You v Minister for Immigration & Anor [2007] FMCA 1064

The Tribunal found this a difficult case. There was much that was adverse that emerged from the Department's home visit on of 6 February 2006. Furthermore it would seem that the sponsor mislead the Departmental officers by stating he was at home with his wife, when they were at the home with the visa applicant and the sponsor was not there. He later admitted to an argument with the visa applicant's aunt, which meant he had temporarily left the premises where his wife lived. The long absence of the sponsor overseas away from his wife, while partly understandable with his mother so ill, also created an uneasy impression of how committed the couple were to each other.

There was confusion as to where the couple did live, and how long they stayed at the various places. It was not clear how long the visa applicant stayed at her aunt's place, or how long she and the sponsor were living apart, and indeed there was no evidence that at that stage they were living together.

The Tribunal gave weight to the fact that there was a paucity of evidence. While the Tribunal accepts that both the visa applicant and the sponsor may not be well educated and may not be able to communicate well they are required to produce basic evidence to support the assertion of a genuine spousal relationship, especially in view of the adverse material associated with the home visit. The evidence produced top the Tribunal was very recent, and was not in itself substantial or convincing. For example while there was a joint bank account opened, it was only opened in May 2005, there was an opening deposit of $20, no activity and a closing balance of $15.00 on 29 July 2005. The situation in regard to the motor vehicle was also puzzling, as an apparently poor couple were able to pay cash for a car, spending something in the area of $17,000.00. The visa applicant indicated that the money had come from Cambodia, but the details of this were not made clear. The Centrelink correspondence does not provide evidence of a spousal relationship. The existence of joint names on the rental agreement was not in itself evidence that they cohabit at that address. There was no supporting evidence, statements from friends, family or neighbours to indicate that they were living at that address. The photographic evidence was very limited and only showed four situations with the couple. There was no substantial evidence of social activity. It was hard to ascertain a strong feeling of commitment between the couple.

The Tribunal is not satisfied that the parties at the time of decision the applicant and her sponsor did have a mutual commitment to a shared life as husband and wife to the exclusion of all others, and that the relationship is genuine and continuing. They therefore do not satisfy the requirements of rr.1.15A(1A)(b)(i) and 1.15A(1A)(b)(ii) for a married relationship.

In making the decision, the Tribunal recounted that:

The Tribunal has before it the department's file relating to the applicant. The Tribunal also has had regard to the material referred to in the delegate's decision, and other material available to it from a range of sources.

A significant piece of evidence related to a home visit made by officers of the department on 8 February 2006. The departmental officers found the visa applicant present at the nominated residence but not her spouse and sponsor. The officers formed the view that the applicant was resident at the address with her aunt and aunt's family but not with her sponsor. When the sponsor was rung from the premises during the visit, he stated persistently that he was at the premises with the visa applicant (presumably, unaware that the departmental officers were telephoning from the premises).

A number of matters with respect to the relationship and the conduct of the sponsor were the subject of questions of the applicant, which are recounted at page 5 of the decision as follows:

Asked why the sponsor travelled so much she said it was because his mother was sick and he spent time looking after her and also he was a good singer and sang in Cambodia and was hoping for a career as a singer.

The visa applicant said she came to Australia in 2003 and lived with her aunt and the aunt's family. She said the sponsor went back and forth to Cambodia. She said she also did farm work in Australia, she was not sure where it was but it was a 45 minute drive from Melbourne and she picked seasonal vegetables. She said she now worked in a factory doing packaging. She said she stayed at her aunt's house for a year and then moved to their flat.

The tribunal pointed out he had only moved to the flat in June 2006, and she said they lived at a friend's place after they moved from the aunt's place. She said her husband had an argument with the aunt and that is why he moved out.

Asked about the visit by the Departmental officers on 8 February 2006 the visa applicant said that she stayed at home, and that the sponsor had moved out following the argument, and stayed with a friend for a short period.

It appears that the Tribunal member also made inquiries of the applicant's spouse and sponsor, which are recounted as follows:

Mr Makara Heng gave evidence. He said he was an Australian citizen, the husband of the visa applicant and currently unemployed. He recounted the history of the relationship through him meeting the visa applicant's aunt and the exchange of photos. He said he met here in April 2002 and decided on that day he would marry her. They were married on 20 December 2002. He stayed with her. He said his mother lived near the visa applicant's family. He said his mother had a road accident two years ago. He said he had a younger sister and she lived in Australia. He said he has not seen his father for three years. He said his mother was being looked after by a niece and nephew in Cambodia who came from the countryside to look after her.

Asked about the home visit the sponsor said at the time he had an argument with the visa applicant's aunt and had moved out and stayed with a friend. When asked why he told the officers he was living at home he said he told them he "stayed at home". He said he had been overseas a lot but that was because of his sick mother and also to further his singing career. He said he wanted to care for his mother.

When making application for review of the Migration Review Tribunal, the applicant completed a printed form headed up "Application for Review of the Migration Review Tribunal", with the code "N1". Section G of the form contains the relevant passage, and is in the following terms:

SECTION G DECISION TO BE REVIEWED.

In this section, you need to give the Tribunal information about the decision that you want reviewed.

Tick one of the following two boxes:

[Rho] I have attached a copy of the DIMIA decision and covering letter (go to section H)

The details of the home visit are set out in slightly greater detail in the decision of the delegate as follows:

In consideration of this grant, on 8 February 2006, DIMA case officers conducted a home visit to the couple's nominated pace of residence. Ms You was present at the premises and she positively stated that she and Mr Heng reside at the address. She stated that Mr Heng had gone out to visit a friend this evening, but was unable to name which friend he was visiting on this occasion.

Ms You obliged the case officers by showing them through the house. The case officers did not sight sufficient evidence to indicate that Mr Heng was also residing there. The evidence sighted, however, was consistent with Ms You's statements that she resides at the house with her aunt's family (consisting of her aunt, uncle and their two children).

During the inspection of the premises, Ms You was unable to show many items belonging to the sponsor. In the bedroom claimed to be occupied by the couple, there were no items directly referable to Mr Heng. Ms you showed the case officers three shirts claiming they belonged to Mr Heng, however they may have been her own or belonging to her uncle. She was unable to show any other items of clothing, stating that Mr Heng had recently returned from overseas and had left his clothing at a friend's house. Again, she could not recall which friend, nor the friend's address. When pressed for details, she led the case officers to a store-like room a the back of the house, and showed some male clothing there, but again it would be very easy to suspect that they belonged to Ms You's uncle rather than Mr Heng. She also showed two bottles of aftershave or eau de cologne standing on the side of her dressing table, however the case officers were unable to verify whether they were male of female items, and whether they would in fact have belonged to Mr Heng. There were no documents in the sponsor's name at the house. The case officers sighted two or three wedding photos of the couple, but they were the only photos Ms You had of her husband or with her husband. This contrasted unfavourably with the numerous photos of Mr You and her friends that were found in the room.

The only other room with male clothing was positively identified by Ms You's uncle as his own. There were no other bedrooms that may be said to have been occupied by the sponsor.

Overall, the officers were not satisfied that the sponsor resided at this address with Ms You. This was further confirmed when Mr Heng was contacted by telephone from the premises, and he persistently claimed that he was at the premises with his wife. When this misunderstanding was resolved, Mr Heng was unable t make any accurate statements in relation to Ms You's activities of the day.

The grounds of the application are as follows:

[1] The decision of the Tribunal was made without jurisdiction or is affected by an error of jurisdiction.

a. The Tribunal acted in breach of s.359A of the Migration Act in no advising the applicant in writing that a reason or part of the reason for the decision would be;

i. adverse information said to arise from the home visit conducted on 6 February 2006;

ii. information that the sponsor, who was not present when the home visit took place, mislead Departmental officers in a telephone conversation which took place between those officers and the sponsor during the home visit;

iii. information that the sponsor had been absent from the applicant wife for long periods during their marriage

b. The Tribunal erred in failing to consider and/or make findings and/or set out reasons in relation to each of the matters referred to in Reg. 1.15A(3) of the Migration Regulations 1994, which matters were relevant considerations which the Tribunal was obliged to take into account;

c. The Tribunal erred requiring the applicant and sponsor to demonstrate that there was a "strong feeling of commitment between the couple", whereas the true test is that the parties simply are to have a mutual commitment, which may be of varying degrees;

d. The Tribunal erred in failing to consider and/or make any finding in relation to the application of Reg. 1.15A(5) of the Migration Regulations.

In support of ground 1, the applicant refers to the information about the home visit that was adverse to the applicant and clearly relied upon by the Tribunal as a significant part of the reasons for the refusal of the application.

The applicant argues that a failure to comply with s.359A results from jurisdictional error: see SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] 215 ALR 162. The applicant relies upon the decision of the Full Court of the Federal Court in SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2, but in particular the comments by Weinberg J at [163] that the provision should be given a generous reading and that it is not necessary that the information be the key or central reason for a decision, but simply be a part of that reason.

With respect to the latter proposition, the applicant relies upon the comments of Alsop J in SZEEU, at [216], where his Honour said:

[216] That said, it is necessary to recognise the guidance that one nevertheless receives from aspects of [33] in VAF_. One always needs to analyse and interpret the reasons of the tribunal in order to understand the reason for the ultimate reason or conclusion of the lack of satisfaction of the existence of protection obligations. Merely because something is contained in the text of the reasons of the tribunal which involves "information" does not conclude the question whether it was (and, in the relevant sense, would be) a part of the reason for affirming the decision. The whole of the written reasons must be analysed and interpreted in their context to assess why it was that the tribunal acted as it did (and so, in the relevant sense, to assess what would be, prior to making the decision, the reason or a part of the reason). Having thus ascertained the reason or reasons (if there be more than one) why the tribunal was not relevantly satisfied, any information that was (and thus, in the relevant sense, would be) a part of the reasoning process to explain such reason engages the operation of s 424A, without any additional requirement (for which_ Paul and VAF appear to call) that the relative importance of the information to the reasoning process be assessed to form a judgment as to whether fairness requires the engagement of

s 424A. The above tasks of assessment or interpretation of the tribunal's reasons, of ascertaining what was any reasoning process and of assessing the relevance of any information thereto may not be straightforward and may lead to conclusions about which minds may differ.

The applicant says that the information relating to the home visit was not provided by the applicant for the purpose of the application before the Migration Review Tribunal, rather it was inquiries of the department and emanated from the departmental file.

Section 359A provides:

359A [Applicant must be given certain information] (1) Subject to subsection (2), the Tribunal must:

(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, 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) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and

(c) invite the applicant to comment on 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.

(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; or

The respondent points out that a letter was sent to the applicant, pursuant to s.359, on 5 May 2006, inviting the applicant to provide information. However, this letter did not identify any of the relevant information from the home visit. This letter would not fulfil the requirements of s.359A.

In order to overcome the fact that the Tribunal did not send a 359A letter with respect to the home visit information, the respondent argues that the information was, in substance, contained in the decision of the delegate, which was provided by the applicant that the applicant gave for the purpose of the application' when she completed section G of the review application form.

In this regard, counsel for the minister relied upon the comments of Moore J at 91 in SZEEU, where his Honour said that information from another source confirmed by the applicant at the hearing is sufficient to be information from the applicant. A similar comment was made by Weinberg J at paragraph [179], where his Honour said:

[179] In the same way, the present position can lead to odd results. As can be seen from the appeal in SZEEZ_, if an applicant makes a statement during the course of an airport interview that is inconsistent with later evidence given at a hearing, s 424A(1) requires that written notice be given of the possible use of that statement to draw inferences against the applicant. If, however, the applicant repeats the earlier statement at some stage during the course of the hearing, and adopts it as true, and then subsequently resiles from that statement, the tribunal is not obliged to afford the applicant an opportunity to comment upon the discrepancy: see generally_ SZEFM v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 78 per Bennett J. This is because the adoption of the earlier statement brings it within the scope of the s 424A(3)(b) exception. If, however, the tribunal proposes to use the earlier statement as the "reason", or "a part of the reason" for affirming the decision under review, rather than the later adoption, it must comply with s 424A(1).

Counsel for the minister also referred to SZDPY v The Minister for Immigration & Indigenous Affairs [2006] FCA 627, where an applicant provided his educational history to the Tribunal member, which was found not to be information that required a letter under the equivalent of 359A even though it was available in earlier documents. In that case, however, Kenny J concluded that the applicant did not merely adopt the information but provided it separately and specifically. Counsel submits that the provision of the decision in the application shows reliance upon the decision of the delegate: (Minister for Immigration & Multicultural Affairs v Al Shamry [2001] FCA 919), and that, therefore, the previous decision has the character of information given for the purposes of the application within the meaning of s.359A(4): see M55 v Minister for Immigration [2005] FCA 131.

In supplementary submissions, the applicant's counsel provided a copy of the file note of the department relating to the home visit, provided by the respondents, which is more expansive than the material set out in the decision of the delegate.

Whilst there is no specific evidence as to whether or not the Tribunal member had regard to this document, it was part of the file referred to in the decision. Whether it is part of the reasons for the conclusions reached by the Tribunal is unclear. There is a clear inference that the Tribunal member had regard to this material, as the Tribunal member formed the view that the sponsor was attempting to mislead departmental officers, whereas the delegate had taken the view that there was only a misunderstanding in the telephone conversation.

Counsel for the applicant also referred to the recent decision of Raphael FM in SZAKT v The Minister for Immigration & Anor (No.2) [2007] FMCA 51. In that case, his Honour considered a claim by an infant which referred to a previous claim by the infant's parents. It was argued before Raphael FM that the reference to the parents' claim included reliance upon an adverse decision with respect to the parents' claim. His Honour said:

[11] If I am wrong about whether the applicant put the files of the delegate and the RRT in his parent's case before the Tribunal and did so by the response made in section D then I must consider whether or not putting the file included putting the facts of the Tribunal's rejection of his parent's claims and the reasons therefore. To my mind that would be considered an irrational thing to do. Why would an applicant be supporting his claim for refugee status with a refutation of his parent's claim upon which he relies. I cannot accept that that was the intention at all. At most it could be said that the applicant intended to put his parent's grounds for claiming asylum to the Tribunal and asked that those be looked at afresh through eyes attuned to his own case. In those circumstances the decision of the other Tribunal and the reasons for that decision, in particular the references to the parent's credibility must constitute information which should have been provided to this applicant by way of a s.424A letter.

Similarly, in SZCDA v The Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 1374, Conti J concluded that a reference to an earlier decision about which the appellant said:

[18] ...

'[w]e are deeply aggrieved by the decision made by the case officer of the Department of Immigration & Multicultural Affairs' ...

was not reliance upon the decision which relieved the Minister of the requirement of sending a letter pursuant to s.424A (the equivalent to s.359A in this case).

In SZFTM v The Minister for Immigration & Anor [2007] FMCA 85, a comment in an application please see my file in DIMIA was found to be sufficient to incorporate the information in the file.

In SZGGT v The Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 435, Rares J considered a letter in support of an application for review by the Refugee Review Tribunal which referred to a previous explanation in a previous statement and found that this incorporated the contents of that information into the material relied upon by the applicant in the case. Similarly, in VUAV v The Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1271, Merkel J found that a reference 'Please refer to my previous statement for further information' incorporated that information sufficiently to overcome the need for a notice under the section.

In this case it appears to me that a fair reading of Section G of the application form is that its purpose is to identify the particular decision that the applicant is challenging. It could not be said that this indicates that the applicant was relying upon the information about the home visit simply because she was seeking to appeal from the decision of the delegate. The decision of the delegate was attached for the purpose of identifying it as a decision to be appealed from, not to rely upon the evidence referred to in it. The whole purpose of the application form is to challenge the very decision the Minister says the applicant should be taken to be relying upon.

In these circumstances, I am not persuaded that the Tribunal did not have to comply with s.359A with respect to this information. I therefore find that this ground is made out.

In support of Ground 2 the applicant argues that the tribunal member failed to have regard to all of the elements of the definition of 'spouse' set out in r.1.15A(3). The regulation requires the Minister to have regard to the Minister must 'have regard to all of the circumstances of the relationship', and then lists a large number of factors that must be included in the relevant circumstances.

The Tribunal did not list each item from the regulation and specifically address it. However, this is not necessarily required for a proper decision. There was a paucity of evidence before the Tribunal about a number of the matters listed in the regulation. The Tribunal did have regard to the facts and circumstances before that related to the circumstances in the regulation. In these circumstances I find no error.

In support of this ground, the applicant refers to the Tribunal's findings that the Tribunal had an 'uneasy impression' about the level of commitment the applicant had to her sponsor. The applicant also referred to the comment that the Tribunal found it 'hard to ascertain a strong feeling of commitment between the couple'.

The relevant part of the regulation is reg.1.15A(1A)(b)(i), which provides:

1.15 [Spouse]...

(1A) Persons are in a married relationship if:

(a) they are married to each other under a marriage that is recognised as valid for the purposes of the Act; and

(i) they have a mutual commitment to a shared life as husband and wife to the exclusion of all others

The applicant says that the Tribunal has, therefore, failed to ask itself the correct question, which amounts to a jurisdictional error.

Counsel for the Minister suggests that the Tribunal was merely summarising its findings on the evidence and expressing, perhaps not as accurately as it may have done, the difficulties it found with the evidence before it.

The difficulties with the test relating to the 'commitment' of parties are that it becomes very difficult to dissect the level of commitment that may be required. However, it is common experience that spouses in different relationships demonstrate palpably different levels of mutual commitment to each other, ranging from barely sufficient to enable a marriage to subsist to levels of commitment akin to devotion.

Ultimately, it is difficult to avoid the conclusion that the Tribunal member was looking for more than a commitment, but a 'strong commitment', on the part of the parties. However, this must be seen in the context of a lack of evidence to satisfy other considerations in reg.1.15A. On a fair reading of the passage, it appears to me that the Tribunal member was contemplating whether or not the levels of commitment between the parties, in an emotional sense, were sufficiently strong that, despite an absence of other material with respect to the balance of the considerations, the Tribunal member was still able to conclude that there was a spousal relationship as required by the regulation.

In coming to this conclusion, I am mindful of the comments of the High Court in Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 that:

[31] ... the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.

In these circumstances, I am not satisfied that this ground is made out.

In the circumstances, the applicant has been successful with respect to the failure of the Tribunal to provide the home visit information under cover of the letter pursuant to s.359A. Counsel for the minister argues that there were sufficient other bases for the findings of the Tribunal to justify the application being dismissed in any event. I am not so persuaded.

The home visit incident was clearly a significant part of the evidence before the Tribunal, in a case that called for the consideration of a large number of factors surrounding the relationship of the parties. It is not possible in the context of this case to say that this part of the evidence was not significant, or indeed possibly the turning point that made the difference to the Tribunal member's considerations.

Regulation 1.15A(5) provides as follows:

1.15A [Spouse] ...

(5) If 2 persons have been living together at the same address for 6 months or longer, that fact is to be taken to be strong evidence that the relationship is genuine and continuing, but a relationship of shorter duration is not to be taken not to be genuine and continuing only for that reason.

The applicant argues that the Tribunal member failed to have regard to the effect of this regulation in making the decision.

There was little evidence available to the Tribunal about the nature of the parties' living arrangements. The evidence that was available to the Tribunal, from the home visit, indicated that they were not living together at that time. There was also evidence of extensive periods of separation. There does not appear to have been evidence before the Tribunal to show that the parties had in fact been living together for the requisite period to enliven the operation of reg.1.15A(5).

There is no requirement upon the Tribunal to obtain further evidence or make inquiries. It is open to the Tribunal to make a decision based upon the limited material it had before it, which it did in this case. In these circumstances, it cannot be said that the Tribunal erred in failing to have regard to the specific provision.

In these circumstances, I am not satisfied that this ground is made out.

In these circumstances, it is appropriate that certiorari and mandamus follow.

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Riethmuller FM