FEDERAL COURT OF AUSTRALIA

Mohamud v Minister for Immigration, Citizenship Migrant Services and Multicultural Affairs [2020] FCA 369

ORDERS

THE COURT ORDERS THAT:

1.    The appellant has leave to rely on the further ground articulated during the hearing.

2.    The appeal be dismissed.

3.    The appellant pay the first respondent’s costs, such costs to be taxed in default of agreement.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

DAVIES J:

1    The appellant has appealed a decision of the Federal Circuit Court of Australia (FCC) dismissing his application for judicial review of a decision of the second respondent (the Tribunal) which affirmed a decision of a delegate of the first respondent (the Minister) not to grant the appellant a Partner (Temporary) (Class UK) (Subclass 820) visa (temporary partner visa).

2    The appellant, who was born in Somalia and is a citizen of Finland, lodged an application for a partner visa in December 2014. The appellant was sponsored by his wife (the sponsor). In January 2016, the sponsor withdrew her sponsorship of the appellant and advised the Department of Immigration and Border Protection (now the Department of Home Affairs) (the Department) that she had become aware that the appellant had provided false information on his visa application. The sponsor made a statutory declaration in which she stated that she had become aware on 17 December 2015 that the appellant was in a relationship with a woman in the United Kingdom (the UK woman), who had a three year old child by him. The sponsor stated that the UK woman told her of the relationship and the child, of the contact they had had since 2013, that she (the UK woman) was unaware of the appellant’s marriage to the sponsor, and of the appellant’s plans to sponsor the UK woman once he had been granted permanent residency in Australia. She further stated that the next day, the appellant removed himself from the house he shared with her and she had not had any contact with him since that time. On 3 March 2016 the appellant provided further information in support of his visa application and advised the Department that he and the sponsor were in a genuine relationship until 18 December 2015 when she “drove him out of their marital home”, claiming that the sponsor had been “very dictatorial” in the relationship. A delegate of the Minister refused the appellant’s application for a temporary partner visa on 7 April 2016. The delegate was not satisfied that the appellant and the sponsor were in a spousal relationship at the time of the visa application and accordingly found that the appellant did not satisfy the requirements of cl 820.211 of the Migration Regulations 1994 (Cth) (the Regulations).

3    The appellant applied to the Tribunal for review of the delegate’s decision. In May 2017, the Tribunal affirmed the decision under review. The Tribunal found there was limited evidence of any pooling of financial resources or sharing of day-to-day household expenses. The Tribunal observed that it appeared that the sponsor was financially supporting the appellant during their marriage since the appellant had not been working, although there was also evidence that the appellant provided some financial assistance for the sponsor and her family through sale of assets in Finland and from community donations in Australia. In considering the nature of the household, the Tribunal accepted that the appellant and sponsor had resided under the same roof and during that time they shared household responsibilities. In relation to the social aspects of the relationship, the Tribunal accepted that, at the time of their marriage in 2014 and in the period following, the appellant and sponsor presented as a married couple and were seen as, and considered to be, a married couple by others. The Tribunal further accepted that others believed them to be in a genuine and committed relationship.

4    In considering the nature of the persons’ commitment to each other, the Tribunal recounted the appellant’s and the sponsor’s evidence and put information to the appellant pursuant to s 359AA of the Migration Act 1958 (Cth) (the Act), including the statutory declaration made by the sponsor in relation to the UK woman and her three year old child by the appellant. The Tribunal did not accept the appellant’s explanation that he did not declare his relationship with the UK woman as he had no relationship with the child. Nor did the Tribunal accept the appellant’s claim that the sponsor knew of the existence of the appellant’s child in the UK and told him not to declare it in his application for a partner visa. The Tribunal considered that the timing of the sponsor indicating she became aware of the appellant’s UK relationship and the appellant leaving the residence they shared together strongly indicated that the sponsor was unaware of the relationship and its ongoing nature until a conversation with the UK woman. In his application, the appellant did disclose that he had a son in Finland, but the Tribunal also did not accept the appellant’s evidence about the nature of his relationship with the mother of that child, who was still in Finland, or his involvement with the child from that relationship. Overall, the Tribunal found the appellant’s evidence as to his previous relationships “convoluted and evasive” and did not accept as credible his claims to have had little involvement with the woman in Finland and to have had little contact with the woman in the UK. The Tribunal found that the appellant’s evasiveness was for the purpose of minimising his previous relationships in an attempt to convince the Tribunal that his relationship with the sponsor was genuine. In reaching that conclusion, the Tribunal placed weight on the sworn statement of the sponsor. The Tribunal accepted that the appellant and the sponsor were married for just over 12 months at the time of separation and that they lived together during that time and engaged in social activities together, but found that the appellant’s relationship with at least one other person at the time that he entered into the relationship with the sponsor indicated that “he did not have a commitment to the relationship to the exclusion of other partners or saw it as being genuine and continuing or long term”.

5    Ultimately, the Tribunal found that many aspects of the relationship between the appellant and the sponsor were problematic and was not satisfied that, at the time of the visa application, the parties had a mutual commitment to a shared life as husband and wife to the exclusion of all others and was not satisfied that the relationship was genuine and continuing.

6    Five grounds of review were relied on in the court below. Ground 1 asserted a failure by the Tribunal to consider “all the materials”. The FCC rejected that ground, concluding that the Tribunal had regard to each of the specified criteria in reg 1.15A of the Regulations in determining whether or not the appellant was the sponsor’s spouse and had taken into account the relevant circumstances falling outside the specified criteria in reg 1.15A of the Regulations. The FCC found that the Tribunal made all of the factual findings necessary to identify what all the circumstances of the relationship were when making a determination as to whether the appellant was the sponsor’s “spouse”: Mohamud v Minister for Immigration & Anor [2019] FCCA 1538 at [46].

7    Ground 2 alleged that the Tribunal irrelevantly considered and relied upon the sponsor’s statutory declaration. The FCC rejected that ground, holding that the evidence of the sponsor was a critical consideration for the Tribunal to have regard to, as it went to the criteria the Tribunal had to consider in determining the appellant’s claim: [53].

8    Ground 3 asserted that the Tribunal failed to make a fair decision. The FCC considered this ground was no more than a plea for a different outcome more favourable to the appellant and thus a plea for impermissible merits review, and there was nothing in the Tribunal decision which would indicate any legal unreasonableness in the decision reached: [61]–[63].

9    Ground 4 alleged there were misunderstandings or errors in interpretation of the appellant’s evidence at the Tribunal hearing. The FCC rejected that ground, finding there was nothing in the form of a transcript of the Tribunal hearing before the Court that would enable it to determine whether there were misinterpretations or inadequate interpretations and, if they did occur, whether they were material to the outcome of the Tribunal decision: [67(e)].

10    Ground 5 alleged that there was a fraud on the Tribunal because the appellant’s migration agent failed properly to explain the sponsor’s sworn declaration to the appellant. The FCC rejected that ground as establishing jurisdictional error, holding that mere negligence or incompetence or a simple failure to inform is insufficient to support jurisdictional error: [70]. To the extent that the ground could be taken to be an allegation of third party fraud on the Tribunal, the primary judge found that it was not made out.

11    The amended notice of appeal raises two grounds as follows:

1.    The Administrative Appeals Tribunal (“AAT”) failed to make findings on the relevant matters prescribed under reg. 1.15A of the Migration Regulations 1994.

Particulars

a.    In reaching its ultimate conclusion at [64] that the Applicant and Sponsor did not have a mutual commitment to a shared life together as husband and wife to the exclusion of all others, the Tribunal failed to apply the relevant test. The Tribunal applied a test that allowed commitment elements to be satisfied by way of alternative elements whereas the relevant test required both elements to be satisfied.

2.    Furthermore, the AAT misdirected itself about the question it had to answer. At [63] the AAT finds that: the Applicant's relationship with at least one other person at the time he entered into his relationship with the sponsor indicates that he did not have a commitment to the relationship to the exclusion of other partners or saw it as being genuine and continuing or long term. However the correct question to ask according to Section 5F of the Migration Act 1958 is whether, at time of lodgement of the Partner visa application, the Applicant and Sponsor were in an mutual [sic] commitment to a shared life as a married couple to the exclusion of all others and were in a relationship that is genuine and continuing.

12    At the hearing of the appeal, the appellant applied to add a further ground of appeal as follows (ground 3):

The court below erred in failing to find that the second respondent (AAT) failed to:

(a)     notify the appellant of the identity of the alleged woman in the United Kingdom and her son; and

(b)    identify an objective error on the face of the sponsor’s declaration of 29 January 2016.

Particulars

1.    The declaration claims the woman in the United Kingdom had a three year old child to the appellant in December 2015, and later claims that the woman in the United Kingdom first met the appellant in 2013, less than three years prior to December 2015.

13    The application was opposed by the Minister.

14    The criteria for the grant of a temporary partner visa are contained in Pt 820 of Sch 2 to the Regulations. Clause 820.211(2)(a) of the Regulations requires that, at the time the visa application is made, the applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. Clause 820.221 requires that, at the time of the decision, the visa applicant either continues to meet the requirement in cl 820.211(2)(a) or meets the alternative criteria in sub-cl (2) or (3). The term “spouse” was defined in s 5F of the Act at the relevant time as follows:

(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.

15    Regulation 1.15A of the Regulations provides:

(1)     For subsection 5F(3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5F(2) (a), (b), (c) and (d) of the Act exist.

(2)     If the Minister is considering an application for:

(a)     a Partner (Migrant) (Class BC) visa; or

(b)     a Partner (Provisional) (Class UF) visa; or

(c)     a Partner (Residence) (Class BS) visa; or

(d)     a Partner (Temporary) (Class UK) visa;

the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).

(3)     The matters for subregulation (2) are:

(a)     the financial aspects of the relationship, including:

(i)     any joint ownership of real estate or other major assets; and

(ii)     any joint liabilities; and

(iii)     the extent of any pooling of financial resources, especially in relation to major financial commitments; and

(iv)     whether one person in the relationship owes any legal obligation in respect of the other; and

(v)     the basis of any sharing of day-to-day household expenses; and

(b)     the nature of the household, including:

(i)     any joint responsibility for the care and support of children; and

(ii)     the living arrangements of the persons; and

(iii)     any sharing of the responsibility for housework; and

(c)     the social aspects of the relationship, including:

(i)     whether the persons represent themselves to other people as being married to each other; and

(ii)     the opinion of the persons’ friends and acquaintances about the nature of the relationship; and

(iii)     any basis on which the persons plan and undertake joint social activities; and

(d)     the nature of the persons’ commitment to each other, including:

   (i)     the duration of the relationship; and

(ii)     the length of time during which the persons have lived together; and

(iii)     the degree of companionship and emotional support that the persons draw from each other; and

(iv)     whether the persons see the relationship as a long-term one.

…

16    In light of the mandatory language in sub-reg (2), each of the matters listed in reg 1.15A(3) must be considered in assessing whether two people are in a married relationship as that expression is defined in s 5F.

17    Grounds 1 and 2 can be considered together. Those grounds are directed to [63] of the Tribunal’s reasons. At [63] the Tribunal stated:

The couple were married for just over 12 months at the time of the separation. The Tribunal is prepared to accept that they lived together during that time and engaged in social activities together. The Tribunal accepts the [appellant] had some involvement with the sponsor’s children in that time as they lived in the same household. However, the [appellant’s] relationship with at least one other person at the time her entered into his relationship with the sponsor indicated that he did not have a commitment to the relationship to the exclusion of other partners or saw it as being genuine and continuing or long term.

18    It was contended that the Tribunal misdirected itself about the question it had to ask because it used the word “or” when the correct question required consideration of the issue of mutual commitment “and” whether the relationship was genuine and continuing. It was further submitted that the Tribunal introduced an additional element, “long term” which appeared to be an alternative either to the “genuine and continuing” element or the “continuing” element. Both grounds are a misreading of [63]. Paragraph 63 must be read with [64] where the Tribunal stated:

The Tribunal acknowledges that many aspects of the relationship point to its genuine nature. The Tribunal found others to be problematic. Overall and having regard to the circumstances of this relationship, the Tribunal is not satisfied the [appellant] and sponsor have a mutual commitment to a shared life together as husband and wife to the exclusion of all others. The Tribunal is not satisfied the relationship is genuine and continuing.

19    On a fair reading of [63] and [64], it is clear that the Tribunal treated each of the statutory elements—namely a mutual commitment to a shared life as husband and wife to the exclusion of all others, and a genuine and continuing relationship—as cumulative, not alternative requirements. This is made clear in [64]. No error is demonstrated in the application of the statutory test.

20    Further, by reg 1.15A(d)(iv) the Tribunal, for the purposes of assessing each of the elements, was required to consider whether the persons saw the relationship as a long-term one. The Tribunal did not introduce an additional element but rather, correctly took into account whether it was satisfied that the appellant saw the relationship with the sponsor as long-term.

21    As to proposed ground 3, since it does not raise an entirely new issue which was not agitated in the court below, the appellant should have leave to amend the notice of appeal to add the further ground. Ground 3, however, has no merit.

22    In the court below, the corresponding ground was a claim that the Tribunal irrelevantly considered and relied upon the sponsor’s statutory declaration: [7] above. The FCC rejected that ground. At [52]–[53], [56] the FCC stated:

The Tribunal placed weight on [the sponsor’s] Statutory Declaration: CB 285 at [59], after raising a number of concerns regarding the credibility of the [appellant’s] evidence, including referring to the transcript of proceedings in the Magistrates Court of Western Australia hearing conducted on 6 February 2017 where a number of statements in the transcript contradicted what the [appellant] had submitted to the Tribunal, including his statements as to his ongoing contact with his child from the relationship with [the sponsor].

The evidence of [the sponsor] was therefore a critical consideration for the Tribunal to have regard to as it went to the criteria the Tribunal had to consider in determining the [appellant’s] claim.

…

Where a purported spouse who is the sponsor of an [appellant] gives evidence to the Tribunal that evidence is likely to be of significant importance in the Tribunal’s determination as to whether a spousal relationship existed between the [appellant] and the sponsor, and it is likely to be an exceptional case where it can be said that a Tribunal fell into error by considering a sponsor’s statement, and relying upon it, or giving it such weight as the Tribunal determined was necessary. Having regard to all of the circumstances, and in particular the evidence available for consideration by the Tribunal, it is apparent that this is not an exceptional case which would warrant the Tribunal disregarding [the sponsor’s] evidence, as contained in [the sponsor’s] Statutory Declaration.

23    On appeal, various arguments were put by the appellant directed at the contention that the Tribunal placed undue weight on the statutory declaration and “should have been very cautious of the information that was in the sponsor’s statement for several reasons”. It was submitted that had the Tribunal reviewed the evidence before it in an objective way, the Tribunal would have realised that much, if not all, of the statement by the sponsor “was a fantasy”. Reference was made to Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611, where at 644 [120] Crennan and Bell JJ stated:

An erroneously determined jurisdictional fact may give rise to jurisdictional error. The decision maker might, for example, have asked the wrong question or may have mistaken or exceeded the statutory specification or prescription in relation to the relevant jurisdictional fact. Equally, entertaining a matter in the absence of a jurisdictional fact will constitute jurisdictional error.

(footnotes omitted)

It was submitted there was in this case an “erroneously determined jurisdictional fact” by reason of the Tribunal’s failure to assess the evidentiary value of the statutory declaration in an objective way.

24    The FCC was correct to hold that there was no jurisdictional error in the Tribunal’s reliance on the statutory declaration. The arguments advanced by the appellant were, in substance, an invitation to engage in impermissible merits review and amounted to no more than a challenge to the factual findings of the Tribunal, although repeatedly in the submissions it was put that the appellant was not seeking merits review of the findings. I do not accept that protestation. Nothing that the appellant put to the Court either in the written or oral submissions raised appealable error in the Tribunal’s fact finding but, rather, were tendentious arguments aimed at getting the Court to engage in merits review. The Tribunal’s reasons set out the inconsistencies in the appellant’s evidence and explained its concerns about the appellant’s evidence and why it was unpersuaded to accept the appellant’s evidence about the nature of his relationships with the woman in Finland and the UK woman. The reasons disclose a considered and logical basis for the factual findings made and there is no discernible legal error in the reasoning process or the weight the Tribunal gave to the statutory declaration. The statutory declaration was a relevant piece of evidence for the Tribunal to take into consideration (Nduta v Minister for Immigration & Border Protection [2016] FCA 1596 at [37]) and the weight to be afforded to that piece of evidence and the credibility to be attached to the appellant’s evidence were matters for the Tribunal to determine: Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham [2000] HCA 1; 74 ALJR 405 at 417 [67]. Although credibility findings are not immune from review for jurisdictional error (CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; 253 FCR 496 at 507–512, [36]–[44]), for the reasons set out above, no jurisdictional error emerges from the Tribunal’s findings.

25    The appeal should be dismissed.

Associate:

Dated:    19 March 2020