Federal Court of Australia

Hong v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1697

ORDERS

THE COURT ORDERS THAT:

1.    The appellant have leave to file and rely upon the Amended Notice of Appeal dated 27 July 2020, subject to the deletion of Ground 1 and Particular (a) of Ground 2.

2.    The appeal is dismissed.

3.    The appellant pay the first respondent’s costs of the appeal.

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

REASONS FOR JUDGMENT

RANGIAH J:

1    The appellant appeals against a judgment of the Federal Circuit Court of Australia delivered on 5 December 2019. The primary judge dismissed the appellant’s application for judicial review of a decision of the second respondent, the Administrative Appeals Tribunal (the Tribunal).

2    The Tribunal had affirmed the decision of a delegate of the first respondent (the Minister) to refuse the appellant a Partner (Class BS) (Subclass 801) visa (Subclass 801 visa).

3    The appellant seeks leave to rely upon an Amended Notice of Appeal. I indicated during the hearing that counsel should proceed to make submissions in full, and that I would consider the interlocutory application in the course of my judgment.

4    During the hearing, counsel for the appellant withdrew Ground 1 and Particular (a) of Ground 2 of the Amended Notice of Appeal. The remainder of Ground 2 provides as follows:

(2)    The Tribunal made a jurisdictional error or errors by overlooking evidence relevant to its determination of whether the Appellant was the spouse of the sponsoring partner.

Particulars

…

(b)    The Tribunal overlooked evidence that the Appellant had been named as a beneficiary of the sponsoring partner’s superannuation account.

(c)    The error pleaded at…(b) are material as they…could have realistically affected the outcome of the review.

5    I will describe the background and the decisions of the Tribunal and the primary judge before considering the application to rely on the Amended Notice of Appeal and the merits of the appeal.

Background

6    The appellant is a citizen of Cambodia. The appellant’s sponsoring partner, Chenda Va (the sponsor) is an Australian citizen. The appellant and the sponsor claim to have met virtually on 25 November 2010, and that they decided on 25 March 2011 that they wanted to commit to a long-term relationship. They met for the first time in person on 12 April 2011 and were engaged to be married on 23 April 2011.

7    The appellant was granted a Prospective Marriage visa on 2 April 2012. On 11 May 2012, the appellant and the sponsor were married in Perth.

8    The appellant applied for a Partner (Class UK) (Subclass 820) visa (Subclass 820 visa) and a Subclass 801 visa on 18 June 2012. On 20 June 2012, a delegate of the Minister granted the appellant a Subclass 820 visa.

9    On 8 January 2014, the sponsor completed a passenger card upon her return to Australia from travelling overseas. Under the field “Emergency Contact Details (Family or Friend)” she entered, “Jeremy Toh”, the name of a man who was not the appellant.

10    On 30 April 2014, the appellant, the sponsor and Mr Toh entered into a contract to purchase as tenants in common a house and land. This agreement was varied on 8 May 2014, to remove the sponsor as a buyer and to name the appellant and Mr Toh as joint tenants.

11    On 12 September 2014, the sponsor gave birth to a daughter, who is the biological child of the sponsor and Mr Toh.

12    On 19 September 2014, the sponsor was contacted by a delegate of the Minister. The delegate asked the sponsor questions, including:

(a)    Why the appellant had not accompanied her on two overseas trips?

(b)    Who Mr Toh was and why was he listed as her emergency contact?

(c)    Why the appellant bought a house with Mr Toh?

13    Following the phone call and on the same day, the delegate sent the appellant an invitation to comment on adverse information pursuant to s 57 of the Migration Act 1958 (Cth) (the Act). The adverse information comprised the matters raised in the phone call with the sponsor, as well as the fact that the sponsor had travelled overseas twice with Mr Toh. The appellant was asked to provide explanations about why he bought a house with Mr Toh and about the nature of the sponsor’s relationship with Mr Toh.

14    On 17 October 2014, a friend of the appellant emailed the delegate with the appellant’s response. The response addressed the matters raised in the invitation and rejected the insinuation that Mr Toh was in a relationship with the sponsor.

15    On 5 November 2014, the delegate refused to grant the appellant a Subclass 801 visa, and notified the appellant of her decision. The delegate refused to grant the visa on the basis that the appellant did not satisfy cl 801.221(2) of Sch 2 of the Migration Regulations 1994 (Cth) (the Regulations), because at the time of the delegate’s decision the delegate was not satisfied that the appellant was the spouse of the sponsor. The appellant applied for review of the delegate’s decision on 25 November 2014.

16    On 6 October 2015, the appellant’s friend wrote to the Tribunal on his behalf. The letter enclosed a number of documents, including bank and superannuation statements.

17    The hearing before the Tribunal was held on 13 October 2015. On 3 February 2016, the Tribunal affirmed the delegate’s decision.

18    In its reasons, the Tribunal considered whether the appellant was the spouse of the sponsor as required by cl 801.221(2)(c) of the Regulations. The Tribunal was satisfied that the first requirement for a spousal relationship, as defined in s 5F of the Act, namely that the appellant and the sponsor were validly married, was satisfied. The Tribunal then proceeded to consider whether the other requirements for a spousal relationship as set out in s 5F were satisfied, having regard to all of the circumstances of the relationship pursuant to reg 1.15A(2) of the Regulations. This involved, pursuant to reg 1.15A(3), a consideration of the financial aspects of the relationship, the nature of the household, the social aspects of the relationship and the nature of their commitment to each other. The Tribunal was ultimately not satisfied that the appellant and the sponsor were in a spousal relationship, finding as follows:

62.     Having considered all of the evidence before the Tribunal, and in particular the evidence related to the matters prescribed in r.1.15A(3), the Tribunal finds it is not satisfied that the applicant and the sponsor have provided evidence to satisfy it that they are in a relationship where there is a mutual commitment to shared life to the exclusion of others, or that they are in a genuine and continuing relationship.

63.     Given these findings, the Tribunal is not satisfied that at the time of this decision the parties are in a spousal relationship. Therefore, the applicant does not meet cl.801.221(2)(c).

…

65.     For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.

19    On 1 March 2016, the appellant applied to the Federal Circuit Court for judicial review of the Tribunal’s decision. The appellant relied on three grounds of review, none of which are relied upon by the appellant on appeal.

20    The application for judicial review was heard before the primary judge on 27 November 2019. The appellant was self-represented.

21    On 5 December 2019, the primary judge dismissed the appellant’s application for judicial review, finding that the Tribunal had not committed jurisdictional error.

22    The appellant then appealed to this Court.

The relevant legislation

23    The relevant provisions are ss 5F, 65, 338 and 348 of the Act, and reg 1.15A and cl 801.221 of Sch 2 of the Regulations.

24    Section 65(1) provides that the Minister, after considering a valid application for a visa, is to grant the visa if satisfied that the criteria, including the “other criteria” prescribed by the Act or the regulations, have been satisfied.

25    This appeal is concerned with the grant of a Subclass 801 visa. The “other criteria” for the grant of such a visa include the criteria set out in Pt 801 of Sch 2 of the Regulations. Clause 801.2 sets out the “primary criteria” for the grant of such a visa. Clause 801.22 sets out the criteria that must be satisfied at the time of the decision.

26    Clause 801.221(2) provides as follows:

(2)     An applicant meets the requirements of this subclause if:

(a)     the applicant is the holder of a Subclass 820 visa; and

(b)     the applicant continues to be sponsored for the grant of the Subclass 820 (Partner) visa by:

(i)     the sponsoring partner; or

(ii)     the Australian citizen, Australian permanent resident or eligible New Zealand citizen who sponsored the applicant for that visa; and

(c)     the applicant is the spouse or de facto partner of the sponsoring partner; and

(d)     subject to subclauses (6A) and (7), at least 2 years have passed since the application was made.

27    Clause 801.221(2)(c) requires that the applicant for a Subclass 801 visa is the “spouse or de facto partner of the sponsoring partner”. Spouse is defined in s 5F of the Act as follows:

5F    Spouse

(1)     For the purposes of this Act, a person is the spouse of another person (whether of the same sex or a different sex) 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 a married couple 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.

28    Section 5F(3) provides for the making of regulations for the purpose of determining whether the conditions in paragraphs (a)-(d) of s 5F(2) exist. Relevantly, reg 1.15A of the Regulations provides:

1.15A    Spouse

(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:

…

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

…

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.

29    A decision by the Minister to refuse to grant an applicant a Subclass 801 visa is a Part 5 - reviewable decision: s 338 of the Act. The Tribunal, on receipt of a properly made application, must review a Part 5 - reviewable decision: s 348 of the Act.

Consideration

30    Ground 2 of the Amended Notice of Appeal was not pleaded before the primary judge. The appellant submits that it is expedient in the interests of justice for leave to be granted to rely on Ground 2 as it has merit and the appellant was unrepresented in the first instance proceedings.

31    The Minister submits that leave to rely on Ground 2 should be refused. It is submitted that the interests of justice are not automatically to be equated to the interests of the appellant. Rather, the Court must have regard to the interests of other litigants and the administration of justice generally in its consideration of whether to grant leave. Reference was made to the principle that, generally, the Court is more likely to permit a fresh issue to be raised on appeal where the new point turns only upon a question of construction or upon a point of law, or where the facts are not in controversy: see CGA15 v Minister for Home Affairs (2019) 268 FCR 362 at [35] and the cases cited therein.

32    The Minister submits that the appellant has not sought to identify any appealable error in the primary judge’s reasons, and that Ground 2 essentially invites the Court to form its own view of the adequacy of the Tribunal’s decision. It is submitted that such an approach is to be “firmly rejected” on the basis that it would “impermissibly reduce the proceedings before the Federal Circuit Court to a ‘preliminary skirmish’”: see SZVBT v Minister for Immigration and Border Protection (2017) 72 AAR 1; [2017] FCA 355 at [10], citing Coulton v Holcombe (1986) 162 CLR 1 at 7.

33    The Minister submits that it is “well settled” that merit alone is generally not enough for the grant of leave, relying on VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588 at [48], where the Full Court stated that:

The practice of raising arguments for the first time before the Full Court has been particularly prevalent in appeals relating to migration matters. The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused.

34    The Minister submits that there is no evidence explaining why Ground 2 was not raised earlier, and notes that whilst the appellant was unrepresented at the final hearing, he was represented between 6 June 2017 and 10 September 2018. It is further submitted that the Minister will suffer prejudice if leave is granted because the Minister will have no practical right of appeal, as it would require the grant of special leave to appeal to the High Court: see Han v Minister for Home Affairs [2019] FCA 331 at [20(4)]. However, the Minister noted the statement made by Farrell J in FBR18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1620 at [27] that:

Where a strong case of jurisdictional error by an administrative decision-maker is revealed, the fact that the Minister’s avenues of appeal may be more limited — though not eliminated — may be accorded less weight in determining where the interests of the due administration of justice lay.

35    When considering an application to rely on amended grounds of appeal that were not argued at first instance, the Court must consider the merits of the proposed grounds. Assessment of whether the proposed new grounds of appeal have sufficient merit must be conducted on a “reasonably impressionistic basis”, without conducting a de facto final hearing: FBR18 at [29]. What such an assessment involves was described by Mortimer J in CAL15 v Minister for Immigration and Border Protection [2016] FCA 1344 at [6]:

The threshold is whether a ground of review is “arguable”. That means it is not fanciful, illogical, impermissible or devoid of merit, but has a level of rationality and a basis in the material before the Court sufficient for the Court to be satisfied it is appropriate to hear full argument, with the parties having a fair opportunity to prepare for such argument.

36    Ground 2 of the Amended Notice of Appeal is that the Tribunal overlooked evidence relevant to its determination of whether the appellant was the spouse of the sponsor, namely that the sponsor named the appellant as a beneficiary to her superannuation fund.

37    On 6 October 2015, the appellant’s friend sent a letter to the Tribunal on his behalf which enclosed a number of documents, including a statement from Hostplus Executive, a Superannuation Fund, about the sponsor’s superannuation account, which indicated that the appellant was an 80% beneficiary.

38    The appellant submits that the Tribunal was required to take this evidence into account when considering all the circumstances of the relationship pursuant to reg 1.15A(2) of the Regulations, and when considering the financial aspects of the relationship pursuant to reg 1.15A(3)(a). It is submitted that an inference should be drawn that the Tribunal overlooked this piece of evidence, as the Tribunal’s reasons specifically refer to the appellant’s superannuation arrangements a number of times, but do not refer specifically to the evidence of the sponsor’s superannuation arrangements.

39    The Minister submits that this ground is misconceived, and that an inference that the Tribunal overlooked the evidence is not open. The Minister submits, in the alternative, that even if the Tribunal did not refer to the evidence, that failure was not material.

40    The Full Court in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at [46]–[47] warned against too readily drawing an inference that evidence was overlooked merely because it was not expressly discussed in the decision-maker’s reasons:

46    It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [87]-[97]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The Tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised “with an eye keenly attuned to error”. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.

47    The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.

41    It is a well-established principle that the reasons of a decision-maker should not be scrutinised “minutely and finely with an eye keenly attuned to the perception of error”: Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352 at [45], citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [30].

42    The Tribunal considered the financial aspects of the relationship at paras 43-47 of its reasons, and relevantly stated with respect to the superannuation arrangements:

43.     …The Tribunal considered the applicant’s submission at the hearing where he claimed that he has provided bank documents and superannuation evidence indicating that the applicants are in a genuine spousal relationship. It accepts that some of these documents may point to such a relationship, however, they are not determinative and while placing some weight on it, the Tribunal has considered this evidence together with all of the other evidence before it.

44.     … The applicant told the Tribunal that Ms Va is now listed as a beneficiary to his superannuation account, and while this may indicate in certain circumstances the presence of a genuine spousal relationship, having regard to all of the evidence in this case, the Tribunal does not find this overcomes other evidentiary deficiencies, or the evidence which indicates to the Tribunal that it should not be satisfied that this is a genuine and continuing spousal relationship.

43    The Tribunal at para 43 of its reasons referred to the “superannuation evidence” provided to it by the appellant, which included the statement from Hostplus Executive indicating the appellant was named as a beneficiary of the sponsor’s superannuation account. The Tribunal expressly indicated that it had considered the superannuation evidence provided, saying that some of these documents may point to a genuine spousal relationship, but that they were not determinative. An inference should not be drawn that the Tribunal overlooked the Hostplus Executive statement merely because it was not referred to by name. That is particularly so given that the Tribunal expressly referred at para 44 to the issue of superannuation arrangements between the appellant and the sponsor. In WAEE, the Full Court observed at [47] that an inference that a Tribunal failed to consider an issue because it was not expressly addressed is, “an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point”.

44    Therefore, I do not accept that the Tribunal overlooked the evidence demonstrating that the appellant was listed as a beneficiary of the sponsor’s superannuation account. Ground 2 should be rejected for that reason.

45    In case I am wrong in my opinion that the Tribunal did not overlook the evidence of the sponsor’s superannuation arrangements, I will consider whether any such failure was material.

46    In Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123, the plurality held at [29] that where a statute confers decision-making authority, “The statute is ordinarily to be interpreted as incorporating a threshold of materiality in the event of non-compliance”. Their Honours stated at [30]:

…the threshold of materiality would not ordinarily be met in the event of a failure to comply with a condition if complying with the condition could have made no difference to the decision that was made in the circumstances in which that decision was made…

47    This was confirmed by the plurality in Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421, which stated at [45], “A breach is material to a decision only if compliance could realistically have resulted in a different decision”.

48    The appellant submits that the Tribunal’s overlooking of the sponsor’s superannuation arrangements was material, as the evidence would have added weight to the appellant’s case that he was the spouse of the sponsor. The appellant submits that the overlooked evidence went to matters of “real and not marginal or fanciful relevance to the statutory task”, and that therefore the Court could not conclude that the outcome could not have been different: DQM18 v Minister for Home Affairs [2020] FCAFC 110 at [113]–[114].

49    The Minister submits that if the evidence was overlooked by the Tribunal, it was not material as the Tribunal made clear that the financial aspects of the relationship were not determinative in its assessment of whether or not the appellant was the spouse of the sponsor. Even had the Tribunal specifically referred to the overlooked evidence, it could not realistically have resulted in a different decision, given the Tribunal’s findings in relation to other aspects of the relationship.

50    The Tribunal indicated at para 44 of its reasons that the fact that the sponsor was listed as a beneficiary to the appellant’s superannuation account, “may indicate in certain circumstances the presence of a genuine spousal relationship”. However, the Tribunal went on to conclude that, “having regard to all of the evidence in this case, the Tribunal does not find this overcomes other evidentiary deficiencies, or the evidence which indicates to the Tribunal that it should not be satisfied that this is a genuine and continuing spousal relationship”.

51    Given that the Tribunal indicated that evidence of the sponsor being a beneficiary of the appellant’s superannuation account would not overcome other evidentiary deficiencies or other evidence indicating there was not a genuine spousal relationship, it is highly unlikely that evidence of the appellant being named as a beneficiary of the sponsor’s superannuation account could have overcome those deficiencies and other evidence.

52    Further, at para 47 of its reasons, the Tribunal concluded that while it would have regard to the financial aspects of the relationship, it had decided to place less weight on those matters than other aspects of the relationship. Given the lesser weight placed on the financial aspects of the relationship, it is highly unlikely that evidence of the appellant being named as a beneficiary of the sponsor’s superannuation account would alone be sufficient to result in a different decision. That is particularly so given that the Tribunal placed significant weight on the “nature of the persons’ commitment to each other”, with such evidence lacking the “necessary indication of a commitment by the [appellant] and the sponsor to a long term spousal relationship characterised by a shared life to the exclusion of others”.

53    Therefore, even if I were wrong in finding that the Tribunal did not overlook the evidence of the sponsor’s superannuation arrangements, such a failure would not be material as consideration of the evidence could not have realistically resulted in a different decision.

54    Although I have found that the appellant has not established that the Tribunal overlooked the evidence of the sponsor’s superannuation arrangements, the ground was arguable. It is relevant to the application to rely upon the Amended Notice of Appeal that the appellant was self-represented before the primary judge. I accept that the Minister would suffer prejudice if the appellant were granted such leave, as the Minister would have no practical right of appeal. However, on balance, I consider that the interests of the administration of justice would best be served by granting leave to the appellant to rely upon the Amended Notice of Appeal.

Conclusion

55    I will order that the appellant have leave to amend the Notice of Appeal and have leave to rely upon the Amended Notice of Appeal. However, the appeal will be dismissed with costs.

Associate:    

Dated:    25 November 2020