Federal Court of Australia

Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 755

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The orders of the Federal Circuit Court of Australia made on 9 September 2020 be set aside and in lieu thereof it is ordered that:

(a)    The decision of the Second Respondent made on 22 November 2019 in case number 1833460 be set aside.

(b)    The Second Respondent consider and determine the application according to law.

(c)    The Second Respondent be constituted by a different member.

(d)    The First Respondent pay the Applicant’s costs of the application as taxed, assessed or agreed.

3.    The First Respondent pay the Appellant’s costs of the appeal as taxed, assessed or agreed.

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

REASONS FOR JUDGMENT

PERRAM J:

Introduction

1    The question in this appeal is whether the Second Respondent (‘the Tribunal’) failed to consider relevant evidence in its conduct of a review of a decision of a delegate of the First Respondent. The Federal Circuit Court concluded that it did not: Singh v Minister for Immigration [2020] FCCA 2540. In my view, that decision was incorrect and the appeal must be allowed with costs.

The Oral Testimony of Mr Gurpreet Singh Kahlon, Mr Ranjit Singh, Ms Ramanbir Kaur and Mr Kulwinder Singh

2    The issue before the Tribunal was whether the Appellant and his wife, Ms Sophia Swart, were in a ‘married relationship’ within the meaning of that expression in s 5F(2) of the Migration Act 1958 (Cth) (‘the Act’). It concluded they were not and that Mr Singh was not therefore entitled to a visa as Ms Swart’s partner (Ms Swart being an Australian citizen and Mr Singh being a citizen of India). The definition in s 5F(2) requires more than that the couple should have been validly married. It also requires that they must have a mutual commitment to a shared life as a married couple to the exclusion of all others, that the relationship must be genuine and continuing and that they must live together or at least not live separately and apart on a permanent basis. In assessing this issue the Tribunal was required by law to take into account a number of matters including ‘the social aspects of the relationship’: reg 1.15A(3)(c) of the Migration Regulations 1994 (Cth) (‘the Regulations’). It was therefore legally bound to examine this matter and its examination had to involve active intellectual engagement with the material relating to it including both that which was unfavourable to the Appellant and that which was favourable. The oral testimony of the following four witnesses went to this question.

3    Mr Gurpreet Kahlon was called by the Tribunal on 16 July 2019 at T40. His evidence was that he had been a friend of the Appellant since 2008 when they had studied together. When the Appellant had lived in Brisbane he had seen a lot of him but since the Appellant moved to Sydney Mr Kahlon had seen him a couple of times. He had visited the Appellant’s house probably in 2013 or 2014. On that occasion he had seen the Appellant with Ms Swart and her daughter. At that time the Appellant had not mentioned Ms Swart’s drug problem but the Appellant told him about this in around 2015. Mr Kahlon was shocked because he thought them close to each other and a good family. Mr Kahlon gave evidence that he and his wife had had dinner with the Appellant as well as lunch. They had also been to a party together. Mr Kahlon volunteered that he had some photographs. The Tribunal did not seek to elicit the photographs

4    Mr Ranjit Singh was called on the same day at T43. Mr Ranjit Singh was from the same town as the Appellant in India; they had there been school friends. While the Appellant had been in Brisbane they had spoken on the phone. When the Appellant and Ms Swart came to Sydney he visited them quite often and he thought they were bonded well. They were planning to move out and to buy their own place and have children. The Appellant did not tell him about Ms Swart’s drug problem until 2015 but he knew about it through some other friends.

5    Ms Ramanbir Kaur was called on the same day at T45. She told the Tribunal that the Appellant was a friend of her brother but that she had known him since they were in India because their relations lived close by to each other. She had had coffee with the Appellant at a café at Westfield Parramatta probably in around 2012. Although it is not entirely clear, it appears likely that Ms Kaur worked at this café. She thought at that time that he had been there with Ms Swart. She said that she saw them often. She used to make them coffee and the Appellant would sit with Ms Swart whilst Ms Kaur went about her work. She did not know too much about Ms Swart but was surprised when she found out about Ms Swart’s drug problem. She had not noticed anything about Ms Swart’s drug problem at the café because she was working. She also said that she used to meet the Appellant and Ms Kaur at Glenwood.

6    Mr Kulwinder Singh gave evidence the same day at T48. Mr Kulwinder Singh had known the Appellant for 20 years, originally from India. After Mr Kulwinder Singh came to Australia in 2010 he would stay with the Appellant at ‘Coopers House’ in Westmead. Although he had not lived in Sydney since, he had visited the Appellant in Sydney many times. He said that Ms Swart had been present on these occasions. Additionally, the Appellant and Ms Swart had travelled to Brisbane (where he lived) after their wedding and he spent some time with them around Brisbane and the Gold Coast. He never saw Ms Swart attack the Appellant and he was unaware of her drug problem until 2014.

7    This evidence of these four witnesses was, to varying extents, favourable to the Appellant so far as the issue of the social aspects of the relationship was concerned. The Tribunal touched on their evidence in only three places in its reasons. The first was at [6]:

The applicant appeared most recently before the Tribunal on 16 July 2019 to give evidence and present arguments. The Tribunal also received oral evidence from other witnesses on behalf of the applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

8    At [52]-[58] under the heading which began ‘Social aspects of the relationship’ the Tribunal dealt explicitly with evidence about the interactions between the Appellant and Ms Swart and their respective families (which was also relevant to the issue of the social aspects of the relationship). It did not in terms, however, deal with the testimony of these four witnesses. At [54] it recorded a written submission made to it by the Appellant’s representative in the Tribunal, Mr Brooks:

It is clear from Nishan’s evidence of contact with Ms Swart’s mother, stepfather and daughter that his relationship with her was recognised. At any rate, it is indisputable that a significant number of Nishan’s friends and acquaintances knew Ms Swart and consider that the relationship was a genuine one.

(Emphasis added)

9    The Tribunal did not, however, then go on to deal with the submission insofar as the evidence of the friends was concerned. Counsel for the Minister, Mr Reilly, submitted that it could be inferred that the Tribunal had considered the evidence from what the Tribunal said at [58]:

The Tribunal finds that when examined the social aspects of the relationship between the parties indicate it was not a spousal one. The Tribunal gives little weight to the applicant’s claims that he got on well with her family and had befriended them. This claim must be juxtaposed with the evidence of lack of acceptance by her family and his lack of knowledge of the sponsor’s health issues. The contradictory evidence when questioned about access to social media and attendance at religious services gives further weight to the Tribunal’s finding.

(Emphasis added)

10    It was not suggested that any other part of the Tribunal’s reasons dealt with the evidence of these four witnesses. Mr Karp for the Appellant submitted that the inference which should be drawn was that the Tribunal had not considered their evidence at all. Mr Reilly, on the other hand, submitted that it should be inferred that (a) the Tribunal had accepted the evidence of all four witnesses; but (b) had concluded that their evidence did not materially assist the Appellant. The reason for this was that the Tribunal had strongly concluded that the marriage was a sham for a number of reasons independent of the social aspects of the relationship. These included that the Appellant did not know that Ms Swart had a thyroid condition, which the Tribunal described as a ‘major health problem’, and that Ms Swart did not know that she had entered into particular religious rites at their wedding. The Tribunal was also unimpressed by the fact that Ms Swart’s family had not come to the wedding.

11    I am not persuaded that I should draw the inference that Mr Reilly suggests. If one posits the hypothesis that the Tribunal did consider the evidence of the four witnesses in coming to the conclusion it did at [58] then there are at least two ways the Tribunal could have done so:

(a)    it could have reasoned, as Mr Reilly suggests, that in light of its emphatic rejection of the marriage as a sham, that even if the couple appeared to be a bona fide couple this just could not alter the outcome of the underlying inquiry into whether they were in a committed marriage for the purposes of s 5F(2); or

(b)    it could have reasoned that it did not accept their evidence so that it was incapable of assisting the Appellant.

12    Because there are four witnesses involved, there are in fact a large number of variations of these two lines of reasoning. For example, it could have accepted the evidence of Mr Gurpreet Kahlon and applied the reasoning in (a) to his evidence but rejected the evidence of the other three witnesses. There are 24 possible variations of this which means there are 16 distinct paths of reasoning that the Tribunal could have adopted to arrive at the conclusion at [58].

13    I raised with the parties whether this meant that the reasons at [58] were not adequate in an administrative law sense since it was not possible to discern from them what the actual reasoning was. In response, both Mr Karp and Mr Reilly submitted that any inadequacy of reasons would not result in a jurisdictional error which could ground a writ of certiorari. In that circumstance, I consider the question of whether the reasons at [58] are adequate no further.

14    Mr Reilly very properly reminded me that the Tribunal is, of course, not bound to refer to every item of evidence which is before it, citing Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; 236 FCR 593 at [46] per French, Sackville and Hely JJ. The statement in [46] is useful but it is what is said in the first three sentences at [47] which is more pertinent:

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.

15    In this case, the reasons are not comprehensive on the topic of how the couple presented to friends and it is not subsumed in the Tribunal’s findings about the sham nature of the marriage. To the contrary, if the Tribunal had dealt with the evidence by accepting it this would have required it to reconcile that conclusion with the otherwise adverse findings it made about the marriage. I am by no means saying that such a process of reconciliation would be impossible but the outcome of that process of reconciliation cannot presently be known. Consequently, one cannot say that this topic of the social presentation to the friends was subsumed in that of the sham marriage.

16    Returning to the inference which should be drawn about the Tribunal’s reasons, I think the more likely inference is that the Tribunal simply forgot to deal with the evidence.

17    It is clear that it dealt with the family evidence in detail and it is hard to see why it would take a different approach to the evidence of these four witnesses. Consequently, whilst I accept that the Tribunal must have been aware at some level of the four witnesses because of the submission which is recorded at [54] I am unable to accept that the Tribunal undertook an active intellectual process towards that evidence. Mr Karp submits that its failure to do so constitutes a jurisdictional error: Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; 252 FCR 352 (‘Carrascalao’) at [36]-[46] per Griffiths, White and Bromwich JJ.

18    There may have been an argument available that that principle did not apply in this situation and that it was rather concerned with whether a decision-maker who was bound to take a matter into account could do so by formulaically referring to the evidence. On one view this case did not involve such a situation. A more comfortable shoe might have been the proposition that the Tribunal failed to afford the Appellant procedural fairness by failing to deal with the argument recorded at [54] in its reasons: DVE18 v Minister for Home Affairs [2020] FCAFC 83; 276 FCR 401 (‘DVE18’) at [34], [36]-[37] and [63]; Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088 at [24] per Gummow and Callinan JJ, Hayne J agreeing at [95]. However, that was not the argument advanced by Mr Karp. On the other hand, Mr Reilly did not submit that the principle in Carrascalao was inapplicable. Consequently, it was not in dispute before me that if the Tribunal did fail to consider the evidence a jurisdictional error was established. Whether the correct route to that conclusion is Carrascalao or DVE18 is therefore not a matter I need consider.

19    I should briefly mention the reasons of the Federal Circuit Court. These were at [59]-[60] and [63]:

Mr Karp’s reference to the evidence of the particular witnesses in paragraph (a) did not identify any material or significant evidence that was not the subject of genuine intellectual consideration by the Tribunal. The Tribunal expressly referred in paragraph 6 of its reasons to the evidence of witnesses and further referred to the evidence of witnesses in its reasons, as summarised above. There is no basis to find that the Tribunal did not take into account the evidence of the witnesses, notwithstanding Mr Karp’s submissions to the contrary. There was no material or significant evidence identified by the witnesses that the Tribunal was required to further expressly engage with in the circumstances of the findings made by the Tribunal in this case.

The Tribunal does not have to refer to every item of evidence before the Tribunal and is not required to specifically discuss and evaluate every piece of evidence. The Tribunal did refer to the witnesses, and the fifth witness’s evidence was summarised at paragraph 28 of the Tribunal’s reasons. The Tribunal, however, was not bound to accept the witnesses’ opinions. It is apparent that the Tribunal took into account the applicant’s mother’s views as to there being a marriage between the sponsor and the applicant and it also expressly referred to the applicant’s mother’s evidence about having lived with the parties.

…

The Tribunal also made express reference to the number of witnesses advanced in the submissions as having indicated there was a genuine relationship. There is no basis to infer that the Tribunal overlooked this submission or the evidence. The Court does not accept that there was any material or significant evidence that required further express consideration by the Tribunal in respect of the persons identified by the particulars to particular (a). The Tribunal reasons as summarised above evidence that the Tribunal had a genuine intellectual engagement with evidence and submissions advanced by the applicant. No jurisdictional error is made out by particular (a).

20    For the reasons I have given, this is entirely erroneous. It reflects a complete lack of intellectual engagement with the argument which was being put and is indicative of a judicial method in which meaningless phrases are unthinkingly gathered from the authorities like twigs and patched together in some kind of forensic bird’s nest. Judgments like this are a blot on the judicial department of government. The appeal must be allowed with costs. Mr Karp also raised a similar argument in relation to the evidence of Mr Manjinder Singh and a psychologist, Mr Gachon. It is not necessary to deal with these in circumstances where the decision of the Tribunal is to be set aside.

21    For completeness, it should be noted that the next hearing in the Tribunal will be the fourth time it will have attempted to determine the Appellant’s review application according to law. The first decision, made on 2 July 2015, was set aside by consent when the parties agreed in the Federal Circuit Court that the Tribunal had failed to consider the mandatory matters in reg 1.15A(3) of the Regulations, which include the very same question involved in this appeal: ie the social aspects of the relationship. The second Tribunal decision made on 2 November 2016 was set aside when it came to light that the second Tribunal had extensively plagiarised the first Tribunal’s reasons. The third Tribunal’s decision made on 22 November 2019 will now be set aside because it failed to consider evidence which was favourable to the Appellant under reg 1.15A(3). The Appellant’s initial application for review of the delegate’s decision was filed with the Tribunal as long ago as 12 December 2013 and the Tribunal has now been considering this entirely straightforward matter for nearly 8 long years. It is to be hoped that the Appellant, who is still a relatively young man, lives a long enough life to see the Tribunal deal with his review application according to law. It is by no means too much to expect that the Tribunal takes into account the matters which by law it is required to take into account, that it does not unwisely plagiarise earlier decisions which have been set aside and that it remembers to consider not only the evidence which is unfavourable to the Appellant but also that which is in his favour. Public confidence in the Tribunal resides in its reputation for competence. The conduct of the present review application is apt to undermine that confidence.

Orders

22    The orders will be:

1.    The appeal be allowed.

2.    The orders of the Federal Circuit Court of Australia made on 9 September 2020 be set aside and in lieu thereof it is ordered that:

(a)    The decision of the Second Respondent made on 22 November 2019 in case number 1833460 be set aside.

(b)    The Second Respondent consider and determine the application according to law.

(c)    The Second Respondent be constituted by a different member.

(d)    The First Respondent pay the Applicant’s costs of the application as taxed, assessed or agreed.

3.    The First Respondent pay the Appellant’s costs of the appeal as taxed, assessed or agreed.

Associate:

Dated:    6 July 2021