Dao v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 605
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Dao v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 605
File number(s): SYG 1600 of 2019 Judgment of: JUDGE LAING Date of judgment: 3 August 2022 Catchwords: MIGRATION – application for judicial review of a decision by the Administrative Appeals Tribunal affirming decision to cancel the applicant’s Subclass 801 (Spouse) visa – whether the Tribunal made an unsupported assumption that the applicant’s child had an existing legal right to enter and reside in Vietnam – whether there was a material breach of s 362A of the Migration Act 1958 (Cth) – whether evidence provided to the Tribunal by a witness was ‘information’ capable of enlivening s 359A of the Migration Act 1958 (Cth) – application dismissed. Legislation: Freedom of Information Act 1982 (Cth)
Migration Act 1958 (Cth) ss 109(1), 359A, 362A
Migration Regulations 1994 (Cth) reg 2.41
Cases cited: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CQZ15 [2021] FCAFC 24; 284 FCR 455
Minister for Immigration and Border Protection v Dhillon [2014] FCAFC 157; 227 FCR 525
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41; 395 ALR 403
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 390 ALR 590
Springs v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 197
SZBYR & Anor v Minister for Immigration and Citizenship [2007] HCA 26; 96 ALD 1
Division: Division 2 General Federal Law Number of paragraphs: 61 Date of hearing: 26 April 2022 Place: Sydney Counsel for the Applicant Mr R. Chia Solicitor for the Applicant TQH Lawyers and Consultants Counsel for the First Respondent Mr M. Cleary Solicitor for the First Respondent TQH Lawyers and Consultants Counsel for the Second Respondent Did not participate ORDERS
SYG 1600 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DUY BAO DAO
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MIGRANT SERVICES
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LAING
DATE OF ORDER:
3 AUGUST 2022
THE COURT ORDERS THAT:
1.The application be dismissed.
2.The applicant pay the first respondent’s costs, as agreed or assessed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LAING
INTRODUCTION
Before the Court is an application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). The Tribunal affirmed a decision of a delegate (Delegate) of the first respondent (Minister) to cancel the applicant’s Subclass 801 (Spouse) visa (Visa) under s 109(1) of the Migration Act 1958 (Cth) (Act).
The applicant is citizen of Vietnam who first arrived in Australia in 2009 as the holder of a student visa. In 2011, he applied for a Subclass 820 Partner (Temporary) visa. This was sponsored by an Australian citizen to whom the applicant claimed to be validly married (Sponsor). The applicant was granted that visa on 24 September 2012 and was subsequently granted the Visa on 17 September 2013.
In support of his Visa application, the applicant gave information that he had never been married or in a de facto relationship before, that he was not legally married to another person and that he had no children. He also provided a marriage certificate showing that he had married the Sponsor on 11 October 2010.
By letter dated 21 March 2018, the applicant was sent a Notice of Intention to Consider Cancellation under Section 109 of the Migration Act 1958 (NOICC) from the Department of Home Affairs (as it was) (Department). The NOICC noted that the applicant had provided the Department with the following information in his Visa application (inter alia):
·On page 9, to the question “Have you been married before?” you answered “No”.
·On page 13, you were asked to provide details of your children and you declared “N/A”.
·On page 19, to the question “are either of you still legally married to another person?” you answered “No”.
It was also noted that the applicant had provided an Australian marriage certificate indicating that he was married to the Sponsor.
On page 3 of the NOICC, the Department noted that, since the applicant was granted the Visa, the following information had come to light:
•The Department conducted further checks and the Vietnamese authorities confirmed that you are married to a person other than your sponsor and that this marriage took place on 9 October 2005 at People’s Committee of Cu Bi Hamlet, Chau Duc District, Ba Ria – Vung Tau province, Vietnam. The Department has also received information that you have a daughter from this marriage who was born on [redacted].
•The Department received information that you and your wife in Vietnam are not divorced and remain married.
•The Department received information, which suggests that you obtained a fraudulent single status certificate for your Partner (820/801) visa application and you will be sponsoring your real wife to Australia possibly 12 months after your separation with your sponsor, as you need to arrange a divorce from your sponsor.
The NOICC provided the applicant with an opportunity to respond in writing within 14 days. On 29 March 2018, the applicant’s representative responded, enclosing a number of forms and supporting documents including a statutory declaration made by the applicant, also dated 29 March 2018. In that statutory declaration, the applicant claimed that his relationship with the Sponsor was exclusive and genuine. The applicant also stated that:
·he considered his marriage to his wife in Vietnam (Wife) as having ended in late 2008;
·when he left Vietnam in 2009, he had filed a divorce application, but he did not follow up on these documents and assumed the divorce was finalised;
·prior to his marriage to the Sponsor, the applicant had asked his parents in Vietnam to obtain a single status certificate on his behalf, which they were able to do without any issues;
·when the applicant informed his Wife that he had married the Sponsor, she did not say anything to indicate that they were still married;
·his relationship with the Sponsor had broken down in December 2013 and they formally separated; and
·if given an 8-week extension by the Department, he could provide a divorce certificate regarding the marriage to his Wife.
On 15 May 2018, the applicant provided further evidence including a statutory declaration in which he acknowledged errors within his application for the Visa. In it, the applicant stated that he had not filed an application for divorce regarding his Wife, but rather, that he had paid a friend to do so. The applicant also stated that he was in a relationship with a non-Australian citizen (Partner), with whom he had an Australian citizen child, born 30 April 2018 (Child). The applicant expressed concern regarding the impact of his Visa cancellation on his Child.
On 20 July 2018, the Delegate cancelled the applicant’s Visa pursuant to s 109 of the Act.
On 23 July 2018, the applicant applied to the Tribunal for review of the Delegate’s decision.
On 24 July 2018, the applicant (through his representative) requested a full copy of his file from the Tribunal under the Freedom of Information Act 1982 (Cth). On 25 July 2018, the Tribunal wrote to the applicant (through his representative) informing him that his request had been transferred to the Department of Home Affairs (Department).
On 8 March 2019, the applicant’s representative wrote to the Tribunal requesting, pursuant to s 362A of the Act, the material that had been provided to the Tribunal for the purposes of the review.
The applicant attended a hearing before the Tribunal on 13 March 2019. On 14 March 2019, the applicant (through his representative) made a further request for material under s 362A of the Act. On 18 March 2019, the Tribunal responded by stating access had been granted with the exception of certain documents which included the following:
Letter dated 21 August 2017 departmental correspondence containing third party information; Letter dated 24 February 2014 from the sponsor; and letter dated 8 January 2010 information containing third party information. All these letters from departmental file CLF2011/100006 are fully excluded from disclosure under Australian Privacy Principle (APP 6) set out in Schedule 1 of the Privacy Act 1988 as they contain personal information about another person and I am not satisfied that disclosure is permitted under APP 6.
Letter dated 8 January 2010 of departmental site report and has not been determined by the Member. Accordingly, it is excluded from release letters from departmental file CLF2011/100006.
On 29 May 2019, the Tribunal affirmed the Delegate’s decision.
THE TRIBUNAL’S DECISION
At [3]-[13] of its reasons, the Tribunal summarised the factual background of the applicant’s case and the Delegate’s decision. It then summarised the evidence given to the Tribunal by the applicant and other witnesses (at [14]-[47]).
At [55], the Tribunal found that the applicant had not complied with s 101 of the Act in the manner described in the NOICC. The Tribunal made this finding on the basis that the applicant had acknowledged that (at [53]-[54]):
(a)he provided incorrect information to the Department when he claimed in his application that he had not previously been married and that he did not have a child;
(b)at the time of the application, he was legally married to his Wife and he had a child of that relationship, born in 2006; and
(c)the marriage certificate provided in support of the application was a bogus document, obtained through false claims that he had never been validly married and was not married at the time of his marriage to the Sponsor
Having found that the applicant had not complied with s 101 of the Act, the Tribunal considered whether the Visa should be cancelled pursuant to s 109(1), noting that cancellation was discretionary. The Tribunal considered the circumstances set out in reg 2.41 of the Migration Regulations 1994 (Cth) in deciding whether to exercise the discretion to cancel the applicant’s Visa. It made the following findings:
(a)‘the correct information’ was that the applicant was married at the time of the Visa application and had not made any application to divorce his Wife. He also had a child from his marriage whom he had not disclosed to the Department in his Visa application (at [59]);
(b)the marriage certificate provided in support of the application was a bogus document (at [60]-[61]); and
(c)the failure to provide the correct information about his previous marriage and his child prevented the Department from properly assessing the Visa application and from making further enquiries as to the genuineness of the relationship (at [62]-[67]).
In considering the circumstances in which the non-compliance occurred at [68] to [80], the Tribunal did not accept:
(a)the applicant’s explanation for failing to disclose his marital status and that he had a child to his Wife in Vietnam, being that he did not want to disclose this information to the Sponsor as he feared it may affect his relationship with her;
(b)the applicant’s claim to have been unaware that he had not validly divorced his Wife in Vietnam, or his account of steps taken to obtain a divorce certificate. The Tribunal observed significant inconsistencies in the applicant’s claims in this regard; or
(c)that the applicant was genuinely remorseful for providing false information.
Having rejected those aspects of the applicant’s claims and explanations, the Tribunal found at [80] that the applicant deliberately provided the false information to support his partner visa application, and avoided providing information that could have led the Department to undertake further investigations into the genuineness of the relationship with the Sponsor. The Tribunal also formed the view that the applicant’s actions since the Department issued the NOICC indicated that the applicant continued to be willing to provide false information to obtain a favourable immigration outcome (at [79]).
The Tribunal considered the present circumstances of the applicant, and observed from [81] to [92] that:
(a)the applicant claimed that his relationship with the Sponsor ended in December 2013, three months after being granted the Visa. However, there were doubts as to the credibility of this claim given that the applicant had previously provided false statements and information;
(b)the applicant claimed to be in a relationship with his Partner, which had begun in January 2017. At that time, the Partner was applying for a partner visa on the basis of a relationship with another person (Partner’s Husband), and was claiming to be in a genuine, continuing and exclusive relationship that person. This was in contrast to her claims to the Tribunal that she was in a relationship with the applicant and had been pregnant to him in 2017. The Partner’s visa application was refused in 2018;
(c)the applicant and his Partner have a Child together, born on 30 April 2018. The applicant took steps to obtain an Australian passport for his Child on the basis of his permanent residency. The Child’s Australian citizenship was confirmed on 10 September 2018 (after the applicant became aware of the decision to cancel his Visa);
(d)the applicant was employed as a baker, and was supporting himself, his Partner and their Child. The Tribunal noted the absence of any credible information supporting the applicant’s claim that he also provided financial support for his child in Vietnam.
The Tribunal found at [90] that if the applicant returned to Vietnam, he would be able to find employment there. The Tribunal accepted that the income and conditions would likely not be as advantageous as in Australia. The Tribunal accepted that the applicant wished to remain in Australia, and that the applicant had employment and social ties in the Vietnamese community in Australia (at [92]).
The Tribunal considered the applicant’s subsequent behaviour concerning his obligations under the Act (at [93]-[95]). The Tribunal noted that, in the applicant’s response to the NOICC, he had acknowledged that he had provided false information to the Department. However, the Tribunal considered the inconsistent information provided by the applicant in relation to his claimed steps to divorce his Wife in Vietnam. It also took into account the fact that the applicant only made admissions in relation to his Wife and child in Vietnam after incontrovertible evidence had been put to him of the false information he had provided. In light of those matters, and noting that the applicant continued to claim that he had taken steps to divorce his Wife in Vietnam despite seemingly knowing this to be false, the Tribunal did “not place any weight in favour of the applicant as to the admissions he ha[d] made” (at [95]).
The Tribunal accepted that there were no other instances of non-compliance that had been identified. It also accepted that nearly 8 years had passed, during which the applicant had resided primarily in Australia. The Tribunal accepted that there was no information before it that the applicant had breached any criminal laws (at [96]-[98]).
The Tribunal placed some weight favouring the applicant upon his contribution to the community. In this regard, the Tribunal accepted that the applicant had been involved in the Buddhist temple and had participated in volunteer work there. However, the weight given to this was limited by the Tribunal’s finding that his contribution had been minimal and aimed towards his own social interests rather than providing any lasting benefit to the community (at [99]-[100]).
As the Tribunal’s reasoning in considering the effect of any cancellation on the applicant’s Child is central to these proceedings, it is useful to reproduce this part of the Tribunal’s reasons in full:
Effect of any cancellation on a child
101.The applicant has a child to his relationship with [his Partner]… who was born on… and is now one year old. It was claimed that she became an Australian citizen on 10 September 2018 on the basis of her father holding the right to reside permanently in Australia. That citizenship was granted to her after the Department had made a decision cancelling his visa. [The Partner], at that time, held a Bridging visa on the basis that she had been refused a Partner visa claiming to be in a relationship with a different person and was seeking a review of the Department’s decision refusing that application.
102.It is claimed that [the Partner] is again pregnant to the applicant, however, no information has been provided with respect to this child.
103.The applicant provided a report from Dr Lowy in respect to various aspects of the applicant’s relationship with [his Child]. It is clear the applicant and [his Partner] have a good relationship with each other and with their child. Dr Lowy gave the opinion that it was important for [the Child] that she have her mother and father present as she develops. She gave the opinion that if the applicant was to return to Vietnam as a result of his Partner visa being cancelled and [his Partner and Child] were to remain in Australia there would be a disruption to the family unit as well as to the father/daughter relationship which would have adverse consequences on [his Child’s] physical and psychological well-being in the present as well as in the future.
104.Dr Lowy did not have any significant experience in dealing with Vietnamese families. She claimed to have seen one or two other Vietnamese clients and did not have any specialist knowledge as to life in Vietnam. She described Vietnam as a third world country and it would be difficult for anybody to live there although had never been there herself. She claimed she had obtained this information by being told by some of her Filipino clients. She believed that if the applicant and [his Partner] returned together to Vietnam with [their Child] they would be able to give her the same love and affection she would receive in Australia and would be able to develop appropriately.
105.[The Child’s] parents are both Vietnamese citizens. [The Partner’s] Partner visa application has been refused and she is currently seeking a review by the Tribunal on the basis that she will then apply for ministerial intervention. She does not appear, at this time, to be entitled to apply for or be granted any visa to reside in Australia.
106.Both the applicant and [his Partner] have extended family members who continue to live in Vietnam. They have no close relatives living in Australia. The applicant’s eldest daughter continues to live in Vietnam. There is nothing to indicate the parties would not be able to return to Vietnam with [their Child] to live and provide all the financial and emotional support to ensure she develops properly. There is nothing to indicate if the applicant and his family were living in Vietnam they would not get support from their extended families who continue to live there.
107.It is claimed that if [the Partner] is required to depart Australia she intends to leave [their Child] in Australia, despite having no family or any other person available to look after her. It is claimed that she would leave [her Child] to become a ward of the state. The Tribunal does not accept this. The report from Dr Lowy indicates [the Partner] has a close relationship with [her Child] and that the threats made by [the Partner] to abandon [her Child] are made to obtain an immigration outcome rather than a genuine intention to abandon her daughter.
108.The Tribunal accepts that if the applicant, [his Partner] and [their Child] were allowed to remain in Australia they may face greater opportunities than if the family is required to return to Vietnam. The Tribunal gives some weight to this factor when considering whether the visa should be cancelled.
The Tribunal found that both the applicant and his Partner had arranged for their friends to provide false and misleading information to the Department, and that the applicant was aware of the false and misleading information provided by his Partner. The Tribunal found that the applicant had supported his Partner in obtaining that information with a view to deceiving the Department into believing that she and the Partner’s Husband were in a genuine relationship (at [109]-[120]).
In its overall assessment of the circumstances, the Tribunal stated at [121]:
121.The Tribunal has considered all the circumstances of the applicant and his family both individually and cumulatively. The most significant reason for not cancelling the applicant’s visa is how the cancellation of the visa would affect his daughter... [His Child] is an Australian citizen based on an application brought by her parents even though at the time she was officially confirmed as an Australian citizen the Department had cancelled the applicant’s Partner visa and both he and [his Partner] only held Bridging visas. As set out above, the Tribunal finds that if the applicant’s visa is cancelled it is likely that the applicant, [his Partner] and [their Child] to will all return to Vietnam to live together. The Tribunal acknowledges that the opportunities that are available to [their Child] in Vietnam are likely to be less than the opportunities and advantages she would have if living in Australia.
However, the Tribunal considered that the applicant had repeatedly provided false and misleading information in respect of his relationship with his Wife in Vietnam, his attempts to obtain a divorce from his Wife in Vietnam, his relationship with the Sponsor, and the Partner’s relationship with the Partner’s Husband. The Tribunal gave this considerable weight in considering whether to cancel the Visa (at [122]).
Having considered all the information before it, the Tribunal concluded that the grounds for cancelling the Visa outweighed the reasons for not doing so. Accordingly, the Tribunal affirmed the Delegate’s decision (at [123]-[125]).
PROCEEDINGS BEFORE THIS COURT
The applicant commenced the current proceedings on 26 June 2019. The applicant was subsequently granted leave to rely upon an amended application, without objection. The grounds ultimately relied upon by the applicant were as follows:
1.The Second Respondent (the Tribunal) erred by making findings of fact that were unsupported by evidence.
Particulars
a.The Tribunal, at [121] of its decision, considered that if the Applicant’s visa was cancelled, it was likely that he, his partner, and his daughter [their Child] who is an Australian Citizen, would all return to Vietnam to live together.
b.In making the finding at [121] and elsewhere in its decision, the Tribunal proceeded on the unstated assumption that [the Child] had an existing legal right to enter and reside in Vietnam.
c.There was no evidence before the Tribunal that [the Child] had any existing legal right to enter and reside in any country other than Australia, at the time of the Tribunal’s decision.
d.The matters referred to above in (a)-(c) were relevant to the Tribunal’s consideration of the exercise of the discretion to cancel the Applicant’s visa. Consequently the Tribunal’s decision was affected by jurisdictional error.
2.Further or in the alternative, the Tribunal’s findings were made in breach of the applicant’s entitlement under section 362A of the Act to access written material.
Particulars
Request dated 8 March 2019 (Court Book page 285)
Response dated 18 March 2019 (Court Book page 355)
3.Further or in the alternative to 1 and 2, the Tribunal failed to give information and invitation in accordance with section 359A of the Act.
Particulars
Oral evidence of Eva Lowie that the applicant regularly spoke to his child living in Vietnam and that if [the Child] returned to Vietnam she will be able to develop appropriately.
Ground 1
By ground 1, the applicant contended that the Tribunal made an unstated assumption, without evidence, that the applicant’s Child had an existing legal right to enter and reside in Vietnam. The applicant contended that this finding was not open to the Tribunal. He submitted that the evidence before the Tribunal indicated that the applicant’s Child had only acquired Australian citizenship. He submitted that the apparent lack of any right for her to enter and reside in Vietnam was a practical and legal impediment to her being able to live there. The Tribunal’s failure to make findings on this issue was contended to have resulted in jurisdictional error.
Paragraph 121 of the Tribunal’s decision, with which the applicant takes issue, is extracted above. There, the Tribunal found that it was likely that the applicant’s Partner and Child would return to Vietnam to live with the applicant.
The Tribunal’s findings in this regard should be understood within context. They followed a finding that had been made in even stronger terms by the Delegate that the applicant’s Partner and Child “would be able to voluntarily return to Vietnam with the visa holder to maintain their family unit”.
Despite this finding, neither the applicant nor any of his witnesses (including the Child’s mother) sought to negate it by submitting that the Child had no right to reside in Vietnam due to the fact that she was born in Australia (to parents who were both Vietnamese citizens) and had subsequently acquired Australian citizenship.
Instead, the evidence put forward by the applicant indicated an understanding on his part, and on the part of his Partner and representatives, that no such impediment existed. This included:
(a)submissions by the applicant’s representatives dated 15 May 2018, which stated that the Child would benefit from growing up in Australia “as compared to Vietnam where she would be compelled to live” if her father’s visa remained cancelled;
(b)Dr Lowy’s report, which stated the Partner had reported she would not let her daughter return to Vietnam due to fewer opportunities and a lesser quality of life (without referencing any legal impediment to her living there). Dr Lowy’s report also referred to the disadvantages the Child would face “[i]f it was decided that the mother and [Child] would also return to Vietnam”;
(c)the applicant’s statutory declaration dated 11 March 2019, in which the applicant raised as an impediment that he could not take his Child to Vietnam “as [he] could not support her” there (without raising any legal impediment to her living there);
(d)the Partner’s statutory declaration dated 8 March 2019, in which she claimed that she would not “let” her Child live with the applicant in Vietnam because she did not want her daughter to be raised there;
(e)the applicant’s statutory declaration dated 11 April 2019, in which he raised as impediments the difficulties his Child would face if she grew up in Vietnam (without raising any legal impediment to her living there); and
(f)submissions by the applicant’s representatives dated 29 April 2019, which referred to difficulties that the applicant’s Child would experience if she “was required to return to Vietnam” (again, without raising any legal impediment to her living there).
I accept Mr Cleary’s submission for the Minister that the above material provided some evidentiary basis for the Tribunal’s findings, when taken together with the lack of contestation of the Delegate’s findings and the Tribunal’s observation at [106] that there was “nothing to indicate the parties would not be able to return to Vietnam with [their Child] to live”. A strict ‘no evidence’ ground is therefore unable to succeed: see Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41; 395 ALR 403 (Viane) at [17] per Keane, Gordon, Edelman, Steward and Gleeson JJ.
Mr Chia additionally submitted that the evidence before the Tribunal indicated that the Child did not have the right to enter and reside in Vietnam because she had acquired Australian citizenship and the evidence did not indicate that she had acquired citizenship or any other legal right to enter and reside in Vietnam. However, the cogency of that submission depends on the laws and practices of Vietnam. I was not directed to any evidence that was before the Tribunal demonstrating that such rights could not have been automatically acquired or available to a child born to two parents who were Vietnamese citizens. Given this, and the material before the Tribunal indicating a universal understanding that the Child could lawfully reside in Vietnam, I am not persuaded that the Tribunal’s reasoning was closed to the Tribunal.
For the above reasons, I am not persuaded that Ground 1 ought to succeed. In light of this conclusion, it is ultimately unnecessary for me to determine the Minister’s alternative submission that the finding was capable of being informed by the Tribunal’s personal or specialised knowledge in the manner considered in Viane at [18]. Such a question poses interesting questions regarding the reasons required to be given under the respective statutory regimes under consideration in this case and in Viane. It will have to await determination on another day, when it is capable of influencing the outcome of proceedings.
Ground 2
By ground 2, the applicant contended that the Tribunal’s findings were made in breach of the applicant’s entitlement under s 362A of the Act to access written material given or produced to the Tribunal for the purposes of the review.
At the hearing, Mr Chia informed the Court that the ground was confined to a letter dated 24 February 2014. The Tribunal refused to grant the applicant access to this document, relying upon APP 6. The Minister conceded that this letter should have been provided to the applicant. Based upon the decision in Minister for Immigration and Border Protection v Dhillon [2014] FCAFC 157; 227 FCR 525, the Minister accepted that APP 6 did not provide a basis for refusing access.
The 24 February 2014 letter is a letter from the Sponsor that spans 48 pages. On careful analysis, the letter details claims regarding the applicant’s prolonged mistreatment of the Sponsor, who alleges that he used her to obtain permanent residence in Australia. The letter conveys serious hurt and damage that the applicant is claimed to have done to this woman, who claims that she was deceived into (inter alia) believing that the applicant truly loved her. The Sponsor claims that the applicant deceived her, took her money, stole property from her and her child, and gave the Sponsor a sexually transmitted disease acquired through being with other women during the course of their relationship. The letter also indicates the applicant intentionally deceived the Department in relation to his Vietnamese Wife. In the letter, the Sponsor repeatedly begs the Department to cancel the applicant’s Visa. She submits that not to do so would be unfair to her.
As will be apparent from the above, the letter relied upon under this ground was potentially quite prejudicial to the applicant. It was not disclosed to him. If I was persuaded that the letter had any material affect upon the Tribunal’s decision, I would have little difficulty in finding that this resulted in jurisdictional error. This is in circumstances where the applicant had no opportunity to attempt to negate any adverse effect from the letter.
In this regard, Mr Clearly relied (in written submissions and at the hearing) upon the High Court’s decision in MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 390 ALR 590 (MZAPC). Mr Cleary submitted that there was no basis on the face of the Tribunal’s decision for finding that this letter was taken into account by the Tribunal. In the absence of such evidence, Mr Cleary submitted that materiality was unable to be demonstrated. If there was no adverse effect upon the Tribunal’s decision capable of negation by the applicant, then denial of an opportunity to do so could not have affected the outcome.
During the hearing, I discussed MZAPC with Mr Chia, with particular focus upon the reasoning at [65]-[72]. Mr Chia confirmed that he was familiar with the decision in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CQZ15 [2021] FCAFC 24; 284 FCR 455, which is referred to in those paragraphs. However, he did not seek to advance a ground based upon apprehended bias. Instead, Mr Chia contended that I should infer that information in the letter was taken into account by the Tribunal and therefore had a material effect on the Tribunal’s decision.
In this regard, Mr Chia relied upon [69] of the Tribunal’s decision, which was as follows:
69. The sponsor at the time of the claimed marriage had been married on two previous occasions. She had two children to her first husband who she divorced in 1997. She had a child to her second husband who she divorced in March 2010. The fact that the sponsor had previously been married on two occasions and had three children from her two marriages indicates that she would not have had any concerns as to the fact that the applicant had been married and had a child from that relationship. As the sponsor had been married twice before and had three children from her prior relationships, with her second marriage only ending in divorce in March 2010 meaning that she would have only separated from her second husband in early 2009 or late 2008, the Tribunal does not accept that she would have been jealous if the applicant had advised her that he was married but had separated from his wife in 2008, which he now claims.
Mr Chia observed that the Sponsor’s letter contained material that was consistent with the Tribunal’s consideration that the Sponsor would have not been concerned that the applicant had been married and had a child from a previous relationship due to her own personal history. Mr Chia suggested that the Tribunal’s findings at [69] could have been drawn from the 24 February 2014 letter. However, I consider it more likely that the Tribunal’s findings were based upon the information stated at [69] i.e. that the applicant’s previous marriage and child reflected the Sponsor’s own history and that this therefore would have been unlikely to have troubled her. I do not consider that [69] of the Tribunal’s decision provides a sufficient basis (either alone, or within the context of the other material before me) for inferring that the Tribunal relied upon the 24 February 2014 letter.
Mr Chia also drew attention to the fact that the NOICC appeared to have been premised on adverse information that was derived from the letter. The difficulty with this, however, is that the adverse information in the NOICC was disclosed to the applicant. He had the opportunity to comment upon it. I am unable to infer that the balance of the information contained within the letter was taken into account by the Tribunal, simply by reason of the fact that some adverse information was reflected in the NOICC.
A further argument may have been made by reference to the Tribunal’s letter to the applicant dated 18 March 2019 refusing to disclose the 24 February 2014 letter (and a number of other documents). This might indicate that some regard was had to the 24 February 2014 letter. However, the author of the letter dated 18 March 2019 was not the Tribunal member. The letter did not refer to the claims made in the Sponsor’s letter in any detail. I am therefore unable to infer that the 24 February 2014 letter was taken into account by the Tribunal in making its decision on account of the letter to the applicant refusing to disclose the 24 February 2014 letter.
Lastly, Mr Chia contended that by its nature, the 24 February 2014 letter was not a document that would have been ignored or disregarded. There is some force to this. If the adverse details contained within the letter were readily apparent, I might have been more favourably disposed to this submission.
However, this does not reflect the nature of the document. The letter is 48 pages of handwritten material containing limited punctuation. It is not immediately apparent when one begins reading it that the letter contains adverse content at all. The initial pages (and some subsequent ones) make the letter appear as if it may be a letter echoing the applicant’s claims regarding the genuineness of his relationship with the Sponsor. The Minister’s written submissions initially mistook the letter for such a document, having been mislead by those earlier pages.
In these circumstances, I consider that the most likely inference is that the Tribunal member overlooked the additional adverse material contained within the letter. This is supported by the complete lack of any reference to it within the Tribunal’s decision.
In any event, I am unable to be satisfied on the material that is before me that the failure to disclose the 24 February 2014 letter had any material effect on the decision under review. Ground 2 is therefore unable to succeed on the basis advanced by the applicant.
Ground 3
By ground 3, the applicant contended that the Tribunal breached s 359A of the Act in not putting to the applicant, pursuant to that section, certain evidence from Dr Lowie. At the hearing, Mr Chia clarified that the information he submitted ought to have been put to the applicant was contained in the following parts of the transcript that was relied upon by the applicant:
Tribunal Member: Ok, if both the mother and father return to Vietnam, do you think that they would give the same love and affection to the child that they would in Australia.
Psychologist: If they returned with [their Child], I imagine so, I can't see any reason why not, they have obviously bonded, there is a strong bond between the mother and [Child], and between the father and [Child], so I imagine that that bond would be maintained.
Mr Chia submitted that this material was a “rejection, denial or undermining” of the following claims that were made by the applicant in a statutory declaration dated 11 April 2019:
Vietnam is a third world country and [my Child] would grow up with limited opportunities in education, health care and career in Vietnam. [My Child] would not be able to have the same education as in Australia. The education in Vietnam is of a much lower standard. The health services in Vietnam are not free and you need to pay for all medical care. I anticipate that I would have difficulty finding work in Vietnam and would suffer financial hardship and I would not be able to afford the best medical care for [my Child] in Vietnam that she needs.
Mr Chia therefore submitted that the material was ‘information’ capable of enlivening s 359A of the Act, within the contemplation of SZBYR & Anor v Minister for Immigration and Citizenship [2007] HCA 26; 96 ALD 1 (SZBYR) at [17] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ.
However, I am not satisfied that the parts of the transcript relied upon by the applicant “in their terms” constituted a “rejection, denial or undermining” of the applicant’s claims that his visa ought not to be cancelled: see SZBYR at [17]. The applicant did not claim that he and the Sponsor lacked a strong bond with their daughter, such that they would not give her love and affection if they were all located in Vietnam. To the contrary, two paragraphs up from the paragraph relied upon in the 11 April 2019 statutory declaration, the applicant emphasised “We have a good relationship together. I love my daughter”. Dr Lowie’s evidence at hearing was entirely consistent with this claim.
At [41], the Tribunal stated in relation to Dr Lowy’s evidence:
Dr Lowy… said that she believed that if the applicant and [his Partner] returned to Vietnam with their daughter and gave her the love and affection she believes they give to her in Australia she will be able to develop appropriately.
However, the Tribunal’s interpretation of Dr Lowy’s evidence does not render it a “rejection, denial or undermining” of the applicant’s claims “in its terms”. The inferences drawn by the Tribunal in this regard appear to have resulted from the Tribunal considering two aspects of Dr Lowy’s evidence together, namely (i) the importance of both parents being available to a child’s development, and (ii) that she could not see why the parents would not give her the same love and affection as they would in Australia if they both relocated with her to Vietnam. This additional process of inferential reasoning creates some difficulty in finding that the evidence given by Dr Lowy was a “rejection, denial or undermining” of the applicant’s claims that his visa ought not to be cancelled “in its terms” (see Springs v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 197 at [19]-[28]).
Further, the applicant did not make any claim to the contrary of these two propositions (i.e. that both parents were important to his Child’s development and that they would love her regardless of location).
For the above reasons, I am not persuaded that Dr Lowy’s evidence was ‘information’ capable of enlivening s 359A. It follows that I am not satisfied that ground 3 is able to succeed.
CONCLUSION
For the above reasons, I conclude that the application must be dismissed with costs.
62 I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing.
Associate:
Dated: 3 August 2022
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