Narayan v Minister for Immigration and Citizenship

MIGRATION REVIEW TRIBUNAL 8 On 30 January 2007 a hearing was conducted during which the appellant and two of his friends gave evidence. 9 On 2 February 2007, the Tribunal wrote to the applicant pursuant to s 359A of the Act and invited him to comment on information provided by him to the Department and to the First Tribunal in light of the evidence he had given to the Second Tribunal. The appellant was also invited to comment on information provided to the Department by the nominator, and information provided in writing by other persons in support of the appellant's application. The appellant was given nine weeks to respond. On 13 March 2007, the appellant's migration agent was granted access to all relevant Department and Tribunal files. The appellant's migration agent responded to the s 359A letter on 11 April 2007, the last day of the nine week period, and submitted that the Tribunal had not satisfied its obligations under s 359A of the Act as it had failed to particularise each individual inconsistency said to arise from the information contained in the s 359A letter. 10 The Tribunal noted that it failed to particularise each individual inconsistency identified in the s 359A letter. It found that it had, nonetheless, properly discharged its obligations under s 359A of the Act as it had ensured, as far as reasonably practicable, that the appellant understood why the information was relevant. 11 The appellant claimed that he was the spouse of the nominator at the time of the application (and that therefore, he satisfied clause 820.211 of the Migration Regulations 1994 (Cth) ("the Regulations"))and that his relationship with the nominator had ceased at the time of the decision. He further claimed that he was the victim of domestic violence. Only a "spouse" can be a victim of domestic violence under the Regulations. Before the Tribunal could determine whether the appellant was a victim of domestic violence, it was first required to determine whether the appellant was the spouse of the nominator at the time of application and therefore satisfied the requirements of clause 820.211 of the Regulations. 12 Under Regulation 1.15A(1)(a), a person is the spouse of another if the two persons are in a "married relationship". Persons are in a married relationship if they are married to each other under a marriage that is recognised as valid for the purposes of the Act (Regulation 1.15A(1A)(a)) and the Minister is satisfied that: there is a mutual commitment to a shared life as husband and wife to the exclusion of all others; that the relationship between them is genuine and continuing; and that the parties live together or do not live separately and apart on a permanent basis (Regulation 1.15A(1A)(b)). 13 In determining whether two people are in a married relationship, the Minister is required to have regard to all of the circumstances of the relationship, including, in particular: · The financial aspects of the relationship (Regulation 1.15A(3)(a)); · The nature of the household (Regulation 1.15A(3)(b)); · The social aspects of the relationship (Regulation 1.15A(3)(c)); and · The nature of the persons' commitment to each other (Regulation 1.15A(3)(d)). 14 The Tribunal considered each of the factors under Regulation 1.15A(3) and concluded as follows: "The Tribunal gives significant weight to evidence that the nominator was under pressure from her family to marry one of a number of potential suitors introduced to her by her parents, that the nominator agreed to marry the review applicant on their first meeting, that the review applicant provided very little evidence of support forthe relationship by the nominator's family, that the parties did not combine their financial affairs although they lived together for two months after the marriage and that the nominator was openly involved with another man only two months after the marriage and claimed that she had been involved in this relationship since before the parties' marriage. The Tribunal also gives significant weight to the apparent lack of emotional support and commitment between the parties after they moved away from the nominator's family in April 1999. The Tribunal is not satisfied on the limited evidence before it that the relationship between the parties was genuine and continuing at the time of application. The Tribunal finds, therefore, that the review applicant was not the nominator's spouse, as defined in regulation 1.15A, at the time of application. The Tribunal finds that the review applicant does not satisfy, clause 820.211 at the time of application." 15 The Tribunal therefore affirmed the decision of the delegate not to grant the appellant a Partner (Temporary)(Class UK) visa or a Partner (Residence)(Class BS) visa. It was not, therefore, necessary for the Tribunal to consider whether the appellant was a victim of domestic violence.

FEDERAL MAGISTRATES COURT 16 On 20 June 2007 the appellant filed an application, which was subsequently amended, seeking judicial review of the Tribunal's decision in the Federal Magistrates Court. The Federal Magistrate accepted that the appellant's contentions were accurately summarised in the First Respondent's contentions as follows: · The Tribunal failed to comply with s 359A of the Act, by failing to particularise the information that would be the reason or part of the reason for affirming the delegate's decision, and the notice was therefore "invalid"; (Grounds 1 and 2) · The Tribunal failed to make specific findings under the headings relating to "the financial aspects of the relationship" and the "the nature of the household", despite the existence of evidence; (Grounds 3 and 4) · In relation to the social aspects of the relationship, the Tribunal's approach in giving significant weight to the lack of support by the nominator's family was "based on conjecture"; (Ground 5) · By relying on the absence of evidence from family or friends about living arrangements, or from the nominator's family regarding the degree of companionship and support, the Tribunal failed to make findings about these matters as they existed at the time of application; (Ground 6) · The Tribunal failed to give reasons for its finding that it was not satisfied that the applicant and nominator lived together as husband and wife; (Ground 7) · In relation to mutual commitment, the Tribunal had failed to consider the evidence and make findings, and gave weight to "post time of application" circumstances; (Ground 8); and · The Tribunal ignored relevant material and relied on irrelevant material, including the nominator's interview and its "own opinion" regarding the lack of support from the nominator's family. (Ground 9)

Alleged failure to make a specific finding - financial aspects of the relationship and the nature of the household (Grounds 3 and 4) 17 The Federal Magistrate did not accept that the Tribunal failed to make findings in relation to the financial aspects of the relationship and the nature of the household. His Honour accepted that the Tribunal did have regard to those matters as required by Regulation 1.15A(3)(a) and (b) and that the Tribunal had considered the major issues raised and evidence adduced on behalf of the appellant. Further, the Federal Magistrate found that the Tribunal was not precluded from having regard to events which occurred subsequent to the date of the visa application. He relied on Bretag v Immigration Review Tribunal (unreported, Federal Court of Australia, O'Loughlin J, 29 November 1991) as authority for this point. His Honour held that "[i]t is ultimately a matter for the Tribunal to make an assessment of the facts and it is entitled to express that assessment in what might be otherwise regarded as somewhat pejorative terms" such as there being "little evidence" to support a claim.

Alleged jurisdictional error (Ground 5) 18 His Honour found that there was no jurisdictional error arising from the weight that the Tribunal gave the evidence when it considered "the voluminous material relied upon by the Applicant" in relation to the social aspects of the relationship. The Federal Magistrate found "no error in the manner in which the Tribunal approached its task having regard to the obligation set out in [Regulation 1.15A3(c)]."

Alleged failure to make a finding - nature of the persons' commitment to each other (Ground 6) 19 The Federal Magistrate noted that the determination of the nature of persons' commitment to each other was "no doubt a very difficult issue for Tribunals to assess." His Honour accepted that the Tribunal was entitled to take into account "the absence of evidence of living arrangements and specifically those arrangements which might reveal whether the parties shared a bedroom or … had lived together "as husband and wife". The Federal Magistrate found that it "was a matter entirely for the Tribunal to make a finding of this manner." His Honour confirmed his earlier view that "in considering circumstances at the time of the application the Tribunal as a matter of law is entitled to consider and as a matter of logic in many cases compelled to consider subsequent events and circumstances when making an assessment of" the nature of the persons' commitment to each other. (Emphasis added).

Alleged failure to give reasons for the finding that the appellant and the nominator did not live together as husband and wife (Ground 7) 20 The Federal Magistrate noted that, although the findings in relation to this criterion were brief, he accepted that those findings "were made after a fairly detailed assessment of the matters referred to by the Respondent pursuant to the various sub-regulations". The Federal Magistrate noted that there appeared to be a lack of corroboration of the assertion by the appellant that the parties did live together as husband and wife and again that it was "a matter entirely for the Tribunal to make an assessment of evidence of this kind which it has done in a manner free of error."

Alleged failure to consider the evidence in making its findings in relation to mutual commitment, alleged engagement in speculations and alleged jurisdictional error (Ground 8) 21 The Tribunal found that the nominator did not have a commitment to a shared life with the appellant to the exclusion of all others at the time of the application. This finding was partly based on the nominator's statements to the Department, which were unable to be tested, as the nominator had not deposed to the statements and did not appear as a witness. The Federal Magistrate accepted, as a matter of law, that the evidence before the Tribunal could include material that was not the subject of evidence on oath. His Honour held that there was "no principle of law which requires the Tribunal to prefer evidence on oath over and above other evidence although normally one might expect evidence on oath which may be tested to have a higher value." In the Federal Magistrate's view, the Tribunal was entitled to take into account all the evidence before it and the findings made by the Tribunal were reasonably open to it on the evidence before it.

Alleged consideration of irrelevant material and failure to consider relevant material (Ground 9) 22 The Federal Magistrate found that the Tribunal's findings in relation to the failure of the applicant to provide evidence in support, by the nominator's family, of the relationship, were made free of error. His Honour found that this evidence was relevant, and that, in having regard to it, the Tribunal did not make a jurisdictional error.

Alleged failure to comply with s 359A of the Act (Grounds 1 and 2) 23 The Federal Magistrate found that the Tribunal had complied with the requirements of s 359A of the Act: the Tribunal had explained "in clear terms" the relevance of the information; the information was properly relevant to the obligation under s 359A of the Act; "the information was a reasonable part of the reason for the Tribunal's decision"; and the information did not fall within any of the exceptions under s 359A(4) of the Act. 24 As each of the grounds for judicial review failed, the appellant's application was dismissed.

APPEAL TO THIS COURT 25 The notice of appeal to this Court was filed on 12 February 2008. The grounds relied on in the appeal are substantially the same as those relied on before the Federal Magistrate. They are that:

1. The Federal Magistrate erred in finding that the Tribunal had made findings in relation to "financial aspects of the relationship" and "the nature of the household" (see Grounds 3 and 4 of the application to the Federal Magistrates Court).
2. The Federal Magistrate erred in finding that no jurisdictional error arose from the weight the Tribunal had afforded the evidence in relation to the social aspects of the relationship. Further, the Federal Magistrate erred in failing to consider the appellant's case that there was no evidence to support the Tribunal's finding on this issue and that the finding was based on conjecture (see Ground 5 of the application to the Federal Magistrates Court).
3. The Federal Magistrate erred in finding that the Tribunal was not in error in having regard to the absence of evidence and subsequent events in relation to the nature of the appellant's and the nominator's commitment to each other. Further, the Federal Magistrate erred in failing to consider the appellant's case that: a) there was sufficient evidence, at the time the appellant's application was made, of the appellant's and the nominator's commitment to each other, for the purposes of regulation 1.15A(d) of the Regulation; and b) the Tribunal's findings in relation to this issue were made in the absence of evidence (see Ground 6 of the application to the Federal Magistrates Court).
4. The Federal Magistrate erred in failing to address the appellant's application ground that the Tribunal failed to consider the evidence when it made its finding concerning whether and, if so, the length of time during which the appellant and the nominator lived together (see Ground 7 of the application to the Federal Magistrates Court).
5. The Federal Magistrate erred in failing to address the appellant's application ground that, in relation to its findings concerning the appellant's and the nominator's mutual commitment to a shared life as husband and wife to the exclusion of all others, the Tribunal failed to consider the appellant's evidence, engaged in speculation and gave significant weight to evidence that post dated the appellant's application (see Ground 8 of the application to the Federal Magistrates Court).
6. The Federal Magistrate erred in failing to respond to the appellant's ground that there was no evidence to support the Tribunal's findings and the Tribunal relied on irrelevant material (see Ground 9 of the application to the Federal Magistrates Court).
7. The findings of the Federal Magistrate in relation to the appellant's ground that the s 359A letter did not respond to the appellant's grounds of appeal in relation to that issue (see Grounds 1 and 2 of the application to the Federal Magistrates Court).
8. The Federal Magistrate erred in stating that the "great deal" of references to the transcript of Tribunal hearing had been made in an attempt to encourage the Federal Magistrates Court to revisit the merits of the application.

Ground 1 26 Under this ground the appellant complains that the Federal Magistrate had been in error in finding that the Tribunal had, in fact, made findings in relation to the financial aspects of the relationship between the appellant and the nominator and on the nature of their household. In its reasons the Tribunal had dealt with these two issues under discrete headings. In dealing with the financial aspects of the relationship it had referred to evidence about the financial positions of the appellant and the nominator, the existence of a joint account, the way in which household expenses were paid and the receipt, by the nominator, of money from her mother. The Tribunal found that there was little evidence that the parties had combined their financial affairs at the time at which the appellant had applied for the spouse visa. It noted that the nominator had continued to receive financial support from her family for her own use. The evidence relating to the nature of the household was sparse. The Tribunal noted that the flat in which the appellant and the nominator lived after they had left the nominator's parents home had two bedrooms and that the appellant claimed that he had done the housework. No findings in terms were made. 27 The argument advanced by counsel for the appellant at the hearing differed from that suggested in the notice of appeal. As argued, the appellant's complaint was not that no findings were made but rather that, in dealing with these two matters, the Tribunal had directed its attention to financial and domestic arrangements between the appellant and the nominator in the weeks and months after the appellant's application had been made. 28 The Tribunal's reasons clearly state that it was directing its attention to the arrangements between the appellant and the nominator at the time - 29 March 1999 - when the visa application was made. At that time the appellant and the nominator were living with the nominator's parents. At that time any joint financial dealings were at an embryonic stage. There was no joint household. The Tribunal looked to subsequent events in an effort to make a judgment about what the relevant arrangements were at the end of March 1999. This it was entitled to do: see Bretag v Immigration Review Tribunal (unreported Federal Court of Australia, O'Loughlin J, 29 November 1991). It was a matter for the Tribunal to determine the weight to be accorded to the limited evidence which was presented to it.

Ground 2 29 The Tribunal dealt with the social aspects of the relationship between the appellant and the nominator in another, discrete, part of its reasons. It noted that they had been married in a traditional religious ceremony. It took into account the evidence of friends of the appellant as to their observations about the relationship between the couple and their friends. The Tribunal, however, noted the absence of any evidence from the nominator or her family to support the visa application or the review application. It therefore observed that there was "limited evidence of support for the relationship from family and friends who attended the wedding." 30 There can be no doubt that the Tribunal took into account the social aspects of the relationship between the appellant and the nominator. The weight it gave to the evidence was a matter for it.

Ground 3 31 In reaching its decision the Tribunal had regard to the degree of commitment between the appellant and the nominator. It accepted that they had lived under the same roof for some months, in the nominator's family home, prior to their marriage. The marriage occurred shortly after the application for the visa was made. The Tribunal was not satisfied that they had a strong mutual commitment to each other. It had regard to a range of evidence (or lack of it) on this point. In particular, it had regard to evidence from the appellant that the nominator had become abusive towards him within a month of the wedding and the evidence of the nominator that she had been involved in a relationship with another man since before her marriage and that the appellant was aware of her relationship with that other man. The Tribunal also noted the absence of supporting evidence from the nominator's family. 32 The appellant complains that the Tribunal concentrated on events subsequent to the visa application to the exclusion of evidence that, at the time at which the application was made, the appellant and the nominator enjoyed a loving relationship. 33 There was conflicting evidence before the Tribunal. The appellant maintained that he and the nominator had a loving and committed relationship between January 1999 and May 1999. The nominator, on the other hand, advised the Department that, throughout this period, she had an ongoing relationship with another man. Whilst the nominator did not give evidence to the Tribunal, the Tribunal was entitled to have regard to her statement to the Department. It was also entitled to have regard to events which occurred after the application had been made in order to form a judgment as to the level of commitment which obtained at the time at which the application was made. There was, therefore, evidence which supported the Tribunal's conclusion. The Tribunal was not obliged to accept the appellant's account of the relationship.

Ground 4 34 This ground is difficult to understand. It complains that the Tribunal failed to consider evidence when it made its finding as to whether and, if so, the length of time during which, the appellant and the nominator lived together. The Tribunal made a clear finding that they lived at the nominator's family home between January 1999 and April 1999 and that they both lived in a flat in Indooroopilly between April and June 1999. The Tribunal was not, however, satisfied on the evidence that they had lived together at either address as husband and wife.

Ground 5 35 This ground relates to the Tribunal's finding that the nominator did not have a commitment to a shared life with the appellant to the exclusion of all others at the time at which the application was made. Again, there was conflicting evidence before the Tribunal from the appellant and the nominator. The significant point which influenced the Tribunal's finding was the ongoing relationship between the nominator and another man during the period during which the appellant and the nominator knew each other. This relationship had been going on for months prior to the date of the visa application. There was, therefore, evidence which the Tribunal was entitled to take into account and which supported its finding.

Ground 6 36 This general no evidence - irrelevant considerations ground was developed in argument. The appellant objected to the Tribunal having regard to evidence that the nominator was under pressure from her family to marry, that the nominator had advised the Department that she had been forced into marriage with the appellant by her parents and that her father wanted her to make a quick decision as to whether or not to marry the appellant. 37 This evidence was not irrelevant. It went to a number of the matters identified in regulation 1.15A(3) including the nature of the relationship between the appellant and the nominator and the level of their commitment to each other.

Ground 7 38 On 30 January 2007 the appellant gave oral evidence to the Tribunal. On 2 February 2007 the Tribunal sent a notice, given under s 359A of the Act, to the appellant's solicitor. The contents of what was a lengthy notice are summarised in the Federal Magistrate's reasons at [59]. It is not necessary to set them out in detail in these reasons. This is because the appellant's argument on this appeal concentrated on the absence of particularity, in the s 359A notice, as to any inconsistencies which the Tribunal considered were disclosed by the evidence which was summarised in the notice. This objection was first taken by the appellant's solicitor in his response to the s 359A notice. In his letter, dated 11 April 2007, the appellant's solicitor said: "The Tribunal says that there are significant inconsistencies in the various accounts of events provide (sic) by the review applicant to various persons. It is for the Tribunal to isolate and particularize those inconsistencies and to advise the review applicant of them and how that information may be the reason or part of the reason to affirm a decision. A wide and generalize (sic) statement such as seen in the notice may not confirm (sic) to the requirement of s 359A of the Act." 39 As refined in argument the point became whether the Tribunal was obliged, by s 359A, to identify, in the notice, not only the information which might be thought to give rise to a finding that there were inconsistencies in the appellant's case but also to particularise those perceived inconsistencies. It was common ground that the Tribunal had not sought to provide such particulars in the notice. What it had done, after setting out the evidence which it had received in relation to a number of aspects of the case, was to advise the appellant, inter alia, that: "This information is also relevant to the review because there are significant inconsistencies in the various accounts of events provided by you to the Department, to the Tribunal or to the Federal Magistrates Court or which have been recounted by other persons to whom you have described the same events. Where there are significant inconsistencies in the evidence provided in support of a claim, an applicant's credibility may be adversely affected. If the Tribunal is not satisfied on all of the evidence before it that you were the nominator's spouse at the time of application, it may affirm the application under review without considering your claim to be a victim of domestic violence." 40 The Tribunal's obligation, under s 359A(1) of the Act, as it stood at the relevant time, was to give the appellant "particulars of any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review … ." 41 The appellant's written submissions appeared to have accepted that a distinction was to be drawn, for the purposes of s 359A, between information considered by the Tribunal and the thought processes of the Tribunal which were founded on that information. Reference was made to VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at [24] and SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [18]. Despite this acknowledgment the appellant contended: "… that inconsistencies cannot remain inconsistencies. It is to be brought within the scope of information and this can only be achieved if the Tribunal gives particulars of these inconsistencies and explains its relevance which may well differ from Tribunal member to Tribunal member." 42 The submissions concluded by referring to some words of Allsop J in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214 where his Honour, in dealing with s 424A of the Act, said (at [206]) that: "Also, the fact that appraisal, thought processes and determination are not information does not mean that they are not relevant to the operation of s 424A. The thought processes of the Tribunal may reveal the relevance of information for s 424A(1)(b) and may assist in understanding what the Tribunal must say or do to comply with s 424A(1)(a), (b) or (c)." The appellant contended that "[i]f such a duty is cast on the Tribunal in respect of information, it cannot be said that no similar duty is cast on the Tribunal in respect of inconsistencies." 43 The authorities referred to by the appellant do not support the proposition that the Tribunal is required to particularise any inconsistencies which it discerns when considering the evidence before it and to incorporate such particulars in any notice given under s 359A of the Act. In SZBYR the joint judgment (at [18]) said that: "… However broadly "information" be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant "information" was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself." (Emphasis added). The distinction between "information" and inconsistencies emerging from such information was referred to by Siopis J in SZIWL v Minister for Immigration and Citizenship [2007] FCA 1260. His Honour said: "[20] I understood the appellant's submission to complain that he had not been given an opportunity to comment in writing upon what he regarded as findings of inconsistencies in his evidence, in the two respects identified; which he said was "information" to which s 424A(1) applied because it was the reason, or part of the reason, for the Tribunal affirming the decision under review. [21] In my view, the appellant's submission is not to be accepted. The reason why the Tribunal affirmed the decision was that it disbelieved the appellant's evidence because of the implausibility of that evidence, rather than as the appellant characterised it, the "inconsistencies" in his evidence. But whether the appellant's evidence was disbelieved due to its "implausibility" or "inconsistency" is naught to the point, because it is accepted that a finding that evidence is disbelieved on the grounds of implausibility or inconsistency as part of the subjective appraisal made by the Tribunal which does not comprise "information" for the purpose of s 424A(1) of the Act (VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471, SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR at 616, at [18])…" The appellant was unable to point to any decision which had held that it was necessary for inconsistencies to be particularised in notices given under s 359A or 424A of the Act. 44 It follows, in my opinion, that the Tribunal did not err by failing to give notice of the inconsistencies which it ultimately found to have been disclosed by the evidence before it.

Ground 8 45 This ground was not pressed in argument. Whether or not the Federal Magistrate was right in concluding that an attempt had been made by the appellant to have the Federal Magistrates Court revisit the merits of the appellant's application before the Tribunal, the observation did not evidence reviewable error on the part of the Federal Magistrate or jurisdictional error on the part of the Tribunal.

DISPOSITION 46 The appeal should be dismissed with costs. I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey.

Associate: Dated: 11 July 2008 Counsel for the Appellant: Mr T. A. Fernandez

Solicitor for the Respondent: Australian Government Solicitor