Federal Court: Was the Tribunal "ill-advised" to say that it was unacceptable for the Appellant and his mother to state that the Department’s record was untrue? Could the motivation of the Appellant for entry into the relationship (i.e. to obtain permanent residency, as found by the Tribunal) be taken into account in order to determine whether the relationship was genuine? Was this a case where the "well is poisoned beyond redemption" such that 14 statutory declarations could be completely dismissed?
To avoid doubt, we are not expressing an opinion on the conduct of anyone or any entities or bodies. This is a mere summary of a court decision and should not be interpreted in any other way.
The Appellant (Mr Singh) applied for a partner visa, after which the Department sent officers to the village in India where his mother lived in order to conduct an interview with her.
The Appellant's mother was alleged by those officers to have said the following at the interview:
(a) Mr Singh had been studying in Australia but he had left his studies;
(b) Mr Singh had married his sponsor but had done so to get permanent residency in Australia; and
(c) she was aware that Mr Singh and his sponsor had a child but did not know the child’s date of birth.
A report was made of that visit and the Appellant was given a chance to comment on it, but a delegate of the Minister subsequently found that the relationship between the Appellant and the sponsor was not genuine and refused to grant him a partner visa.
The Appellant then applied to the Tribunal (AAT) for merits review of the delegate's decision. The Appellant gave evidence at a Tribunal hearing in person and his mother gave evidence over the telephone.
The evidence given by the Appellant's mother included the following exchange (emphasis added):
Member: Alright. The [Department] also talks about you saying that your son married this lady in order to get residence in Australia. What do you think about that?
[Mother]: I didn’t say anything like that. Why would I say anything like that? We see [Mr Singh’s wife] just like our own child and [Mr Singh] and [Mr Singh’s wife] are happy together.
Member: Well, you say that but where I’m sitting it seems to extraordinary that people would make that up you know. I find that unacceptable to tell me that the [Department] is lying.
[Mother]: I never said that [Mr Singh] married to gain permanent residency.
The Tribunal's record included the following passage about the mother's evidence (emphasis added):
The Tribunal asked [Mr Singh’s mother] why her son married the sponsor. She responded that was because they loved each other. She regards the sponsor as her child and loves her very much. The Tribunal referred [Mr Singh’s mother] to the part of the delegate’s decision that states she said [Mr Singh] married the sponsor to obtain permanent residency in Australia. She denied making that statement. The Tribunal put to her that it was not acceptable to state that the Department’s record was untrue. She repeated that she never said her son married the sponsor to obtain permanent residency.
The Appellant's evidence included the following exchange (emphasis added):
Member: Yes please. And your mother is reported as saying that you entered into the relationship with your wife for the reason of obtaining permanent residence in Australia.
[Mr Singh]: Yes.
Member: Did you understand that?
[Mr Singh]: Yes.
Member: So what’s your response to that statement in the department’s decision?
[Mr Singh]: Well, my mum she didn’t say anything like that. Why would anyone’s mum will say that to an immigration person - yes, my son or daughter is married to this man or woman just to get into the country or whatever? And I was still studying when I met my wife.
Member: Well I would say back to you that it’s a very unusual thing to say. That’s why I’m raising it.
[Mr Singh]: Because it’s all corruption in India and because they couldn’t get money from my mum because my mum was a sick lady and didn’t have anything to give to them and they just wrote whatever they have to write.
Member: Well, I think that’s a very dangerous thing to say about Australian government officials in India.
[Mr Singh]: Yeah of course you are just a little bit with them because (inaudible) after this we’re gonna make a big complaint. If you can’t think this is a real relationship, there must be something wrong then. I don’t know what a real relationship’s going to be.
Member: And what’s your big complaint?
[Mr Singh]: That they didn’t know what to say, they didn’t take any photos, they said there is no photos of me or my wife at home with the kids. Where as there’s all the photos on the walls and you can say later next to you he can explain it to them. And they say oh we went to the neighbour’s house and they don’t that know we were married. Because we didn’t get married in India. We just got married in Australia. First of all and they had a big concerned that in India, marriages are biggest things. Now if you go to India there is the people that don’t even know you got married or you just living by yourself. It’s that changed. It’s not now, it’s a couple of years ago.
The Tribunal's record included the following passage about the Appellant's evidence (emphasis added):
[Mr Singh] said that the untrue report about the home visit to his mother indicated “corruption” in the Department. The Tribunal warned [Mr Singh] not to make unfounded allegations with respect to officers of the Department.
The Appellant provided the Tribunal with 14 statutory declarations from friends and acquaintances about the genuineness of the relationship, but the Tribunal found as follows in that regard:
76. The Tribunal considers it is not plausible that the declarants would have spent time with the couple at their home during the 2.5 years [Mr Singh] was incarcerated. The Tribunal considers that by withholding the information that [Mr Singh] was incarcerated for 2.5 years of the period they have known the parties, the authenticity of the declarations is therefore significantly reduced. The Tribunal therefore gives the fourteen statutory declarations no weight.
The Tribunal found that the relationship was not genuine and thus affirmed the visa refusal.
The Appellant then applied to the Federal Circuit Court (FCCA) for judicial review of the Tribunal's decision, but the FCCA dismissed that application.
The Appellant eventually appealed the FCCA's decision to the Federal Court (FCA), the question to which were as follows:
Question 1: Was the Tribunal "ill-advised" to say that it was unacceptable for the Appellant and his mother to state that the Department’s record was untrue?
Question 2: If the answer to Question 1 is "yes", did the Tribunal's conduct give rise to a reasonable apprehension of bias?
Question 3: Could the motivation of the Appellant for entry into the relationship (i.e. to obtain permanent residency, as found by the Tribunal) be taken into account in order to determine whether the relationship was genuine?
Question 4: Was this a case where the "well is poisoned beyond redemption" such that the 14 statutory declarations could be completely dismissed?
The FCA answered those questions as follows:
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