Doan v Minister for Immigration

[2020] FCCA 2850

FEDERAL CIRCUIT COURT OF AUSTRALIA

DOAN v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 2850

Catchwords:
MIGRATION – Administrative Appeals Tribunal – Partner (Provisional) (Class UF) visa – whether the Tribunal misunderstood and misconstrued the evidence on file as well as oral evidence and further correspondence in relation to genuine aspects of the relationship – whether the Tribunal relied on some minor inconsistencies and failed to consider the applicant and spouse as credible witnesses – whether the Tribunal’s decision was logical and reasonable – legal unreasonableness – whether jurisdictional error is made out – no jurisdictional error is made out – the application is dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5F, 359A

Migration Regulations 1994 (Cth), r.1.15(A)(3)

Cases cited:

Abebe v Commonwealth of Australia (1999) 197 CLR 510

ARG 15 v Minister for Immigration and Border Protection [2016] FCAFC 174

Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86

FCR 547

Minister for Immigration and Citizenship v Li (2013) 297 ALR 225

Randhawa v Minister for Immigration, Local Government and Ethnic Affairs

(1994) 124 ALR 265

Re Minister for Immigration and Multicultural Affairs: ex parte

Durairajasingham (2000) 168 ALR 407

Applicant: VAN GIOI DOAN

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1617 of 2019

Judgment of: Judge Humphreys

Hearing date: 6 October 2020

Date of Last Submission: 6 October 2020

Delivered at: Parramatta

Delivered on: 23 October 2020

REPRESENTATION

Applicant: In person

Solicitors for the Respondents: Ms Evans, Sparke Helmore

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

SYG 1617 of 2019

VAN GIOI DOAN

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction.

1. The applicant is a citizen of Vietnam. On 5 July 2017, Ms Thi Kim Oanh the visa applicant, applied for a Partner (Provisional) (Class UF) visa based on her relationship with her sponsor and the applicant in this matter, Mr Van Gioi Doan. This is the applicant’s fourth Partner visa application, having made unsuccessful applications in July 2008, April 2009 and June 2012.

2. On 3 August 2018, a delegate of the Minister for Immigration (“the delegate”), refused to grant the visa on the basis that the visa applicant was not in a genuine and continuing relationship with her sponsor and therefore did not meet the definition of a spouse under s 5F of the Migration Act 1958 (Cth) (“the Act”).

3. The applicant, Mr Doan, sought a merits review in the Administrative Appeals Tribunal (“the Tribunal”). In a decision dated 3 June 2016, the Tribunal affirmed the delegate’s decision not to grant the visa applicant a Partner (Provisional) (Class UF) visa.

4. The applicant now seeks judicial review of the Tribunal’s decision.

The Administrative Appeals Tribunal’s Decision

1. The Tribunal’s decision runs to some 27 typed pages and is exceedingly detailed in terms of the evidence of both the applicant, and the visa applicant. The Tribunal’s decision sets out in great detail from paragraph 65 onwards, particulars of information put to the applicant pursuant to s 359A of the Act. The Tribunal’s decision then goes on to set out the responses received.

2. From paragraph 68 onwards of its decision, the Tribunal undertakes a detailed consideration of the evidence provided by both the applicant, and the visa applicant, including an assessment of their credibility. This includes inconsistent evidence in the inception and development of the parties’ relationship, at paragraphs 73 and 79, information included on the Visitor visa application lodged by the visa applicant in 2005 and 2006 at paragraphs 80 and 81, evidence that the visa applicant had breached a no work condition at times when she had previously been in Australia at paragraph 82, inconsistent evidence over ownership of property in Vietnam at paragraphs 83 to 91, and inconsistent information provided by the review applicant’s mother at paragraph 92 of the Tribunal’s decision.

3. The Tribunal noted at paragraph 93 of its decision that the extent of the inconsistencies and contradictions that was evident in the information provided by the parties in support of their claims, was of great concern. Much of the information was inconsistent with information available from other sources or, inconsistent and contradictory to information provided elsewhere by the visa applicant or the review applicant some years prior to the current visa application. The Tribunal was not satisfied that that claims of memory fading over time and nervousness were sufficient to overcome the concerns detailed in the Tribunal’s decision, which found that the parties were not reliable witnesses.

4. From paragraph 94 onwards of its decision the Tribunal proceeds to assess the evidence before it, in terms of all the circumstances of the relationship and a specific matters set out in r 1.15(A)(3) of the Migration Regulations 1994 (Cth) (“the Regulations”). The Tribunal concluded that the parties were married to each other under a marriage that is valid for the purposes of the Act. The Tribunal was not satisfied on the evidence, that the parties own any property together. The review applicant said that he and the visa applicant had no shared liabilities. The Tribunal accepted that the review applicant had remitted funds to the visa applicant in Vietnam, however, there was no credible evidence and how the funds remitted were used. The Tribunal was not satisfied on the available evidence that the parties had pooled their funds towards major financial commitments or meeting costs associated with establishing or running the visa applicant’s current business interests.

5. The Tribunal was not satisfied that the review applicant and the visa applicant had any legal obligations with respect to each other or other people. The Tribunal accepted that there was evidence of financial support between the parties over time, which included funds remitted in 2016, 2017 and 2018. The Tribunal placed some weight on this material, but the weight was limited by the lack of specific evidence as to where the funds were remitted and what use was made of the funds. At paragraph 108 of its decision, in considering the overall financial aspects of the parties’ relationship, the Tribunal was not satisfied, when it considered in conjunction with concern about the reliability of their evidence, that they were in a genuine spousal relationship for the purpose of the Act in July 2017 or at the time of the decision of the Tribunal.

6. In terms of the nature of the household, the Tribunal noted that it was difficult to assess the criteria given that the applicant lives in Australia and the visa applicant lives in Vietnam. While the applicant and the visa applicant each have children from previous relationships, they have no children together and there was no claim that they have any ongoing responsibility for the care and support of these children.

7. The Tribunal considered the applicant’s travel records to Vietnam and accepted that the applicant and the visa applicant may have stayed in the same location during periods when the applicant was in Vietnam. The Tribunal was not satisfied that this involved the parties establishing a household in which they shared responsibility for household work or costs associated with the household.

8. Accordingly, the Tribunal was not satisfied that the household arrangements were indicative of a couple in a genuine spousal relationship.

9. In terms of the social aspects of the relationship, the Tribunal accepted that there are photographs that show the parties together in Vietnam in a variety of situations and gave this evidence some weight. The Tribunal considered witness support declarations that the parties were in a genuine relationship, but was not satisfied that weight could be given to the declaration of one witness and some weight could be given to another.  In terms of planning and undertaking joint social activities, the Tribunal was not convinced that the parties spent the amount of time with each other that they had claimed during the applicant’s trips to Vietnam. Overall, the Tribunal was not satisfied that the social aspects of the parties’ relationship supported the contention that they were in a genuine and continuing spousal relationship.

10. In terms of the nature of their commitment to each other, the Tribunal was not satisfied that it could place weight on the claims that the applicant and the visa applicant have been together for between 11 and 13 years. The Tribunal was not satisfied, that the applicant and the visa applicant had cohabited together since meeting each other in 2005. The Tribunal had concerns that there had been no discussion between the parties about what might happen to them if the current application was unsuccessful. The Tribunal acknowledged the amount of evidence provided, in support of the parties’ claim that they are in a long-term emotionally supportive relationship. The Tribunal did not place a considerable amount of weight on this evidence, as it was not convinced that this evidence outweighed the concerns that the Tribunal had about the unreliability of the parties’ claims of the nature of their relationship.

11. At paragraphs 135 – 243 of its decision, the Tribunal concluded that it was not satisfied that the parties’ were credible witnesses when it comes to all of their evidence. The Tribunal was not convinced that the parties established joint household during all of the applicant’s visits to Vietnam. After reviewing all the evidence, the Tribunal was not satisfied that at the time the visa application was lodged or at the time of the decision of the Tribunal, that the parties had a mutual commitment to a shared life as husband-and-wife to the exclusion of all others and that the relationship was genuine and continuing. The Tribunal therefore found that the visa applicant did not meet the definition of “spouse” in

    
    

    s 5F(2)(b)(d) of the Act.

Grounds of Judicial Review

1. The grounds of judicial review contained within an application filed on 1 July 2019 are as follows:

   Ground One:

   The Administrative Appeals Tribunal misunderstood and misconstrued the evidence on file as well as oral evidence and further correspondence submitted in relation to the genuine aspects of the relationship, the nature of the household and the nature of the commitment to each other.

   Ground Two:

   The Tribunal relied on some minor inconsistencies and failed to consider that my wife and I are credible witnesses and committed and our long term relationship cannot be denied and that such relationship started since we were married in May 2008 and the Tribunal failed to consider that our evidence is reliable and substantial and whatever we provided was the truth.

   Ground Three:

   The Tribunal's decision is not logical and not reasonable and was made contrary to the regulations and the procedures of partner requirements.

The Applicant’s Submissions

1. Due to Covid19 health restrictions, the hearing was to be conducted via telephone, however the applicant appeared before the Court in person. The applicant was unrepresented. Despite Court orders, no written submissions or other material were provided to the Court in support of the applicant’s case, until the morning of the hearing when the Court received a four page written submission from the applicant.

2. The legal representative for the first respondent was provided with a copy of that submission and consented to the matter proceeding notwithstanding its late provision. The submission took issue with the factual findings of the Tribunal. It also noted that some material provided to the Tribunal was missing from the Court Book. This was confirmed by the legal representative for the first respondent. The Court was of the view that the missing material was not relevant in relation to the issue of jurisdiction error on the part of the Tribunal, given the comprehensive manner in which it dealt with the evidence before it, in its written decision.

3. Prior to the hearing commencing, the Court ensured that the applicant was in possession of a copy of the Court Book and that the first respondent’s written submissions had been interpreted to him. The applicant was also provided with a pen and paper to make any notes he wished to during the course of the hearing.

4. At the commencement of the hearing, the Court explained to the applicant that it was not in a position to undertake merits review of the Tribunal’s decision, and that the Court was limited to judicial review. The Court could not accept any new evidence and was confined to reviewing the decision of the Tribunal for legal error. Only if there was legal error, could the Court quash the Tribunal’s decision and send it back for reconsideration.

5. After carefully explaining the procedures to be followed in the hearing, the applicant was invited to make any oral submissions that he wished to. The applicant told the Court that the evidence that had been provided to the Tribunal supported the claim that he and the visa applicant have a true relationship together. The applicant said that when he goes back to Vietnam, he always stays with his wife and they share things together. The applicant submitted that he sends money back to his wife and that when they lived together, his neighbours knew that they were a couple. The applicant invited the Court to send people to Vietnam to investigate this issue. It was explained to the applicant that this was not a function that the Court could undertake.

6. The applicant stated that he talks to his wife every day and asked the Court to let his wife come to Australia to live with him as he was very lonely without her. The applicant submitted that due to Vietnamese law, as a non-resident he was unable to have title in any real property. The applicant asserted however, that he had paid a considerable amount of money that he borrowed from his mother to enable his wife to buy the property.

7. The applicant’s written submissions asserted that the Tribunal had misunderstood the evidence that had been provided, and took issue with the fact that, notwithstanding all of the evidence provided, the Tribunal found against the applicant. The applicant submitted that the Tribunal failed to discharge its jurisdiction by giving proper genuine consideration of the evidence, and that the decision was legally unreasonable as it ignored cooperative material and failed to consider it in an intellectually active manner.

8. At the conclusion of the first respondent’s oral submissions, the applicant was again invited to make any submissions in response. The applicant stated that he had nothing further to add.

The First Respondent’s Submissions

1. Ground one asserts that the Tribunal misunderstood or misconstrued the evidence. The legal representative for the first respondent submits that without particulars, it is unclear what evidence the applicant says was either misunderstood or misconstrued. The legal representative for the first respondent submitted that at its highest, this ground invites the Court to engage in impermissible merits review.

2. The Tribunal plainly considered the evidence before it, in relation to the genuineness of the relationship and of the nature of the household. The Tribunal actively sought clarification from the parties in relation to their evidence and the inconsistencies, providing them with an opportunity to address its concerns, including by way of an s 359A of the Act invitation. The parties were given adequate opportunity to provide any clarification and otherwise present their case. The parties were unable to satisfy the Tribunal that they were in a genuine relationship and this does not lead to a conclusion that the Tribunal misunderstood or misconstrued the evidence provided.

3. Ground two complains that the Tribunal erred in relying on “minor inconsistencies” in the evidence provided, and failed to find that the applicant and the visa applicant are credible witnesses and that the applicant’s evidence was reliable, substantial and the truth. The legal representative for the first respondent submitted that the inconsistencies identified relied upon by the Tribunal in its adverse findings, were not minor. Rather, at paragraph 70 of its decision, the Tribunal found inconsistencies and discrepancies in the information which caused the Tribunal to have “serious concerns” as to the reliability the information provided by the parties. It is clearly a matter for the Tribunal to assess the evidence before it and determine what information was credible: (see Re Minister for Immigration and Multicultural Affairs: ex parte Durairajasingham (2000) 168 ALR 407 (“Durairajasingham”)) at [67]. The Tribunal was not required to uncritically accept the evidence of the parties: (see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 124 ALR 265 (“Randhawa”)) at [278]. It was submitted by the legal representative for the first respondent, that the applicant’s assertion that the Tribunal should have reached a different conclusion on the material before it, again invites the Court to undertake merits review.

4. Ground three asserts that the Tribunal’s decision was unreasonable and illogical. The Tribunal’s decision record does not reveal that it lacked an evidentiary basis for its findings or that no other decision-maker could have come to the same conclusions on the evidence: (see Minister for Immigration and Citizenship v Li (2013) 297 ALR 225 (“Li “)) at [28] and [76]. The Tribunal’s findings that the inconsistencies which arose from the evidence would be logically probative of the Tribunal’s conclusion about the parties lack of credibility, was open to the Tribunal and entitled the Tribunal to give little or no weight to the evidence before it.

5. In oral submissions, the legal representative for the first respondent took the Court through the evidence and the applicant’s oral submissions and submitted that at its highest, the submissions simply took issue with the outcome and did not point to any jurisdictional error on the part of the Tribunal. Disagreement with the outcome, even emphatic disagreement does not amount to jurisdictional error.

Consideration.

1. The Court accepts the submission of the legal representative for the first respondent that the Tribunal was not required to accept uncritically any and all claims made by the applicant: (see Randhawa). The Tribunal gave careful consideration to the evidence and for the reasons it gave, came to a conclusion that the applicant and the visa applicant’s evidence and the material they relied upon, did not outweigh the concerns it had with inconsistencies within the evidence. As a result, the Tribunal had significant concerns as to the credibility of the applicant and the visa applicant. A credit finding is sound, if it was:

   “…open to it on the material, was based on rational grounds and was arrived at after consideration of matters that were logically probative of the issue of credibility”: (see Kopalapilli v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547).

2. Whilst it has been suggested that credibility findings are a matter of par excellence for the Tribunal, (see Durairajasingham at [67] per McHugh J), this is perhaps better explained, by the fact that the Tribunal has the opportunity of hearing evidence from the various witnesses and asking questions of them. The Court does not have this opportunity.

3. A Court undertaking judicial review should be a careful in consideration of overturning credibility findings unless there is clear evidence that the findings are tainted by a failure to afford procedural fairness or are reached without a logical probative basis for the finding or legal unreasonableness (see ARG 15 v Minister for Immigration and Border Protection [2016] FCAFC 174) at [83].

1. In terms of ground one, the Court is not satisfied that the Tribunal either misunderstood or misconstrued the evidence that was before it. The Court is satisfied that Tribunal went into great detail to both consider the totality of the evidence that was before it and what conclusions could safely be drawn from that evidence. The Court is satisfied that all procedural fairness requirements were met in that the concerns of the Tribunal were put in significant detail to the applicant to allow him to respond to those concerns. The fact that the applicant was unable to satisfy the Tribunal in relation to its concerns, does not mean that the Tribunal committed any jurisdictional error. The Court agrees with the legal representative for the first respondent that ground one simply invites the Court to undertake impermissible merits review: (see Abebe v Commonwealth of Australia (1999) 197 CLR 510) at [53]-[54]. Ground one reveals no jurisdictional error.

2. In terms of ground two, the Court is satisfied that the Tribunal was entitled to come to the conclusions it did based upon the totality of the evidence that was before it. The Court is of the view that the adverse credit findings were open to the Tribunal based on a careful consideration of the matters that were logically probative of them. The Court is satisfied that the Tribunal had reasonable and rational grounds to cause it to have the serious concerns that it did as to the reliability of the evidence that was before it. Ground two reveals no jurisdictional error.

3. Ground three asserts legal unreasonableness in relation to the decision of the Tribunal. The test for unreasonableness is “stringent” and will only arise in rare cases. An assertion of unreasonableness is not a means for challenging a decision on the basis that the applicant disagrees with the consideration of the matters or the evaluative judgements made by the decision-maker: (see Li) at [30] and [113].

4. The Court is satisfied that there is nothing unreasonable, illogical or irrational in either the consideration of the Tribunal of the evidence that was before it, or the conclusion it came to, based on that evidence. The Tribunal member went into considerable detail to outline the evidence available to him and his reasons for arriving at the decision to affirm the delegate’s decision. This evaluation considered all the relevant requirements under the regulations in terms of whether or not the parties were in a genuine relationship to the exclusion of all others for the purposes of the Act.

5. The Court is not satisfied that the evaluation by the Tribunal member reveals any irrationality, illogicality or legal unreasonableness. The Court is also not satisfied that the Tribunal did not engage with the evidence in an intellectually active way. In fact in the Court’s view, the Tribunal went into significant detail and set out the evidence that was before it and gave consideration as to what conclusions could be safely drawn.  This is a decision that reveals a very active intellectual engagement with the material and the inferences that could be drawn from it. The fact that the Tribunal gave only limited weight to some aspects of the evidence was reasonable in all the circumstances. Accordingly, ground three reveals no jurisdictional error.

6. Given that the applicant was not legally represented, the Court carefully perused the decision of the Tribunal but was not satisfied that there was any jurisdictional error that was not articulated by the applicant. The Court is satisfied that all procedural fairness requirements required of the Tribunal by the Act were complied with, including giving detailed concerns to the applicant in writing and allowing him the opportunity to respond.

Conclusion

1. As there is no jurisdictional error apparent in the Tribunal’s decision, the application is dismissed.

2. As a result, costs flow with the decision to dismiss the application.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Humphreys

Deputy Associate:

Date: 23 October 2020