Topcu v Minister for Immigration & Anor [2011] FMCA 469 (27 June 2011)

Last Updated: 30 June 2011

FEDERAL MAGISTRATES COURT OF AUSTRALIA

TOPCU v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 469

MIGRATION – Migration Review Tribunal – Partner visa – question of whether there was a genuine spousal relationship – challenge made to the Tribunal giving little weight to corroborative evidence supportive of a genuine spousal relationship – ground for review alleged the Tribunal failed “to give proper, genuine and realistic consideration of the evidence” – review dismissed.

Migration Act 1958 (Cth), s.359A Migration Regulations 1994, Schedule 2, subclause 820.211(2)(d)(ii) Schedule 3, subclauses 3001, 3003 and 3004

Abebe v Commonwealth (1999) 197 CLR 410 at 580; [1999] HCA 14 Dranichnikov v Minister for Immigration & Multicultural Affairs (2003) 77 ALJR 1088 Minister for Immigration & Citizenship v SZJSS & Ors [2010] HCA 48 Minister for Immigration & Citizenship v SZNPG & Anor [2010] FCAFC 51 Plaintiff S157/2002 v Commonwealth (2003) 195 ALR 24

Applicant:

MEHTI TOPCU

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

MLG 1095 of 2010

Judgment of:

O'Dwyer FM

Hearing date:

29 November 2010

Date of Last Submission:

29 November 2010

Delivered at:

Melbourne

Delivered on:

27 June 2011

REPRESENTATION

Counsel for the Applicant:

Mr Poynder

Solicitors for the Applicant:

Erskine Rodan & Associates

Counsel for the Respondent:

Mr Mosley

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

(1) The application filed on 3 August 2010, as amended on 8 October 2010, is dismissed.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE

MLG 1095 of 2010

MEHTI TOPCU

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

REASONS FOR JUDGMENT

Introduction

1. By his application the Applicant seeks to review the decision of the Migration Review Tribunal (the Tribunal) dated 2 July 2010, which decision affirmed an earlier decision by the First Respondent’s delegate not to grant the Applicant a Partner (Temporary)(Class UK) visa, or a Partner (Residence)(Class BS) visa.

Background

2. The Applicant is a national of Turkey who was employed as a ship’s cook when he arrived at Fremantle Port on 28 December 2005.
   He “jumped ship” there and entered Australia unlawfully. He travelled to Melbourne where he met his future wife, who is an Australian citizen. They married on 28 May 2006 and on 15 December 2006 the Applicant lodged an application for a subclass 820 Partner visa.
3. As the Applicant was not the holder of a substantive visa, pursuant to subclause 820.211(2)(d)(ii) in Schedule 2 of the Migration Regulations 1994, he must satisfy Schedule 3 criteria 3001, 3003 and 3004 (the Schedule 3 criteria); unless the Minister is satisfied that there are compelling reasons for not applying those criteria.

The Tribunal’s Decision

4. The Tribunal, in its decision addressed all the Schedule 3 criteria in some detail in the context of the evidence as presented by the Applicant and his wife. The Tribunal found that evidence contradictory and inconsistent, and in its decision highlighted those aspects. In assessing the evidence before it, the Tribunal concluded that the contradictions and inconsistencies in the evidence between the Applicant and his wife were such that it raised concerns in the mind of the Tribunal about the nature of the household and whether there was, despite a formal marriage, a spousal relationship. The Tribunal found it was not satisfied that the Applicant and his wife had a commitment to each other; or that the relationship is genuine and continuing; or that there was a mutual commitment to a shared life as husband and wife to the exclusion of all others. In so finding, the Schedule 3 criteria were not met and there was no compelling reason for not applying those criteria.
5. Before determining the matter the Tribunal wrote to the Applicant on 14 August 2009 pursuant to section 359A of the Migration Act 1958 (the Act) highlighting the concerns it had about the inconsistencies in the evidence and how that might be the reason, or part of the reason, for affirming the delegate’s decision. It is to be noted that the Applicant failed to respond to that letter in a way that addressed the concerns raised.
6. Pertinently, the Tribunal examined and addressed the corroborative evidence about the nature of the spousal relationship that was proffered by the Applicant. That evidence consisted of two pieces of correspondence, two statutory declarations and the evidence of two witnesses. This corroborative evidence, and how the Tribunal treated it, forms the basis of the review as set out below. One piece of correspondence was from Ms Elena Zolkover who is a counselling consultant and extreme trauma specialist to whom the Applicant, his wife and her son had gone for support and counselling. The second piece of correspondence was from Dr Boris Goloub, a psychologist who provided an assessment of the Applicant’s psychological state and who offered an explanation for the inconsistent evidence given by the Applicant’s wife. He suggested it was as a result of her drug taking.
7. The two short statutory declarations of Mr Cafer Kocamis and
   Mr Muanner Incekar, and the oral evidence of Mr Arkin and Mr Atay were given little weight by the Tribunal for reasons set out in the decision.
8. In respect of the correspondence from Ms Zolkover and Dr Goloub the Tribunal also gave, in my view, cogent reasons as to why it also gave that evidence little weight.
9. It is the little weight given by the Tribunal to that evidence, and the reasons expressed for doing so, with which the Applicant takes issue and forms the basis of this review before me.

Grounds for Review

10. The Applicant expresses only one ground for review, but provides four instances of where that ground is exemplified. The ground for review is expressed as follows:
    • The second respondent failed to give proper, genuine and realistic consideration to evidence provided by the applicant that corroborated his claims.

Particulars

(a) The second respondent failed to give proper, genuine and realistic consideration to the statutory declarations of Cafer Kocamis and Muanner Incekar, which corroborated the applicant’s claim that he and his wife represented themselves as a married couple to their community, that they had mutual commitment to each other, and that their relationship was genuine and continuing.
(b) The second respondent failed to give proper, genuine and realistic consideration to the oral evidence of Mazlun Ali Arkin and Yahya Atay, which corroborated the applicant’s claim that he and his wife lived together, that they had been in a relationship for at least three years, and that they represented themselves as a married couple to their community.

• (c) The second respondent failed to give proper, genuine and realistic consideration to the letter of Ms Elena Zolkover, who corroborated the applicant’s claim that he and his wife had been in a stable relationship for some time, during which period she had been providing them with family counselling.
• (d) The second respondent failed to give proper, genuine and realistic consideration to the medical report of Dr Boris Goloub, which corroborated the applicant’s claim that his spouse was partially incapacitated from giving evidence at the hearing of his application on 11 August 2009.

Considerations

11. The expression “proper, genuine and realistic consideration” was considered by the High Court in Minister for Immigration & Citizenship v SZJSS & Ors[1] in a similar context to the one before me; save that it was a Refugee Review Tribunal’s decision under review.
    In that case a determination of the Federal Magistrates Court, which affirmed an earlier decision by the Tribunal to refuse a protection visa was overturned by the Federal Court. In the Federal Court his Honour Rares J, when examining the issue of ‘no weight’ being given to correspondence by the Tribunal, stated;
    • The ... [T]ribunal, did not find that the two headmasters were prepared to write falsehoods in the letters. I cannot conceive how any rational, reasonable approach to the evaluation of that evidence could give it ‘no weight’. I am satisfied rather that the ...[T]ribunal was not genuinely considering the [respondents’] claims as corroborated by the letters on the material before it. It used the formula of giving material ‘no weight’ as a basis on which it might ignore probative, relevant and highly supportive material corroborating the factual basis of the fears which the [first respondent] claimed. It did this simply as a basis for putting the evidence to one side, having said that it had looked at it. ...
    • I am of the opinion that when the ... member said that he gave no weight to the three letters, he simply recited that he had considered them only to discard them. This was not a proper, genuine or realistic evaluation of this material. ...
12. I understood the Applicant before me was making the same contention but in the context of the correspondence referred to, together with the statutory declarations and oral evidence. In considering the decision of the Federal Court, the High Court examined and restated some of the principles applying in such cases; including the principle that the weighing of various pieces of evidence is a matter for the Tribunal.[2]
13. When considering the letters the High Court said:
    • 35. Whether the letters were “highly supportive” or “powerfully corroborative” (as they appeared to the Federal Court) of the first respondent’s claim that Maoists were pursuing him in Kathmandu was a question upon which reasonable minds might come to different conclusions. The Tribunal’s preference for other evidence, including the first respondent’s own evidence about numerous matters, including the effect of social and political changes from, and since, 2006, over the evidence of letters written during the first half of 2006, could not be said to constitute a failure to take into account a relative consideration as canvassed in Peko-Wallsend or Yusuf’s case. Nor could it be said to be a failure to respond to a substantial argument thereby giving rise to the kind of error identified in Dranichnikov v Minister for Immigration & Multicultural Affairs (2003) 77 ALJR 1088.
    • 36. The conclusion of the Tribunal erred in giving “no weight” to the letters, with the implication that it should have given different, presumably determinative, weight to them, dependent on the Federal Court reviewing the factual findings of the Tribunal rather than the process by which it arrived at its conclusion.
    • 37. Further, the Federal Court’s conclusion that the Tribunal erred in this way did not, in the light of the whole of the evidence, require a further consideration that the result in the Tribunal was manifestly irrational or unreasonable. Nor did it support a finding of any other failure which might be characterised as jurisdictional error.
14. In a similar fashion, the Applicant before me, as I understood his contentions, sought to challenge the merit of the findings made by the Tribunal when it gave little weight to the corroborative evidence.
    In my view the Tribunal gave an explanation for the giving of such little weight to that evidence, and whilst “reasonable minds might come to different conclusions”, it is my view that it was open on the evidence before the Tribunal, including the whole of the evidence, in particular the inconsistencies and contradictions of the evidence of the Applicant and his wife, to come to the conclusion and assessment the Tribunal did as to what weight ought to be ascribed to the corroborative evidence.
15. In my view, the Applicant’s complaints concerning the Tribunal’s consideration of the material are essentially concerned with the fact finding of the Tribunal, and the weight given to the material, and is thus an impermissible invitation to undertake a merits review of the Tribunal’s decision.
16. It cannot, and should not, be forgotten that the Applicant’s credibility was squarely an issue in this case. The Tribunal noted repeatedly the inconsistencies and contradictions between the evidence of the Applicant and the wife. Despite the opportunity at the hearing to address those inconsistencies and further as a consequence of the letter sent pursuant to s.359A of the Act those inconsistencies remained unresolved. In light of the concerns regarding the core issue of the genuineness of the spousal relationship, the Tribunal was entitled to give such weight to the corroborative evidence as it deemed appropriate.
17. The Tribunal does not fall into error by first making an assessment of the Applicant’s credit and then giving attention to corroborative evidence.[3] The Tribunal considered the corroborative evidence, but determined to give that evidence little weight, in light of both the unresolved inconsistent and contradictory evidence given by the Applicant and his wife, and the other specific reasons given. In my view, it was open to the Tribunal to do so.

Conclusion

18. For the Applicant’s claim for prerogative relief to be successful he must show a jurisdictional error on the part of the Tribunal in the sense discussed in Plaintiff S157/2002 v Commonwealth[4]. For the above reasons, the Applicant has failed to demonstrate jurisdictional error. The application for review filed on 3 August 2010, as amended on
    8 October 2010, should be dismissed.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of O’Dwyer FM

Associate:

Date: 27 June 2011

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[1] [2010] HCA 48.
[2] Abebe v Commonwealth (1999) 197 CLR 410 at 580 [197] per Gummow and Hayne JJ; [1999] HCA 14.
[3] Minister for Immigration & Citizenship v SZNPG & Anor [2010] FCAFC 51 at [21]- [28] and [35].
[4] (2003) 195 ALR 24.