Doan v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 554
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Doan v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 554
File number: MLG 1176 of 2018 Judgment of: HER HONOUR JUDGE C.E. KIRTON KC Date of judgment: 29 June 2023 Catchwords: MIGRATION LAW – Application for judicial review of decision of Administrative Appeals Tribunal – refusal of Prospective Marriage (Temporary) (Class TO) visa - sponsorship limitation in reg 1.20J(1)(a) of the Migration Regulations1994 (Cth) – whether there were compelling circumstances to waive the sponsorship limitation pursuant to reg 1.20J(2) – whether Tribunal’s reasoning is illogical or irrational – whether Tribunal considered Applicant’s claim – whether Applicant received a real and meaningful hearing – whether Tribunal failed to make a critical and obvious inquiry – no jurisdictional error – application dismissed – costs ordered Legislation: Migration Act 1958 (Cth) 360, 474(2), 476(1)
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) Pt 2 Div 1, Schedule 1, Item 3
Migration Regulations 1994 (Cth) cl 300.22, regs 1.20J(1)(a) and 1.20J(2)
Cases cited: Aggarwal v Minister for Immigration and Border Protection [2015] 1312
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39
Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126
Minister for Immigration and Citizenship v Le [2007] FCA 1318; (2007) 164 FCR 151
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 (2002); 168 ALR 407
Singh v Minister for Home Affairs [2019] FCAFC 3
SUZON v Minister for Immigration and Border Protection (No 2) [2019] FCA 348
Wei v Minister for Immigration and Border Protection [2015] HCA 51
Westlake v Attorney-General of the Commonwealth [2017] FCA 1058
Division: Division 2 General Federal Law Number of paragraphs: 58 Date of last submissions: 14 December 2021 Date of hearing: 14 December 2021 Place: Melbourne (by videoconference) Counsel for the Applicant: Mr Kenneally Solicitor for the Applicant: Visatec Legal Solicitor for the First Respondent: Sparke Helmore The Second Respondent Submitting an appearance, save as to costs ORDERS
MLG 1176 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: VAN HIEU DOAN
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
HER HONOUR JUDGE C.E. KIRTON KC
DATE OF ORDER:
29 June 2023
THE COURT ORDERS THAT:
1.The Application filed on 2 May 2018 and as amended on 22 November 2021 is dismissed.
2.The Applicant pay the First Respondent’s costs fixed in the sum of $7,853.
3.The name of the First Respondent be amended to “Minister for Immigration, Citizenship and Multicultural Affairs”.
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
HER HONOUR JUDGE C.E. KIRTON KC:
INTRODUCTION
Before the Court is an application filed on 2 May 2018 (Application) and further amended on 22 November 2021 (Amended Application), brought pursuant to s 476(1) of the Migration Act 1958 (Cth) (Migration Act). The Applicant seeks judicial review of the decision of the Administrative Appeals Tribunal (Tribunal), dated 10 April 2018 (Tribunal’s Decision).
The Tribunal affirmed the earlier decision of a delegate (Delegate) of the First Respondent (Minister) not to grant Ms Thi Hong Nhung (Visa Applicant) a Prospective Marriage (Temporary) (Class TO) visa (Visa).
The Applicant Mr Van Hieu Doan (Applicant) has five (5) grounds of review in the Amended Application, which the Court will consider in detail below. The Applicant must show jurisdictional error in the Tribunal’s Decision in order to obtain relief from this Court.
This matter was heard on 14 December 2021 and proceeded by way of videoconference on Microsoft Teams as a result of the health protocols adopted by the Federal Circuit and Family Court of Australia at the time in Victoria, due to the ongoing COVID-19 pandemic. The Court is satisfied that the hearing provided a meaningful opportunity for the Applicant to engage with the Court.
For the reasons set out below, I find there is no jurisdictional error in the Tribunal’s Decision. It follows that the Application as amended by the Amended Application must be dismissed.
ISSUE IN DISPUTE
The determinative issue in dispute in this proceeding was whether there were compelling circumstances pursuant to reg 120J(2) of the Migration Regulations1994 (Cth) (Regulations) to justify approving the Visa Applicant for the Visa, in circumstances where the Applicant has previously sponsored two other women for Prospective Marriage (Temporary)(Class TO) visas.
BACKGROUND TO THE PROCEEDING
The Court has before it a Court Book numbering 491 paginated pages. The Court has reviewed the material in the Court Book in detail. The Court notes that the Minister’s Written Submissions, filed on 8 December 2021 (Minister’s Submissions) accurately summarise the factual history of this matter at [2] to [4] The Court adopts these submissions as its own. They provide, with some amendments, as follows.
The Applicant is a citizen of Australia. The Visa Applicant is a citizen of Vietnam.
On 17 April 2015 the Visa Applicant applied for the Visa on the basis of her relationship with the Applicant (Visa Application).[1] The Visa Application included the Visa Applicant’s children. Under the Migration Act, the Applicant is considered the “sponsor” of the Visa Application.
[1] Court Book (CB) 1-188.
The Department of Immigration and Border Protection (Department) requested more information from the Visa Applicant and Applicant on 17 April 2015.[2] The Applicant and Visa Applicant provided further information on 22 September 2015.[3]
[2] CB 194-205.
[3] CB 207-216.
On 5 February 2016 the Delegate refused to grant the Visa (Delegate’s Decision).[4]
[4] CB 237-245.
The Applicant has previously sponsored two other visa applicants (namely his ex-wives) to come to Australia. The Delegate therefore found that the Applicant was affected by the sponsorship limitation (Sponsorship Limitation) set out in reg 1.20J(1)(a) of the Regulations. The Sponsorship Limitation in reg 1.20J(1) provides that:
Limitation on approval of sponsorships – spouse, partner, prospective marriage and interdependency visas
1.20J
[…]
(1)Subject to subregulations (2) and (3), if a person applies for a visa mentioned in subregulation (1AA) as the spouse, de facto partner or prospective spouse of the sponsor, the Minister must not approve the sponsorship of the applicant unless the Minister is satisfied that:
(a)not more than 1 other person has been granted a relevant permission as:
(i)the spouse, de facto partner or prospective spouse of the sponsor on the basis of a sponsorship or nomination; or
(ii)a person who ceased a relationship of a kind mentioned in subparagraph (i) with the sponsor after the person, or another person mentioned in the prescribed criteria for the visa, had suffered family violence committed by the sponsor; and
(b)if another person has been granted a relevant permission in the circumstances referred to in paragraph (a) – less than 5 years has passed since the date of making the application for that relevant permission; and
(c)if the sponsor was granted a relevant permission as the spouse, de facto partner or prospective spouse of another person on the basis of a sponsorship or nomination – not less than 5 years has passed since the date of making the application for that relevant permission.
[…]
The Delegate was not satisfied that there were compelling circumstances to waive the Sponsorship Limitation pursuant to reg 1.20J(2) of the Regulations. Regulation 1.20J(2) provides that:
Limitation on approval of sponsorships – spouse, partner, prospective marriage and interdependency visas
1.20J
[…]
(2)Despite subregulation (1), the Minister may approve a sponsorship of an applicant for a visa if the Minister is satisfied that there are compelling circumstances affecting the sponsor.
Accordingly, the Delegate found that the Visa Applicant did not meet cl 300.222 in Schedule 2 of the Regulations, which states that:
300.22 Criteria to be satisfied at time of decision
[…]
300.222
(1)The sponsorship of the applicant under clause 301.213 has been approved by the Minister and is still force.
Note: Regulations 1.20J, 1.20KA, 1.20KB and 1.20KC limit the Minister’s discretion to approve sponsorships.
(Emphasis added)
On 13 April 2016 the Applicant applied to the Tribunal for review of the Delegate’s Decision.[5]
[5] CB 246-249.
On 19 March 2018 the Applicant was invited to a hearing on 9 April 2018 (Tribunal Hearing).[6] The Applicant attended the Tribunal Hearing where he was legally represented.[7] The Applicant also provided further information to the Tribunal in support waiving the Sponsorship Limitation.[8]
[6] CB 256-258; 261-263.
[7] CB 402.
[8] CB 268-401.
On 10 April 2018 the Tribunal affirmed the Delegate’s Decision.[9]
[9] CB 481-491.
THE TRIBUNAL’S DECISION
The Tribunal’s Decision appears at pages 482 to 491 of the Court Book. The Minister’s Submissions, at [5] to [7], accurately summarise the Tribunal’s Decision. The Court adopts the summary provided in those submissions, with amendments, as its own.
On the basis of the evidence the Applicant submitted to the Tribunal, the Tribunal found that more than one person had been granted the relevant permission as the spouse or prospective spouse of the Applicant on the basis of his sponsorship or nomination.
As the Sponsorship Limitation had been exceeded, the determinative issue for the Tribunal was whether there were compelling circumstances affecting the Applicant that would justify approving the sponsorship.
The Tribunal accepted that the Applicant and Visa Applicant were engaged four years ago and accepted that they wished to establish a spousal relationship in the future. The Tribunal also accepted the Applicant’s medical evidence that his infertility had affected previous relationships and that he had a desire to raise children.
The Tribunal was ultimately not satisfied that there were compelling circumstances affecting the Applicant on the basis that:
(a)The Tribunal found that the Applicant’s relationship with the Visa Applicant’s children (who were both over the age of 18) did not reflect a close relationship given their “very limited contact”. The Tribunal was therefore not satisfied that the Applicant played a parental role in relation to the children.
(b)The Tribunal found that the Applicant and Visa Applicant had spent a limited amount of time together and had not taken steps to register their marriage despite claiming their relationship was committed. The Tribunal did not accept that the parties had a longstanding relationship, or that the nature and length of the relationship and any hardship resulting from the refusal of the Visa constituted a “compelling circumstance.”
(c)The Tribunal accepted that companionship was a significant element of a spousal relationship but noted that the parties had not yet established a spousal relationship. On the Applicant’s evidence the Tribunal found that the Applicant had spent a limited amount of time with the Visa Applicant and that if companionship was being provided through electronic communication, then such emotional support and communication could continue.
(d)The Tribunal did not accept that the Applicant’s infertility alone was a “compelling circumstance”.
(e)The Tribunal found that it was unclear how the approval of the sponsorship may improve the situation for the Applicant in terms of the stigma attached to infertility.
(f)The Tribunal found that there was no evidence that many of the Applicant’s medical conditions were ongoing, and determined that the existence of a condition that had been treated a number of years ago did not constitute a compelling circumstance.[10]
[10] CB 486-489, [16]-[29].
The Tribunal was not satisfied that the Applicant’s circumstances constituted compelling circumstances and therefore waiving the Sponsorship Limitation under reg 1.20J(2) was not justified.
THE PROCEEDINGS BEFORE THE COURT
The Application was filed on 2 May 2018. This was within 35 days of the date of the Tribunal’s Decision, as required by s 477(1) of the Migration Act.
The Applicant filed the Amended Application on 22 November 2021. The following five (5) grounds of review were advanced in Amended Application:
The Administrative Appeals Tribunal (Tribunal) made the following jurisdictional errors, by reason of which it is claimed that the migration decision under review is not a ‘privative clause decision’ within the meaning given by subsection 474(2) of the Migration Act 1958 (Cth) (Act).
1.The Tribunal’s state of satisfaction was affected by irrational and/or illogical reasoning […] (Ground 1).
Particulars
a.The applicant and his fiancée were engaged in June 2014.
b.The applicant sought to sponsor his fiancée (visa applicant) on a sub-class 300 visa.
c.The applicant was prohibited by reg. 1.20J of the [Regulations] from sponsoring the visa applicant as he had sponsored his previous two wives.
d.The Tribunal’s statutory task was to assess if “compelling circumstances affecting the” applicant justified the waiver of the prohibition on further sponsorship.
e.The applicant made a clearly articulated argument that […] compelling circumstances included […] the longstanding nature of his relationship with the visa applicant, potential hardship if the visa were refused, and the benefit of companionship to the applicant should the visa be granted.
f.The Tribunal at [12] stated that the applicant had provided documents addressing “aspects of his relationship with the visa applicant” but that the Tribunal would not be assessing the nature of the relationship in the review.
g.Contrary to [12], the Tribunal at [21] made an adverse finding that the applicant and the visa applicant’s failure to get married was “not consistent with the existence of a committed relationship and a genuine desire to live together as spouses”.
h.It was irrational an illogical for the Tribunal to refuse to consider the applicant’s evidence and submissions regarding the nature of the relationship, while also making an adverse finding as to the nature of the relationship.
i.Further, or as a consequence of particular (f), the Tribunal failed to consider the material relevant to whether the applicant and the visa applicant to live together as spouses:
i.the joint statement dated 22 September 2015 which included reference to the details as to how they met, […] their engagement party, joint activities and interests, and future plans […]
ii.the statement of the appellant’s sister that she had arranged the engagement […]
iii.written submissions regarding their relationship […]
iv.evidence of communication between the applicant and his visa applicant as well as evidence of financial support provided by the applicant to the visa applicant […]
j.Accordingly, the Tribunal’s conclusion that the applicant’s circumstances were not compelling was irrational and/or illogical and/or affected by an irrational and or illogical path of reasoning.
k.[…]
2.Further or alternatively to ground 1, the Tribunal constructively failed to consider the applicant’s claims as it failed to complete its statutory task to assess whether the applicant’s circumstances were compelling based on the evidence of those circumstances and/or failed to consider relevant and/or corroborative material that supported the applicant’s claim that he and the visa applicant intended to live together as spouses (Ground 2).
Particulars
a.The applicant repeats and relies on particulars (a) to (g) of ground 1.
b.The Tribunal did not consider the applicant’s evidence or submissions regarding the nature of his relationship with visa applicant including:
i.the joint statement dated 22 September 2015 […]
ii.the statement of the appellant’s sister […]
iii.written submissions regarding their relationship […]
iv.evidence of communication and financial support […]
c.The Tribunal by putting aside the information referred to at particular (b) failed to complete its statutory task to assess the applicant’s claims that his circumstances were compelling based on the material and evidence provided by the applicant as to those circumstances.
d.Further or alternatively, the Tribunal failed to consider relevant and corroborative material that the applicant and visa applicant had a long-standing relationship and intended to live together as spouses.
3.The Tribunal failed to consider a clearly articulated claim or a claim that arose from the material that a compelling circumstance was the applicant’s difficulty in finding a suitable partner (Ground 3).
Particulars
a.The applicant provided evidence that his two previous marriages had ended due to his infertility.
b.The applicant claimed the visa applicant […] accepted him despite his infertility, and came from a similar cultural background […]
c.On 9 April 2018, the applicant attended a hearing before the Tribunal with his legal representative […]
d.The applicant’s representative made an oral submission at the Tribunal hearing that there was stigma in the community regarding infertility and that may affect his ability to find a partner, and that the applicant had found it difficult to find a partner in the Australian Vietnamese community.
e.The applicant gave oral evidence that he had been unable to find a partner in Australia.
f.The Tribunal did not expressly refer to or consider the claim that the applicant had found it difficult to find a partner in Australia.
g.The Tribunal at [25] acknowledged this submission at particular (d) […] in part but stated the Tribunal could not see how the visa applicant coming to Australia would “improve the situation”.
h.The Tribunal’s reasons at [25] reveal it construed the claim as merely being that the applicant felt anxiety regarding stigma around infertility, as opposed to the broader claim that the stigma could impact his inability to obtain a partner.
i.The Tribunal failed to consider the applicant’s claim that there were compelling circumstances, being his difficulty finding a partner in Australia in part due to infertility, and that the visa applicant accepted him despite his infertility.
4.The Tribunal failed to provide the applicant a real and meaningful hearing pursuant to s 360 of the Act (Ground 4).
Particulars
a.The Tribunal was required to provide the applicant an invitation to “give evidence and present arguments relating to the issues arising in relation to the decision under review”.
b.That invitation must be real and meaningful: Minister for Immigration & Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126, [37]-[38].
c.At the hearing, the applicant attempted to give evidence about the nature of his relationship with the visa applicant.
d.The Tribunal responded: “I’m not going to assess the nature of your relationship with [Visa applicant]. I’m asking you why you think there are compelling circumstances affecting you.”
e.The Tribunal found the visa applicant and applicant were not genuinely committed to living as spouses at [21] because they had not married prior to the Tribunal decision.
f.The Tribunal’s statement to the applicant at particular (d) mislead the applicant to believe the nature of the relationship was irrelevant to the review, and therefore denied the applicant a real chance to give evidence on the issues in review pursuant to s 360: SUZON v Minister for Immigration and Border Protection (No 2) [2019] FCA 348, [58]-[61].
5.The Tribunal […] unreasonably proceeded to make a decision without making a critical and obvious inquiry (Ground 5).
Particulars
[…]
a.The visa applicant could have given evidence about the nature of her relationship with the applicant, and the applicant’s relationship with her children.
b.On 19 March 2018, the Tribunal sent the applicant an invitation to a hearing indicating it may take evidence from the visa applicant […]
c.On 26 March 2018, the applicant’s representative responded, indicating that the visa applicant would attend the hearing via phone […]
d.On 6 April 2018, the applicant’s representative sent a revised response including the visa applicant’s phone number […]
e.At the Tribunal hearing on 9 April 2018:
i.the Tribunal attempted to contact the visa applicant but found the audio quality meant it could not take reliable evidence;
ii.the applicant asked the Tribunal at the hearing to call the visa applicant again;
iii.the visa applicant was called again and gave evidence that she communicates with applicant through viber; and
iv.otherwise, the Tribunal was unable to take evidence from the applicant’s fiancé.
f.The Tribunal accepted at [17] of its reasons that the applicant is able to communicate with the visa appliction through electronic communication tools on a computer.
g.[…]
h.The Tribunal’s reasons disclose no intelligible basis for its failure to attempt to take evidence from the fiancé through a “electronic communication” such as Skype or Viber.
i.[…]
j.[…] The Tribunal unreasonably proceeded to make a decision without making an […] obvious and critical enquiry - whether the visa applicant could be reached by an electronic communication service: Wei v Minister for Immigration and Border Protection [2015] HCA 51, 257 CLR 22 [49]; Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; 83 ALJR 1123, [25].
(Words in bold and italics added. Otherwise as written)
CONSIDERATION
Ground 1
Ground 1 claims that the Tribunal’s reasoning was irrational and illogical because the Tribunal refused to consider the Applicant’s evidence regarding the nature of his relationship with the Visa Applicant.[11] The Applicant claimed that consequently the Tribunal erroneously made “an adverse finding as to the nature of the relationship.[12]
[11] Further Amended Application, filed by the Applicant on 22 November 2021 (Amended Application), Ground 1, particular (h) 3.
[12] Amended Application, Ground 1, particular (h) 3.
Particulars (a) to (g) outline the relevant facts to Ground 1. Particular (i) to Ground 1, at [25] above, specifies the relevant material that the Tribunal allegedly failed to consider.
The Tribunal’s review function requires it to consider all claims made by an applicant and the important factors and information in a claim.
The Minister’s submissions rely on the argument that all the grounds in the Application invite the Court to undertake a review of the merits of the Tribunal’s Decision. To engage in fact finding about the merits of the Applicant’s case is no part of the Court’s function: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [271].[13]
[13] Response, filed by the First Respondent 27 May 2019, [1]-[2].
The Applicant contended that the Tribunal stated that it would not assess the nature of the relationship but then proceeded to assess the relationship, which led the Tribunal into error. At [12] of the Tribunal’s Decision, the Tribunal stated:
12.The review applicant presented a variety of documents addressing different aspects of his relationship with the visa applicant. The Tribunal has not assessed the nature of the relationship and for the purpose of this review, the Tribunal accepts that the applicant and the sponsor engaged around four years ago and that they claim they wish to establish a spousal relationship.[14]
[14] CB 486, [12].
As submitted by the Minister, the Applicant misunderstood aspects of the Tribunal’s reasons, such as at [12] of the Tribunal’s Decision. The Tribunal’s reasons clarified that whether the relationship was a spousal relationship was not determinative of the issue before it. The Tribunal’s task was to determine whether the Sponsorship Limitation should be waived.
The Applicant claimed that the Tribunal overlooked the evidence provided about the relationship. The Minister correctly submitted that the Tribunal does not have to refer to or make findings about every piece of evidence before it: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at [46]; and Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2002) 168 ALR 407 at [65]. The Tribunal made assessments of the relationship in relation to the issue to be decided by the Tribunal. This is evident by statements such as:
21.[…] The Tribunal does not accept the nature and the length of the relationship and the hardship resulting from the visa refusal, constitute a compelling circumstances affecting the sponsor.[15]
[15] CB 488, [21].
The Tribunal assessed the nature of the Applicant’s relationship with the Visa Applicant in detail, as is evident by statements such as:
17.[…] In the Tribunal’s view, if there was as close relationship between the review applicant and the visa applicant’s children as he suggests, there would be a greater level of communication. […]
18.The Tribunal finds that the review applicant’s communication with the visa applicant’s children is very limited at best. […][16]
[16] CB 487.
The Applicant cannot establish that the Tribunal overlooked evidence that was centrally important to the Applicant’s claims or decision-making process. Additionally, to the extent that Ground 1 takes issue with the weight to be given to the Applicant’s claims, the Applicant invites the Court to engage in impermissible merits review and does not disclose any jurisdictional error. No jurisdictional error can be identified in Ground 1 and Ground 1 must be dismissed.
Ground 2
Ground 2 identifies two (2) alleged errors by the Tribunal. Firstly, that the Tribunal put aside relevant information and therefore failed to complete its statutory task of assessing whether there were compelling circumstances on the evidence. Secondly, that the Tribunal failed to consider relevant and corroborative material.
Particular (a) of Ground 2 relies on the same factual summary as provided in Ground 1 and particular (b) outlines particular evidence the Applicant claimed the Tribunal did not consider.
The Minister described Ground 2 as a reformulation of Ground 1. The Minister submitted the same opposing arguments as Ground 1 and highlighted that the Tribunal made detailed findings on the nature of the relationship and noted that the Applicant had failed to explain why he had postponed his marriage to the Visa Applicant.
The Tribunal considered the evidence and information provided about the relationship but was not persuaded that the nature of the relationship and any hardship associated with the refusal of the Visa constituted compelling circumstances. As stated in [34], to the extent that Ground 2 takes issue with the weight to be given to the Applicant’s claims, the Court cannot conduct merits review. No jurisdictional error can be identified and Ground 2 must be dismissed.
Ground 3
Ground 3 claims that the Tribunal committed an error as it did not consider the Applicant’s claim that he had difficulty finding a partner in Australia due to his infertility. The Applicant contended that this claim needed to be considered as it was material to the Tribunal’s assessment of the compelling circumstances.
Particulars (a) to (g) outline the relevant facts to this claim. Particular (h) claims that the Tribunal’s reasons reveal that it mistakenly construed the Applicant’s claim as “merely being that the applicant felt anxiety regarding stigma around infertility, as opposed to the broader claim that stigma could impact his inability to obtain a partner”.[17] The Applicant alleged that the Tribunal failed to consider this clearly articulated claim and therefore incorrectly concluded that there were no compelling circumstances.
[17] Amended Application, Ground 3, particular (h).
The Minister submitted that the Applicant did not clearly articulate the claim that his infertility was a compelling circumstance as it meant he could not obtain a partner in Australia. The Minister outlined that the Applicant’s submissions provided evidence limited in nature, and simply revealed that he found it difficult to find a partner.
It cannot be said that the Tribunal did not consider the Applicant’s claim. As outlined in the particulars of Ground 3, the Applicant was able to provide oral evidence and explain how his infertility affected his ability to find a partner. The Applicant explained the impact of his cultural background and how the Visa Applicant accepted him. Based on the evidence before it, the Tribunal concluded that this claim did not amount to compelling circumstances.
As correctly submitted by the Minister, the Tribunal’s findings and consideration are responsive to the way the Applicant advanced his case: Singh v Minister for Home Affairs [2019] FCAFC 3 at [37]. The Tribunal considered how the Applicant’s infertility was a “detriment” and resulted in stigma. The Tribunal found that based on the Applicant’s limited evidence and lack of submissions regarding how his compelling circumstances could be remedied, it was unclear how the stigma and infertility would be remedied by the Visa Applicant’s presence in Australia. The Applicant described how the refusal of the Visa would cause inconvenience in regards to him having to go to Vietnam or end the relationship. References to the Applicant’s infertility were limited, tentative, in past tense and were not linked to compelling circumstances. The Applicant did not advance the argument that a compelling circumstance was that he was unable to find a partner and that the Visa Applicant was therefore his only chance of having a partner.
No jurisdictional error can be found as the Tribunal considered the Applicant’s submissions and evidence as they were advanced. As already discussed, the Court cannot engage in impermissible merits review. Ground 3 must therefore be dismissed.
Ground 4
Ground 4 claims that the Tribunal denied the Applicant a real and meaningful hearing as required by s 360 of the Migration Act. The Applicant submitted that the Tribunal “misled the Applicant to believe the nature of his relationship with Visa Applicant was irrelevant to the review”.[18] Particulars (a) and (b) correctly identify the duties of the Tribunal. Particulars (c) to (e) summarise the relevant facts to Ground 4.
[18] Amended Application, Ground 4, particular (f).
The Applicant claimed that at the Final Hearing the Tribunal made the statement “I'm not going to assess the nature of your relationship with [Visa applicant]. I'm asking you why you think there are compelling circumstances affecting you” which led the Applicant to not advance evidence about his relationship.[19] Consequently, as a result of the Applicant being misled, the Tribunal erroneously found that there was no genuine commitment to living as spouses.
[19] Amended Application, Ground 4, particular (d).
The Minister submitted that the statement reproduced in [46] is not misleading and that the Applicant has taken the statement out of context. The Minister submitted that the Tribunal intended to remind the Applicant what the determinative issue was, as he had provided a narrative about personal relationships that were not apparently relevant to the existence of compelling circumstances. The Minister further submitted that the Tribunal’s statement did not prevent the Applicant from giving evidence about his relationship as the Applicant went on to provide further information about the Visa Applicant, and the Tribunal asked the Applicant questions about his relationship and allowed him to answer.
The Tribunal elicited evidence about the relationship from the Applicant and considered written and oral evidence about the nature of the relationship. At the Tribunal Hearing the Tribunal asked the Applicant about the relationship and stated why it was relevant to the case. The Tribunal clearly indicated how the relationship was relevant to its decision and the Applicant was aware that he could give evidence about the relationship and he did so.
No jurisdictional error can be found as the Tribunal did not mislead the Applicant and the Tribunal provided the Applicant with a meaningful hearing. Ground 4 must therefore be dismissed.
Ground 5
Ground 5 claims that the Tribunal made an error by failing to make a critical and obvious inquiry into “whether the visa applicant could be reached by an electronic communication service”.[20] As expanded in particulars (a), (h) and (j) of Ground 5, the Applicant contended that the Visa Applicant could have given evidence about the nature of the relationship with the Applicant and the Applicant’s relationship with her children. Therefore, referencing the principles in Minister for Immigration & Citizenship v SZIAI [2009] HCA 39 (SZIAI), the Applicant claimed that it was unreasonable for the Tribunal to fail to attempt to obtain evidence from the Visa Applicant.
[20] Amended Application, Ground 5, particular (j).
Particulars (b) to (f) of Ground 5 outline factual events related to the Tribunal contacting the Visa Applicant. The Visa Applicant was invited to attend the Tribunal Hearing and indicated that she would attend by phone. At the Tribunal Hearing the Tribunal was able to call the Visa Applicant but found the audio quality would not make reliable evidence. The Tribunal called the Visa Applicant three times and took evidence from her. Particular (f) claims that the Visa Applicant gave evidence that the she communicated with the Applicant electronically and no further evidence was taken from her.
In SZIAI, the High Court held, at [25], that “an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review”. The Minister advanced that it is well-settled that such a “duty to inquire” only arises in very limited, exceptional circumstances, citing Westlake v Attorney-General of the Commonwealth [2017] FCA 1058 at [27]; Aggarwal v Minister for Immigration and Border Protection [2015] 1312 at [57]-[59].
The Minister submitted that no duty to inquire arose in this situation for the following reasons:
(a)There was no obvious inquiry to make as the use of the messaging app Viber (Viber) was only referred to in passing a few times throughout the two-hour long Tribunal Hearing.[21]
(b)There was no critical fact to be ascertained as whether the Visa Applicant could give evidence by Viber was not of central relevance to the matter. The Applicant had provided detailed statements and submissions to make out his case and the Tribunal was under no duty to inquire into critical facts to improve upon the Applicant’s evidence.
(c)As discussed in Minister for Immigration and Citizenship v Le [2007] FCA 1318; (2007) 164 FCR 151 at [63], even if there was an obvious inquiry into a critical fact, the existence of any critical fact could not have been easily ascertained and there is no evidence that information on Viber, or how the Tribunal could operate to elicit evidence from the Visa Applicant, was “readily available”. The Tribunal was not required to look into how to use technology which it was not familiar with to accommodate the Applicant on the basis that at some point in the hearing Viber was mentioned.
[21] CB 402-404.
I accept the Minister’s submissions. It was not unreasonable for the Tribunal to not inquire into using Viber to contact the Visa Applicant, as the Tribunal had already contacted the Visa Applicant on the phone multiple times. The Tribunal did not have the technology available to use Viber and the Tribunal was not obliged to call the Visa Applicant to obtain evidence. Neither the Applicant nor his representative suggested to the Tribunal that they should attempt to contact the Visa Applicant using Viber to obtain more information. The Applicant and Visa Applicant were afforded opportunities to submit written evidence that they considered relevant to the Tribunal’s Decision and the compelling circumstances.
Accordingly, no jurisdictional error can be found and Ground 5 must be dismissed.
CONCLUSION
No jurisdictional error can be found in the Tribunal’s Decision.
Accordingly, the Application as amended must be dismissed. Orders will be made accordingly.
The Minister sought costs fixed in the sum of $7,853. This is the amount allowed in Pt 2 Div 1, Item 3 of Schedule 1 to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), applicable at the time of the Final Hearing. Accordingly, an order will be made that the Applicant pay the Minister’s costs fixed in the sum of $7,853.
I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment of Her Honour Judge C.E. Kirton KC. Associate:
Dated: 29 June 2023
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