Federal Court of Australia

Aujla v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2025] FCA 303

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant is to pay the costs of the first respondent to be agreed or assessed.

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

REASONS FOR JUDGMENT

ABRAHAM J:

1    This is an appeal from the orders and judgment of the primary judge of the Federal Circuit Court of Australia made on 19 March 2021. The primary judge dismissed the appellant’s application for judicial review of a decision of the second respondent (the Tribunal) dated 21 May 2019, which affirmed a decision of a delegate of the first respondent (the Minister) to refuse to grant the appellant a Partner (Temporary)(Class UK) visa (Partner visa): Aujla v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 336.

2    In summary, the appeal arises in the following circumstances.

3    The appellant arrived in Australia in August 2008 on a student visa, which was cancelled on 28 February 2012. He was granted additional student visas in 2012 and 2015. On 16 December 2015, the appellant applied for a partner visa based on his relationship with Ms Simran Kaur, an Australian citizen. The appellant claimed to have commenced cohabitating with Ms Kaur (the sponsor) as a de facto couple in December 2015. On 30 June 2016, Ms Kaur notified the Minister’s Department that her relationship with the appellant had ended, and she wished to withdraw her sponsorship. On 8 July 2016, an officer of the Department sent a letter to the appellant inviting him to comment on the information it had received as to the status of his relationship with Ms Kaur. On 5 August 2016, the appellant, through his representative, advised the Department that he had been a victim of family violence. The appellant subsequently submitted evidence to the Department in support of his claim of having suffered family violence and the genuineness of his relationship with Ms Kaur prior to its cessation. On 2 June 2017, a delegate of the Minister refused to grant the appellant the Partner visa because the delegate was not satisfied the appellant and Ms Kaur were in a genuine relationship at the time of the visa application. Therefore, the appellant did not satisfy the requirements within clause 820.211(2) of Schedule 2 of the Migration Regulations 1994 (Cth) (the Regulations). Given that finding, the delegate considered it unnecessary to take into consideration the family violence claims. The appellant applied to the Tribunal for a review of the delegate’s decision.

4    On 21 May 2019 the Tribunal affirmed the delegate’s decision under review. The Tribunal was not satisfied the appellant had been in a genuine de facto relationship with the sponsor for the purposes of s 5CB of the Migration Act 1958 (Cth) (the Act) at the time of the visa application. Having regard to the factors prescribed in reg 1.09A(3) of the Regulations, the Tribunal concluded that it was not satisfied that the appellant and the sponsor had at the time of the application, a mutual commitment to a shared life to the exclusion of all others, or a relationship that was genuine and continuing.

5    The appellant sought a review of the Tribunal’s decision in the Federal Circuit Court. In those proceedings, the appellant only pressed two grounds.

6    First, the Tribunal’s decision was arbitrary, capricious or legally unreasonable. This was said to arise from the following circumstances:

(1)    The Tribunal having found that the appellant and his then sponsor did not live together, failed to have regard to, or deconstructed, the supporting evidence that showed that the requisite relationship between the appellant and his then sponsor existed.

(2)    The Tribunal imposed its own value judgement in relation to what constituted a relationship, evident in the Tribunal’s finding that the relationship was

at a reasonably immature stage at the time of application and accordingly it considers their commitment to each other at that time to be commensurate and does not consider that the parties regarded their relationship as a long-term one.

(3)    The Tribunal required the declarants who provided supporting statutory declarations to have knowledge of the inception and development of the relationship between the appellant and his then sponsor.

(4)    The Tribunal’s reliance on the sponsor’s arranged marriage in August 2015, when the appellant’s claimed de facto relationship with his then sponsor did not commence until 11 December 2015.

7    Second, that the Tribunal failed to have proper regard to the evidence of the de facto relationship provided by the appellant in support of the visa application, specifically, the statutory declarations and the photographs of the appellant and his then sponsor together, and with other people.

8    On 19 March 2021, the primary judge dismissed the application.

9    The appellant, although representing himself on this appeal, was represented by a legal practitioner in the Court below.

10    No grounds of appeal are articulated. Rather, in the notice of appeal the appellant stated that he “continue[s] to believe” that the Tribunal’s decision is “infected by error of law” and that

the decision of the Tribunal is not reasonable because the Tribunal had sufficient evidence to demonstrate that the relationship was genuine and there was commitment and the Tribunal ignored the significance of statutory declarations made by Australian citizens and did not place weight on other evidence in support of the relationship.

11    In the notice of appeal, the appellant also said he continues to rely on his submissions before the primary judge in Federal Circuit Court and that he “hope[s] … [this Court] will make a decision in [his] favour”.

12    At the hearing, the appellant submitted that he relied on the same grounds as before the primary judge. In particular, he submitted the errors were that: (1) the Tribunal did not give sufficient weight to his material; (2) the Tribunal “overlooked” parts of his material, including that relating to his family violence claim; and (3) the material shows he was in a genuine relationship. At the start of the hearing, the Court was provided the appellant’s outline of written submissions, that is one page long and is to the same effect.

13    Given the appellant’s submission, it is timely to recall that the Federal Circuit Court could only have disturbed the decision of the Tribunal if that decision was infected by jurisdictional error: the Act, s 476(1); Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429 at [13]. The appellate function of this Court is to ascertain whether there is an error in the decision of the Federal Circuit Court. Neither Court has the jurisdiction to consider the factual merits of the Tribunal’s decision. The issue is not whether this Court or the Federal Circuit Court agrees with the decision. Moreover, this Court is not a forum in which a party may simply reargue their case in the hope of convincing a judge to take a different view of the evidence: DCD17 v Minister for Immigration and Border Protection [2018] FCA 1262 at [21].

14    I accept the respondent’s submission that it was open to the primary judge to find no error in the Tribunal’s finding that the appellant and his sponsor did not live together. The primary judge detailed the material before the Tribunal, which is unnecessary to repeat here. In providing his reasons, the primary judge accurately detailed the submissions advanced by the appellant and explained the basis for dismissing the grounds of appeal. His Honour referred to and applied the correct principles in relation to determining the issues before him.

15    It is appropriate to make the following points.

16    First, the submission that the Tribunal failed to properly consider the material before it because the Tribunal’s reasons referred to four, rather than five of the statutory declarations provided by the appellant, was rejected by the primary judge. His Honour observed that the Tribunal in its reasons, provided what was stated to be a non-exhaustive list of the documentary material before it. The Tribunal then proceeded to address the considerations relevant to its assessment of the appellant’s application based on the material before it. The reasons are structured per consideration, as opposed to summarising the content of the material before it. The primary judge concluded at [36]-[37] that:

it is unlikely that the Tribunal overlooked entirely either of the statutory declarations which are not specifically mentioned in the Tribunal’s reasons. It follows that the reference to four rather than five post hearing submissions at [47] of the Tribunal’s reasons is not material.

Neither am I persuaded that the Tribunal failed to give proper, genuine or realistic consideration to the statutory declarations provided to it. The manner in which the Tribunal came to its decision is certainly not arbitrary or capricious or legally unreasonable.

17    The primary judge also correctly observed at [46] that a failure by the Tribunal to refer to a matter expressly does not necessarily lead to a finding a matter has not been considered by a decision-maker, citing: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2023] FCAFC 184; (2003) 236 FCR 593 at [47]; C7A/2017 v Minister for Immigration and Border Protection [2020] FCAFC 63; (2020) 276 FCR 147 at [101].The primary judge concluded at [48]:

There is no indication in the Tribunal’s reasons that it did other than assess the evidence that was before it by reference to the factors it was required under the Regulations to consider.

18    No error has been demonstrated in the primary judge’s approach.

19    Second, the primary judge also found no error by the Tribunal in not referring to the statutory declarations which were provided in support of the appellant’s family violence claim pursuant to reg 1.24 of the Regulations. As his Honour explained, in circumstances where the issue of family violence was not required to be considered by the Tribunal, the Tribunal did not need to assess the evidence in support of it. The primary judge observed there was no evidence the appellant had requested the Tribunal have regard to the statutory declarations for another purpose: at [50]. There is no error established in the approach of the primary judge.

20    Third, the appellant submitted that the Tribunal did not give sufficient weight to the material he provided. A proper reading of the Tribunal’s reasons indicates that is not correct. The Tribunal, for the reasons it described, decided to give little weight to the material. As the primary judge concluded, those findings were open to the Tribunal.

21    Given the complaint by the appellant, it is appropriate to refer to Minister for Immigration and Border Protection v Angkawijaya [2016] FCAFC 5; (2016) 236 FCR 303 (Angkawijaya), where the Full Court at [2] described that the task of the Tribunal involved:

a value judgment was required to be formed about whether two people had a mutual commitment to a shared life to the exclusion of all others that was genuine and continuing. That task involved careful and sensitive consideration of the evidence of the human relationship presented to the Tribunal. The task was a mixture of fact-finding and evaluative characterisation. 

22    The primary judge referred to Angkawijaya in rejecting the appellant’s contention that the Tribunal invoked a value judgment.

23    As reflected in the reasons of the primary judge, the Tribunal in its reasons explained why it did not give much weight to the evidence the appellant relied upon. The primary judge explained why there was no jurisdictional error established in that assessment. That reasoning reflects no error.

24    Fourth, after addressing the specific complaints, the primary judge considered the submission that the Tribunal failed to give proper consideration to the material presented by the appellant.

25    His Honour concluded at [48]:

Mr Aujla’s argument as presented amounts to an invitation to engage the Court in a review of the merits of those statements, and whether they supported the factors prescribed in regulation 1.09A of the Migration Regulations 1994 (Cth) (Regulations). It is not for the Court to assess the contents of the declarations and determine the weight that ought to have given to that evidence. That was a matter within the Tribunal’s jurisdiction. Mr Aujla submits that the Tribunal “deconstructed” Mr Aujla’s evidence. There is no indication in the Tribunal’s reasons that it did other than assess the evidence that was before it by reference to the factors it was required under the Regulations to consider.

26    In that context, the respondent correctly characterised that the appellant’s argument on the appeal is merely a challenge to the Tribunal’s evaluation and fact-finding.

Conclusion

27    The appellant’s submissions were in effect a plea to this Court to review the material he relied upon before the Tribunal to conclude that he was in a relationship. That is, a review of the merits of his matter.

28    The appellant has not identified or established any error in the approach of the primary judge. Accordingly, the appeal is dismissed, with costs.

Associate:

Dated:    2 April 2025