advanced in relation to why they could not obtain the testing. The Tribunal did not accept that the couple had no funds for the testing and identified the absence of any evidence in relation to an attempt to find funds from other sources. The Tribunal was accordingly concerned that the youngest child was not the child of the relationship and that the parties had not been truthful as claimed.

3. The Tribunal made reference to the birth certificate identifying the sponsor father but noted that that would be based on the information provided by the parties and was not any verification of paternity. The Tribunal made reference to the sponsor treating all the children as his but noted specifically the claim that the youngest child was a child of the relationship. The Tribunal was not satisfied that that was true. The Tribunal found that that was a strong indicator of the lack of credit in relation to the applicant’s evidence concerning the relationship irrespective of how the sponsor feels about the children.

Conclusion

1. The Tribunal acknowledged that some aspects of the relationship pointed towards the existence of a genuine committed relationship. The Tribunal took into account the length of time the parties had been married and the fact that they present themselves to others as being in a relationship and acknowledged the parties’ evidence that the sponsor has extended parental responsibility in relation to the three children. The Tribunal noted that against these considerations the Tribunal had formed the view that the parties had not established a joint household and the Tribunal was not convinced that they share their finances.

2. The Tribunal formed the view that they had been less than truthful in some aspects of their claims and, significantly, the Tribunal was concerned about the evidence in relation to the third child’s paternity. The Tribunal found that the evidence suggested otherwise than a genuine committed relationship. The Tribunal observed that having considered the totality of the evidence the Tribunal was not satisfied that the applicant and the sponsor have a mutual commitment to a shared life to the exclusion of others. The Tribunal was not satisfied the relationship is genuine and continuing. The Tribunal was not satisfied that they lived together.

3. The Tribunal was not satisfied that the time the visa application was made, and at the time of the decision, the parties were in a spousal relationship. The Tribunal accordingly found that the first applicant does not meet the requirements of cl.820.211(2)(a) or that the first applicant meets the alternative criteria under cl.820.211. The Tribunal found that the first applicant did not meet the requirements of cls.820.211 or 820.221. Accordingly, the Tribunal found that the secondary applicants did not meet the requirements of cl.820.321 and affirmed the decision not to grant the applicants Partner (Temporary) (Class UK) visas.

Proceedings before this Court

1. Ms Gibbons of counsel on behalf of the applicants handed up a proposed amended application. An amended application had already been filed. Ms Gibbons was given leave to rely upon a further amended application in respect of which the three grounds pressed were as follows:

   Ground 1:

   The Administrative Appeals Tribunal claims that because of minor differences in the statements of my husband and I we are not telling the truth.

   Particulars:

   The Administrative Appeals Tribunal is drawing an inference that because minor differences in the statements my husband and I made at the interview are living together and have not established a joint household.

   The Tribunal acknowledged that there is documentary evidence of cohabitation in the form of lease agreements and various correspondence addressed to the same address but believes these parties who wrote to us did not verify our living arrangements.

   Ground 5

   The decision of the tribunal was attended by jurisdictional error by reason that the tribunal failed to consider documents that were before the tribunal

   Particulars

   (a) Joint lease from residential tenancy agreement dated 07.07.14 CB page 62:

   (b) Joint lease dated lease 26.06.15 CB page 64

   (c) Copy of joint electricity bill Energy Australia CB page 81:

   (d) Copy of Joint Certificate of marital relations dated 23.09.2014 translated 29.09.2014; CB page 87.

   (e) Certificate of marital relations dated 28.02.06 translation CB 217

   Ground 6

   The decision of the tribunal was attended by jurisdictional error by reason that the tribunal failed to consider documents that were before the tribunal

   Particulars

   f)     Joint lease from residential tenancy agreement dated 07.07.14 CB page 62:

   g)   Joint lease dated lease 26.06.15 CB page 64

   h)   Copy of joint electricity bill. Energy Australia CB page 81:

   i)     Copy of Joint Certificate of marital relations dated 23.09 .2014 translated 29.09.2014; CB page 87.

   j)     Certificate of marital relations dated 28.02.06 translation CB 217

   k)   Application to enrol in NSW Government school forms CB 218

   (Errors in original)

Ground 1

1. In relation to Ground 1, Ms Gibbons sought to take issue with the materiality of the inconsistencies identified by the Tribunal. On their face the inconsistencies identified by the Tribunal were not minor or trivial differences and, in substance, Ground 1 is an invitation to this Court to engage in impermissible merits review. The adverse findings by the Tribunal were open on the material before the Tribunal and cannot be said to lack an evident and intelligible justification. The logical basis identified in the reasons of the Tribunal for the inconsistencies supports the adverse findings. No jurisdictional error is made out by Ground 1.

Ground 5

1. In relation to Ground 5, it is apparent from the Tribunal’s reasons that the Tribunal identified having regard to all material before it. It is not necessary for the Tribunal to refer to all pieces of evidence that are adduced. It is apparent that the Tribunal did refer to the joint lease and made findings adverse to the applicants notwithstanding the existence of a joint lease and explained the reasons in support of those adverse findings. There is no obligation on the Tribunal to refer to the electricity bill, nor the certificate of marital relations in circumstances where the marriage was accepted.

2. Whilst ground 5 does not articulate any such basis, Ms Gibbons sought to argue that there was a failure by the Tribunal to take into account common law and statutory obligations that a parent may owe a child. No such submission was advanced before the Tribunal and accordingly cannot make out any jurisdictional error by the Tribunal. It is apparent that the Tribunal took into account the relationship between the sponsor and the children and was aware of the relationship between the applicant and the children. Ms Gibbons sought to take issue with the finding by the Tribunal referrable to the requirements of r.1.15A, in which the Tribunal observed that it was not satisfied that they share their finances or pool resources for their daily living and was not satisfied they had joint ownership of assets and joint liabilities. The Tribunal’s reasons are not to be read with a keen eye for error.

3. It is apparent that the Tribunal was alive to the existence of material on which both names of the applicant and sponsor appeared as well as their lease. The Tribunal did not say that there is no evidence of joint liabilities or no evidence of assets. Rather, the Tribunal was making a finding referrable to having considered the evidence adduced by the parties in respect of r.1.15A(3)(a) and the reference by the Tribunal to not being satisfied that they have legal obligations in relation to the other party is clearly a reference to the consideration in respect of legal obligations between the parties.

4. I am not satisfied that there was any error in the findings of the Tribunal in respect of the requirements of r.1.15A. There is no basis for holding that the Tribunal failed to take into account, on a fair reading of the Tribunal’s reasons, the material before it, being the joint leases, electricity bill or marriage certificates. No jurisdictional error is made out by Ground 5.

Ground 6

1. In relation to Ground 6, for the reasons already given, there is no substance in the assertion that the Tribunal failed to consider documents that were before the Tribunal. It was not necessary for the Tribunal to refer to every piece of evidence before it and the Tribunal clearly identified the lease and made adverse findings in respect of the criteria under r.1.15A. On the material before the Court those adverse findings were open. The statutory obligations in respect of the presumptions of the Status of Children Act 1996 (NSW) are not presumptions that have application to the Tribunal, which is not bound by the rules of evidence in the conduct of its review.

2. Further, it is apparent that the Tribunal was well alive to the assertion of the child being parented by the sponsor and identified, because of its credibility concerns, an opportunity for the applicants to take the step of obtaining DNA evidence. It was open to the Tribunal to take into account the refusal of the applicants to do so. The other obligations to which counsel has referred under the Education Act1990 (NSW), or under the Family Law Act 1975 (Cth), were not matters raised on behalf of the applicants before the Tribunal. Legal issues of this kind not raised before the Tribunal cannot give rise to any jurisdictional error as the Tribunal correctly identified the applicant’s claims and made findings dispositive of those claims. In substance, Ground 5 and Ground 6 are an endeavour to invite the Court to enter into the merits of the application in respect of adverse findings that were open. No jurisdictional error is made out by Ground 6.

Conclusion

1. The further amended application is dismissed.

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

Date: 18 July 2017