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Applicant Disputes Tribunal's Cancellation of Visa
The applicant was granted a permanent Partner visa on the basis of her relationship with her previous partner. The Tribunal found the applicant had failed to provide new information to correct previous information provided in relation to her visa application. The Tribunal decided to exercise its discretion under s 109 of the Act to cancel the applicant’s visa. The Court, in ruling on this dispute, assessed whether the Tribunal failed to properly address the applicant's submissions.
Facts:
On 26 June 2012, the applicant made an application while residing offshore for a Partner visa, nominating Mr. Uddin as her sponsor. According to the visa application form, the applicant married Mr. Uddin on 12 May 2012. On 17 December 2012, the applicant was granted a provisional Partner visa. The Applicant arrived in Australia on 31 December 2012. Mr. Uddin was outside Australia between 7 May 2014 and 4 November 2014.
On 1 September 2014, the applicant was granted a permanent Partner visa on the basis of her relationship with Mr. Uddin. On 12 November 2015, Mr. Uddin provided to the Department for Home Affairs (“the Department”) a copy of a divorce document issued by Bangladesh authorities on 10 September 2014. The basis for the divorce was stated as “Due to reason of not agree of having co-habitation with me as wife”. The document stated Mr. Uddin had divorced the applicant under the Sharia process of 1/2/3 Bain Talaq.
The applicant subsequently remarried her new partner, Mr. Ahmed on 5 February 2015. This followed her divorce from Mr. Uddin becoming final on 4 January 2015, 3 months after the 1/2/3 Bain Talaq process. On 23 December 2015, a delegate of the Minister (“the delegate”) sent to the applicant a Notice of Intention to Consider Cancel (NOICC) her visa. In the NOICC, the delegate put to the applicant information that she had provided in, and in support of, her partner visa application was incorrect having regard to information the Department had obtained.
This information suggested that the applicant was in a relationship with Mr. Ahmed prior to the grant of the Permanent Residency visa that was based on her relationship with Mr. Uddin. On 5 May 2016, the applicant, through her migration agent, responded to the NOICC. The submission suggested the Department was seeking to rely on uncorroborated and erroneous statements made by Mr. Ahmed during a Departmental interview, and that the applicant had been in a genuine relationship with Mr. Uddin at the time she was granted a Permanent Residency visa. On 20 May 2016, a delegate decided to cancel the applicant’s visa.
On 26 May 2016, the applicant applied to the Administrative Appeals Tribunal (“the Tribunal”) for a review of the delegate’s decision. On 8 December 2016, the Tribunal (differently constituted) affirmed the delegate’s decision. On 6 June 2017, this Court, differently constituted, by consent, ordered that the Tribunal’s decision be set aside and remitted the matter for reconsideration. The Tribunal found the applicant had failed to provide new information to correct previous information provided in relation to her visa application. The Tribunal decided to exercise its discretion under s 109 of the Act to cancel the applicant’s visa.
Issues:
- Whether or not the Tribunal failed to properly address the applicant's submissions.
- Whether or not there was a jurisdictional error.
Applicable law:
Migration Act 1958 (Cth) s 5F - where the term "marital relationnship" requires a consideration of the financial aspects of the relationship, the nature of the household, social aspects of the relationship and the nature of the persons’ commitments to each other.
Migration Act 1958 (Cth) s 104 - requires notification if circumstances change, such that an answer to a question on a non-citizen’s application form is incorrect.
Migration Regulations 1994 (Cth) regs 1.15A - required a consideration of the financial aspects of the relationship, the nature of the household, social aspects of the relationship and the nature of the persons’ commitments to each other.
BVD17 v Minister for Immigration and Border Protection [2019] HCA 34 - provides that it is the plaintiff in an application for judicial review of administrative action who has the onus of establishing on the balance of probabilities the fact on which a claim to relief is founded.
Cao v Minister for Immigration & Anor [2007] FMCA 225 - Riley FM properly recognise that whether an “extramarital” relationship renders a person’s marriage one that no longer meets the requirements of s 5F(2)(b) of the Act depends on the circumstances.
Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107 - provides that the Tribunal’s failure to mention those submissions give rise to an inference that it did not consider them.
CHZ19 v Minister for Home Affairs [2019] FCA 914 - settled that disclosure of investigative methods is a proper basis to claim public interest immunity.
He v Minister for Immigration and Border Protection [2017] FCAFC 206 - the Court referred to a number of authorities to the effect that a decision-maker is bound to consider each of the listed considerations by means of an active intellectual process, giving proper genuine and realistic consideration to each, and make findings in each of the prescribed matters by addressing them, not merely thinking about them.
Minister for Immigration & Border protection v Singh [2016] FCAFC 183; (2016) 244 FCR 305 - provides that procedural fairness requires the Tribunal to disclose the existence of the certificate to the applicant but not to disclose the contents of the information the subject of the certificate.
Minister for Immigration and Border Protection v Angkawijaya [2016] FCAFC 5 - relied upon in holding that whether the applicant had a mutual commitment to a shared life to the exclusion of all others with Mr Uddin at the relevant time necessarily required the Tribunal to make an evaluative judgement having regard to the legislative criteria.
Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 - provides that a breach is material if it denies the applicant an opportunity to give evidence or make arguments to the Tribunal and thereby deprives the applicant of the possibility of a successful outcome.
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 - provides that a decision cannot be said by reviewing Court to be illogical or irrational or unreasonable simply because the conclusion has been preferred to another possible conclusion.
Analysis:
It was submitted on 25 March 2018 the Tribunal sent an email to the applicant’s representative attaching a letter and a copy of a purported certificate under s 375A of the Act (see; CB 206). On 6 April 2018, the applicant made submissions to the effect that the certificate was clearly invalid.
Whether it was valid or not, the Tribunal should have provided a summary of the allegations contained in it. It was submitted that the Tribunal gave no consideration to the applicant’s submissions in its reasons for the decision and it did not give the applicant a summary of the allegations contained in the purported certificate.
The purported certificate was not mentioned in the Tribunal’s decision. The Tribunal’s failure to mention those submissions give rise to an inference that it did not consider them. Based on the concessions contained in the previous Court’s consent orders, remitting the matter back to the Tribunal for further consideration, this Court should infer that the Tribunal considered the information contained in the documents that were the subject of the s 359A certificate which contained information that would be part of the reason for affirming the decision under review.
By failing to appreciate that s 104 of the Act would be engaged, only if any relationship between the applicant and a current partner before the visa was granted was of the type that was incompatible with the existence of an exclusive marital relationship between her and the sponsor, the Tribunal failed to assess the nature, at the relevant time, of the relationship between her and the current partner in terms of the legislation.
Nowhere in the Tribunal hearing transcript does there appear to be any detailed questioning of the applicant as to what was in her mind as to the nature of her relationship with Mr. Ahmed, as compared to Mr. Uddin, at relevant stages prior to 1 September 2014. The conclusion in paragraph 169 of the Tribunal’s decision that the applicant and Mr. Uddin were not in a married relationship that was to the exclusion of all others is almost entirely based on the evidence of Mr. Ahmed in his interviews with departmental officers. It fails to take account of the necessary state of mind of the applicant as to whether at the relevant time, she was of the view that her relationship with Mr. Ahmed was incompatible with her relationship with Mr. Uddin.
Conclusion:
The Court is of the view that jurisdictional error has occurred and that the orders sought by the applicant should be granted.
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