Do v Minister for Immigration
[2019] FCCA 787
•29 March 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DO & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 787 |
| Catchwords: MIGRATION – Application seeking review of the decision of the Administrative Appeals Tribunal (AAT) – whether the AAT erred in failing to consider certain evidence in determining whether the applicant’s marriage to the visa sponsor met the definition of “spouse” pursuant to s.5F of the Migration Act 1958 (Cth) and cl.820.211(2) of the Migration Regulations 1994 (Cth) – no jurisdictional error revealed – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5F, 65, 348, 476 Migration Regulations 1994 (Cth), Sch 2, cls.820.211(2), 820.221(3) |
| Cases cited: Sellamuthu v Minister for Immigration & Multicultural Affairs [1999] FCA 247; (1999) 90 FCR 287; (1999) 58 ALD 30 |
| First Applicant: | TRONG TU DO |
| Second Applicant: | VIET CUONG DO |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1498 of 2017 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 14 March 2019 |
| Date of Last Submission: | 14 March 2019 |
| Delivered at: | Sydney |
| Delivered on: | 29 March 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr L Karp |
| Solicitors for the Applicant: | My T Nguyen Solicitors |
| Counsel for the Respondents: | Mr N Swan |
| Solicitors for the Respondents: | Mills Oakley Lawyers |
ORDERS
The application made on 12 May 2017 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $5400.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1498 of 2017
| TRONG TU DO |
First Applicant
VIET CUONG DO
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 12 May 2017 seeking review of the decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 11 April 2017 which affirmed the decision of the Minister’s delegate to refuse the grant of a Partner (Temporary) (Class UK) visa (“the Partner visa”) to Mr Trong Tu Do.
The evidence before the Court is contained in a bundle of relevant documents filed by the Minister and tendered by the applicant (Court Book – “CB” – “AE 1”).
Background
Both parties’ written submissions set out the background of this matter, its history, and Mr Do’s claims. Given the focus of the applicant’s sole ground of the application, both submissions provide an adequate explanation of the background and history.
Mr Do’s submissions were as follows:
“1. The applicant, Mr Do, is a Vietnamese citizen who first arrived in Australia on 27 November 2013 on a Business (subclass UC-456) visa (CB 137). He left about two weeks later but arrived again on the same subclass of visa on 18 October 2014 (CB 137).
2. On 6 November 2014 Mr Do married Ms Thoai Phuong Trinh Tran (CB 63). Ms Tran was and presumably remains, an Australian citizen (CB 57). Mr Do's application for a Partner visa, sponsored by Ms Tran, was lodged on 6/ November 2014 (CB 1ff). That application included Mr Do's son.
3. The marriage did not go smoothly. On 27 January 2016 the Minister's Department sent Ms Tran a letter confirming her withdrawal of her sponsorship of Mr Do (CB 91-2). On the same day a letter was sent to Mr Do advising him of information in the Minister's possession to the effect that the marital relationship had ended and offering an opportunity to respond (CB 94-96).
4. Mr Do responded via his solicitors and migration agents on 8 February 2016 to the effect that the marriage had ended due to family violence (CB 97). That was supported by Mr Do's Statutory Declaration in which he alleged that the discord was caused by Ms Tran's drinking and gambling and her demand for Mr Do to finance her drinking and gambling. This he said culminated in physical violence on New Years Eve, on 231 December 2015 when Ms Tran attacked him and he left the marital home (CB 98-100).
5. The Department issued a follow up letter inviting the submission of evidence to establish whether or not that Mr Do was Ms Tran's spouse or de facto partner of your sponsor prior to the cessation of the relationship (CB 108-111). The evidence provided included a psychological report which described the course of the relationship in some detail (CB 115-121). The psychologist, Mr Nguyen Van Son administered tests, found that Mr Do fell within the scope of Family and Domestic Violence, that his depression and anxiety scales were in the "severe range" and that he was coping poorly with PTSD (CB 120). Mr Nguyen stated that he had no reason to doubt Mr Do's account (CB 121). A report of a social worker at CB 122-128, was to the same effect.
6. The application was refused by decision dated 23 May 2016 (CB 131-141). The delegate in making his decision considered matters pertinent to Migration Regulation 1.15A.
7. The application for review was made on 2 June 2016 (CB 161-172).
8. On 10 June 2016 the Minister's Department sent a certificate, purportedly pursuant to s.376 of the Migration Act, to the Tribunal. That certificate apparently pertained to information from Ms Tran about Mr Do (CB 176). The Tribunal disclosed to Mr Do pertinent information in the information the subject of the s.376 certificate (CB 207 [30]-[33]), and nothing turns on this.”
[Errors in the original.]
The Minister’s relevant submissions were as follows:
“2. The First Applicant (the Applicant) is a citizen of Vietnam, born in August 1970 (CB 1). On 6 November 2014, the Applicant applied for the Visa (CB 1-34), on the basis of his marriage to Ms Thoai Phuong Trinh Tran (the Sponsor) (CB 17-18; 25; 35-44). The Applicant and Sponsor had married on 4 November 2014 (CB 18).
3. On 27 January 2016, the (then) Department of Immigration and Border Protection wrote to the Sponsor, noting the withdrawal of her sponsorship of the Applicant’s visa application (CB 90-92). On the same day, the Department also wrote to the Applicant and invited him to comment on information that the Department had received, to the effect that his spousal relationship with the Sponsor had ceased (CB 94-96). On 8 February 2016, the Applicant provided to the Department a Statutory Declaration and a completed Form 1410, in which he claimed to have been the subject of family violence by the Sponsor (CB 97-106).
4. On 29 February 2016, the Department sought comment from the Applicant as to whether he and the Sponsor were “spouses” prior to the alleged cessation of their relationship (CB 108-111). On 30 March 2016, the Applicant, by his migration agent, provided bank statements, a psychologist report (of Mr Nguyen Van Son), and a social worker’s report (of Ms Kim Dang) to the Department (CB 112-130).
5. On 23 May 2016, a delegate of the Minister refused to grant the Visa (CB 132-160). The delegate was not satisfied that the Applicant and the Sponsor were, at the time of the visa application, spouses, as defined in s 5F of the Act. Accordingly, the delegate was not satisfied that the Applicant met cl 820.211(2) of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).
6. On 2 June 2016, the Applicants sought review of the delegate’s decision by the Tribunal (CB 162-172). On 6 February 2017, the Tribunal invited the Applicant to attend a hearing, to be held on 15 March 2017, to give evidence and present arguments in relation to the issues arising on the review (CB 178-179). That hearing took place as scheduled, and the Applicant was represented by a migration agent (CB 190). On 11 April 2017, the Tribunal affirmed the delegate’s decision (CB 202-217).”
The sole ground of the application is in the following terms:
“1. The Tribunal erred in failing to consider psychological evidence put forward on behalf of the Applicant Trong Tu DO in its assessment of whether his marriage to his former wife met the definition of “spouse” in s.5F of the Migration Act.
Particulars
(a) Report of psychologist Nguyen Van Son dated 10 February 2016
(b) Report of social worker Kim Dang dated 6 February 2016.”
The central issue for the Tribunal was whether Mr Do satisfied cl.820.211(2) of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”). The relevant statutory and regulatory requirements required Mr Do to meet this criterion before the visa could be granted to him (see s.65 of the Act).
The relevant part of this clause was, at the relevant time, in the following terms:
820.211
…
(2) An applicant meets the requirements of this subclause if:
(a) the applicant is the spouse or de facto partner of a person who:
(i) is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and
(ii) is not prohibited by subclause (2B) from being a sponsoring partner;
The question for the Tribunal was whether Mr Do and Ms Tran (“the visa sponsor”) were at the time of the application for the visa “spouses” as that term is defined in s.5F of the Act. In short, whether there was a “genuine” marriage.
Mr Do appeared at a hearing before the Tribunal on 15 March 2017 (CB 190). He was accompanied by his representative. Also present was his son, who was also a visa applicant before the Tribunal (as Mr Do’s dependant).
There is no transcript of the Tribunal hearing in evidence before the Court. The only evidence of what occurred are the Tribunal’s references in its decision record. (See [14] – [26] at CB 204 – CB 207).
The Tribunal found at [34] (CB 208):
“34. The oral evidence given by the applicant during the hearing was at times unconvincing and implausible. The tribunal was not satisfied it could rely on Mr Do’s oral evidence where it was not clearly corroborated by credible documentary evidence.”
Given what is asserted in the sole ground of the application to the Court, the following part of the Tribunal’s decision is relevant ([35] – [37] at CB 208 – CB 209):
“35. The tribunal has reviewed the reports from Mr Van Son Nguyen, registered psychologist, dated 10 February 2016 and Ms Kim Dang, social worker, dated 6 February 2016. The tribunal notes both of these reports and the assessments associated with preparing the reports were prepared in 2016, following the claimed cessation of Mr Do's relationship with Ms Tran. The tribunal has formed the view the information in the reports are not based on the respective health professional direct observations of the parties, either jointly or singularly, during the period of their claimed spousal relationship. The tribunal does not doubt the respective health professional can provide clinical views and assessment of Mr Do's psychological state and his emotional and physical wellbeing and factors that may have contributed to these states of mind and body. However, the tribunal is not satisfied the health professionals can attest to the genuine nature of the parties' spousal relationship on the basis of any direct observation of, or assessment of that relationship.
36. The tribunal considered whether there is any indication in the reports of Mr Nguyen or Ms Dang which would indicate the applicant was suffering from a mental health condition, at the time of the hearing, which may have impacted his competency to appear, or affect his capacity to provide clear oral evidence during the hearing. Mr Nguyen reports the applicant was, in February 2016, 'at risk of total psychological collapse' as a consequence of the symptoms of depression, anxiety and stress he was experiencing due to his exposure to domestic violence. Mr Nguyen reported the applicant would benefit from continuing with professional and culturally appropriate psychological treatment and expressed confidence the applicant could maintain his employment and positive contribution to Australian society. The report of Ms Dang provides her opinion the applicant was a victim of relevant violence, but provides no clear diagnostic or prognostic information in relation to his suffering from a mental health condition. Neither of the health professional reports suggested the applicant would not have a capacity to participate in a hearing before the tribunal.
37. The tribunal received no submissions to suggest the applicant was experiencing cognitive or related mental health difficulties impacting on his capacity to participate in the hearing and there was no indication, from his presentation during the hearing to indicate he did not the competency to appear before, or provide oral evidence to the tribunal.”
[Errors in the original.]
The Tribunal’s consideration of whether Mr Do and the visa sponsor were ever in a “spouse” relationship with reference to s.5F of the Act, is set out at [52] – [69] of the Tribunal’s decision.
The Tribunal found that they were validly married for the purposes of the Act as required by s.5F(2)(a) (at [54] – [55]).
However, the Tribunal was not satisfied that Mr Do’s evidence in relation to the financial aspects of the relationship supported the claim of a spousal relationship (at [56]). Nor that the parties shared a household at any time. In fact, the Tribunal found that the evidence in relation to this was not consistent with Mr Do and the visa sponsor being in a genuine spousal relationship (at [59] – [60]).
The Tribunal was also not satisfied that the various documentary and photographic evidence revealed that Mr Do and the visa sponsor presented themselves to others as being in a genuine spousal relationship (at [61] – [64]).
The Tribunal noted the short period between the claimed commencement of the relationship (6 November 2014) and its ending (27 November 2014). The Tribunal found that they had not lived together between April and December 2015 as had otherwise been claimed (at [66] – [67]).
In all, the Tribunal was not satisfied that Mr Do and the visa sponsor were ever at any time in a genuine relationship with mutual commitment to a shared life with each other. The Tribunal affirmed the delegate’s decision (at [68] – [69]).
The sole ground of the application asserts that the Tribunal failed to consider the psychological evidence put forward by Mr Do in its assessment of whether his marriage to the visa sponsor met the definition of spouse as set out in the Act.
The particulars identify two relevant documents. One, the report of a psychologist (Mr Nguyen Van Son) dated 10 February 2016 (CB 115 – CB 121). Two, the report of a social worker (Ms Kim Dang) dated 6 February 2016 (CB 122 – CB 130).
Mr Do’s argument before the Court was as follows. The Tribunal “rejected” his evidence on the basis that he was an unpersuasive witness, he lacked documentary corroboration, and because of the visa sponsor’s information about her address at relevant times.
In relation to the two reports, the Tribunal accepted the expertise of the two authors of these reports. But it rejected their corroborative evidence of Mr Do’s claims about the relationship with the visa sponsor, on the basis that neither of the two had had a chance to observe the relationship at the time it existed.
Mr Do argues that the Tribunal was in no better position than the authors of the reports (whose expertise the Tribunal otherwise accepted) in assessing the genuineness of the relationship, given that it too had not had a chance to observe Mr Do and the visa sponsor while the relationship existed.
Mr Do’s contention is that it was not open to the Tribunal to reject the opinions expressed in these reports on the basis that these experts did not have access to the evidence that the Tribunal itself did not have.
In short, the question of whether the “marriage” existed, within the meaning of s.5F, should have been considered in evaluating all of the evidence available. That is, the expert’s opinions, and on the basis on which those opinions were formed.
In this light the psychologist, who was said to have taken a “full history”, and, based on his expertise, found that Mr Do was coping poorly with post-traumatic stress disorder and was severely depressed and anxious.
His opinion, based on information presented to him, and what was his own assessment, led to the conclusion that Mr Do came to Australia with the intention of forming a genuine commitment to the marriage.
The social worker also took a “full history” and reached a similar conclusion.
The complaint is that the Tribunal did not consider the evidence through which these experts, relying on their expertise, reached the conclusion that Mr Do was genuine in his commitment to the marriage.
Mr Do submits that the Act (s.348) requires consideration of all relevant documentation in evidence (see Sellamuthu v Minister for Immigration & Multicultural Affairs (1999) 90 FCR 287 at [19]; Minister for Immigration v SZRKT (2012) 212 FCR 99 at [112]; Minister for Immigration v MZYTS (2013) 230 FCR 431 at [38])). Therefore, the Tribunal fell into jurisdictional error by its failure to consider the evidence put forward in the two reports.
I did not understand Mr Do to contend, or argue, that the Tribunal did not consider, in the sense of referring to, the reports as such. Rather, the complaint is that the Tribunal failed to properly consider the evidence put forward in the reports in the requisite sense.
In light of this distinction, before the Court Mr Do’s counsel referred to Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107 (“Carrascalao”), for the proposition that (with reference to Tickner v Chapman (1995) 57 FCR 451) that, relevant to this case, the Tribunal must “engage in an active intellectual process in determining” whether the visa should be granted. (See at [35], and see at [36] – [46] for the meaning of the word “consider” in this context).
Mr Do also referred to NAJT v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 134; (2005) 147 FCR 51 (“NAJT”) for the proposition that the Tribunal was required to “have regard” (NAJT at [205]) to the subject matter of the reports. Further, that the failure to “have regard” to the potential importance of that subject matter to the outcome of the visa application reveal jurisdictional error (NAJT at [212]).
The submission was as follows. In the current case, the Tribunal did make reference to the reports. However, it did not consider, or have regard to, in the sense of actively engaging at an intellectual level, the subject matter, and conclusions of the reports. It simply proceeded on the basis that the reports were, in effect, of no assistance because the reports and the assessments to which they referred in preparing the reports, were made after the cessation of Mr Do’s claimed relationship with the visa sponsor.
The relevance of the assessments, and conclusions in both reports, to the Tribunal’s decision were said to be that this material went to the question of the genuineness of Mr Do’s commitment to the marital relationship. A factor on which the Tribunal otherwise found adversely to Mr Do (see [65] – [67]).
I’m not persuaded by Mr Do’s argument that the Tribunal’s decision is affected by jurisdictional error in the way asserted in the ground of the application to the Court, and as explained to the Court.
First, Mr Do’s ground, and in particular, as it was explained before the Court, requires attention to be given to the actual content of the reports themselves and the reason for their preparation, and then submission to the Tribunal.
This is in particular for two reasons. One, Mr Do’s attack is not based on the assertion that the Tribunal had no regard whatsoever to the reports as such. Rather, the argument is that it did not engage in the requisite sense with the subject matter of the reports. This therefore raises the question of what relevantly did the Tribunal not actively and intellectually engage with.
Two, the object or purpose of the reports is important given Mr Do’s argument now that, in essence, the subject matter of the reports could have materially affected the outcome of the application for the visa.
The report prepared by the registered psychologist is reproduced at CB 115 – CB 121. The report by the social worker is at CB 122 – CB 130.
It is to be noted, however, that at the time of making his application for the Partner visa (6 November 2014), made with the assistance of a registered migration agent, Mr Do and the visa sponsor were said to be living together (see CB 27 and CB 40). The visa sponsor provided a sponsorship for the grant of the visa.
However, the visa sponsor withdrew that sponsorship. Mr Do was notified of this by being copied into a letter from the Minister’s Department, dated 27 January 2016, sent to the visa sponsor (CB 91 – CB 92). He was also notified by a separate letter in which the Minister’s Department said it had information that the spousal relationship, which was the basis for the visa application, had ceased (at CB 94). Amongst other things the first letter, relevantly, notified Mr Do that that did not mean that his application for the visa would be refused. The Minister’s Department’s letter referred him, amongst other things, to the possibility that the visa may still be granted if any one of a number of circumstances existed.
One of these was that if the applicant for the visa (in this case Mr Do) had suffered from family violence from the visa sponsor (CB 91.10). Mr Do was told that one of the ways he could establish that he had been the subject of such violence was to provide evidence from “defined “competent professionals”” (CB 92.3).
On 8 February 2016, through his registered migration agent, Mr Do subsequently notified the Minister’s Department that the relationship had “ended due to domestic [family] violence” (CB 97).
It was in this circumstance that the two reports were ultimately provided to the Minister’s Department (CB 97.5). Further, it is made clear in both reports that that was the purpose of preparing and drafting the reports:
1)the psychologist report (at CB 115.4):
“Mr DO…was referred to me for an assessment on the psychological effects of a domestic violence situation he claimed to have suffered during his short marriage with [the visa sponsor]”.
2)the social worker’s report (at CB 122 to CB 122.5):
“Mr Do…was referred to me for an assessment on his psychological circumstances arising from a serious domestic violence situation which he asserts has compelled him to separate from his legal wife [the visa sponsor]”.
The reports therefore were not directed to the question of whether a genuine relationship existed, or more particularly, the genuineness of Mr Do’s commitment to the marital relationship. Rather, they were focused, as is made clear, on the question of family violence.
Mr Do told the psychologist that he was “compelled to separate from his wife for his own safety and sanity” given that he had “experienced a number of serious incidents” of physical and emotional abuse “as a consequence of his wife’s obsessive compulsive gambling behaviour” (CB 115.5).
Similarly he told the social worker that he had suffered “physical, psychological, emotional and financial abuse” as a result of the visa sponsor’s conduct (CB 122.9).
The Tribunal’s impugned paragraph (at [35]) needs to be read in that light, and importantly, in context of the entirety of the Tribunal’s decision. At [26] (CB 206 – CB 207) the Tribunal specifically recognised the purpose of Mr Do’s submitting of these reports. A purpose which Mr Do confirmed at the hearing with the Tribunal.
In short, while the reports made references to Mr Do’s state of mind, including the “genuineness” of his commitment to the relationship, the opinion or conclusion of both reports arose from and were focused on whether family violence had occurred.
The social work report makes that particularly clear in its final paragraph (at CB 130):
“In conclusion I determine that Mr. DO Trong Tu is a victim of relevant domestic violence as the actual conduct of his estranged wife caused Tu to be to be fearful/apprehensive about his wellbeing and safety as per paragraph 1.23(2)(b) of the Migration Regulations Act 1994.”
[Errors in the original.]
The psychologist report includes a final “opinion” when read in context of the family violence matters discussed in the body of the report also makes that clear. And (CB 121.5):
“…My opinion is that Mr Do started the relationship with love and trust but, for reasons beyond his control as described above, [the family violence matters] the marriage turned out to be a negative experience”.
Second, as set out above, the attack on the Tribunal’s decision, arising from [36] of the Tribunal’s decision, was that the Tribunal failed to appropriately consider the various references and opinions in the report to the effect that Mr Do had a genuine commitment to the relationship.
This was explained before the Court as being that the Tribunal failed to consider the “evidence” put forward in the reports, in the sense that it failed to actively engage with the contents, and the conclusions, in an intellectual sense. This must be rejected.
The Tribunal did engage with the “evidence” in the reports. That is, the nature and character of that evidence. The Tribunal’s observation that the reports, which included the “evidence” set out in the reports, were undertaken after the relationship had ended. In this light, the Tribunal formed the view that the information and conclusions in the reports, which recorded and was based on what the authors of the reports had been told by Mr Do, were not based on the direct observation of the parties during the relevant period.
This was reasonably open to the Tribunal on what was before it. What the Tribunal makes of the reports in that circumstance, and the weight it assigned to the evidence before it, is for the Tribunal to assess and determine (see Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 at [33] – [34]).
It is important to note this very clear distinction in the Tribunal’s analysis. What is set out above was the Tribunal’s analysis of the evidence before it. That is, the reports and their contents. In context, it was reasonably open to the Tribunal to view and consider the reports as relevant to the question of family violence, and of no use in determining the question of the genuineness of the relationship. This was particularly so because the authors of the reports were not in a position to observe the parties at the relevant time.
Third, it is, at least, implicit in Mr Do’s argument before the Court that the Tribunal was bound to accept the evidence or information in the reports because it otherwise found that the authors of the reports could provide clinical views and assessments of Mr Do’s psychological state, and emotional and physical condition.
It is explicit in his argument that it was somehow illogical or unreasonable of the Tribunal not to have applied the “findings” and conclusions of the authors of the reports in such a way as to find that a genuine spouse relationship had existed. Although in submissions before the Court Mr Do’s counsel clarified that the ground pressed did not include any assertion of unreasonableness or illogicality.
When reduced to its essence, Mr Do’s assertion in his ground that the Tribunal failed to consider the psychological evidence is camouflage for saying that he does not agree with the Tribunal’s analysis and findings. In short, the ground seeks impermissible merits review.
The Tribunal did “consider”, that is, it did apply its mind to the contents of the reports. Its finding that, in effect, gave little weight to the reports in relation to the question of whether there had been a genuine marriage, was reasonably open and within the proper exercise of its jurisdiction.
Further, the Tribunal did properly consider the reports to assess whether there was any in the reports that could indicate that Mr Do’s mental condition was such as to have impacted on his capacity to meaningfully participate at the Tribunal hearing. The Tribunal found that neither of the reports gave any such indication. This also was reasonably open to it.
Fourth, as set out above, to make good his contention, Mr Do emphasised in his submissions that the Tribunal’s “rejection” of, or failure to properly engage with, the evidence in the reports, because the authors of the reports were not in a position to observe the parties (Mr Do and the visa sponsor) while the relationship was in existence, was made in circumstances where the Tribunal itself was in no better position than the “experts” to have observed the relationship at that time.
This argument, again, does not take into account the context in which the reports were prepared. The expertise which the two authors brought to bear in the reports was focused, properly, on the question of family violence and Mr Do’s mental condition and health as a result of this circumstance.
In contrast the Tribunal’s focus was, properly, on the question of whether there had been a genuine spousal relationship in the first place. As the Tribunal correctly identified, the question of family violence only became relevant if Mr Do met the criterion for the grant of the visa as having been the spouse of the visa sponsor ([69] – [70] at CB 213).
Fifth, before the Court, Mr Do sought to emphasise that at [35] the Tribunal accepted that the “health professional[s] can provide clinical views and assessment[s] of Mr Do’s psychological state and his emotional and physical wellbeing and factors that may have contributed to these states of mind and body.”.
Yet, he argued the Tribunal did not engage with this evidence about these very factors.
This argument ignores that the Tribunal plainly recognised that the health professionals may very well have been “experts” in matters of family violence and in assessing states of mind and physical and mental health in that context.
What Mr Do’s argument failed to consider was that they were not “experts” in the assessment of the relevant criterion for the grant of the visa. In making their assessments they may well have expressed opinions about the genuineness of the relationship and Mr Do’s mind.
But the Tribunal was entitled, in the context of considering the criteria for the grant of the visa (in the context where family violence was not, yet, a relevant consideration) that their “evidence” (their opinions and conclusions arising from what they were told) were not based on direct observation of the relationship or of Mr Do at the time of the relationship, but simply on what he told them some time after the relationship had ceased.
There can be no argument on any plain reading of the reports that the opinions (and “the evidence” as described by Mr Do before the Court) were based entirely on what Mr Do told them.
In this light, the Tribunal did consider that “evidence”, and found it lacking as to the assistance it would provide to the immediate question before it. This is the import of the last sentence of [35] of the Tribunal’s decision record: “However, the tribunal is not satisfied the health professionals can attest to the genuine nature of the parties' spousal relationship on the basis of any direct observation of, or assessment of that relationship.”. That is, as the “evidence” was relevant to the criterion set out at cl.820.211(2).
Contrary to Mr Do’s submissions the Tribunal was in a better position to determine the question posed by cl.820.211(2) than the authors of the reports. To apply the “logic” of Mr Do’s argument the Tribunal was the “expert” in that exercise. That is precisely what the Tribunal was saying in the last sentence of [35]. To put it bluntly the authors were “health professionals”, not visa criteria assessment professionals.
In Carrascalao the Full Court made clear that:
“32. The Court is mindful of the necessity to avoid straying into a review of the merits of the Minister’s decisions (see the frequently cited statements of Brennan J in Attorney-General (NSW) v Quin [1990] HCA 21; 170 CLR 1 at 35-37). The Court acknowledges that an expression such as “proper, genuine and realistic consideration” can, if taken out of context, encourage a “slide” into an impermissible merits review (see the observations of the High Court in Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; 243 CLR 164 (SZJSS) at [30] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ, who referred with apparent approval to Basten JA’s comments on this matter in Swift v SAS Trustee Corporation [2010] NSWCA 182 at [45]).”
That is what Mr Do invites the Court to do in the current case.
The Tribunal did give genuine, and in context, appropriate, consideration to the reports, the “evidence” in the reports, and the capacity of the authors, which informed the character and nature of their opinions, and the basis on which those opinions were formed.
Ultimately the Tribunal properly understood whatever the “evidence” of the health professionals, the question of whether Mr Do met the relevant criterion under consideration for the grant of the visa was for it to determine.
Conclusion
The sole ground of the application to the Court does not reveal jurisdictional error in the Tribunal’s decision. It is therefore appropriate to dismiss the application to the Court. I will make that order.
I certify that the preceding seventy-nine (79) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Associate:
Date: 29 March 2019
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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Statutory Construction
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