Duong v Minister for Immigration and Multicultural Affairs

[2000] FCA 1473

FEDERAL COURT OF AUSTRALIA

Duong v Minister for Immigration & Multicultural Affairs [2000] FCA 1473

CITIZENSHIP & MIGRATION – Family (Residence) (Class AO) visa, subclass 804 (Aged Parent) – application for order of review of decision of Migration Review Tribunal (“MRT”) affirming decision of delegate of Minister refusing grant – whether MRT failed to comply with procedures required to be observed in connection with the making of the decision – where conflicting evidence before MRT as to applicant’s age – whether Tribunal under obligation to give reasons for attaching no weight to particular evidence as to applicant’s age

Migration Act 1958 (Cth) ss 368, 476

Addo v Minister for Immigration and Multicultural Affairs [1999] FCA 940 referred to
Minister for Immigration and Multicultural Affairs v Singh [2000] FCA 845 applied
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 referred to

SAU NGOC DUONG v MINISTER FOR IMMIGRATION &
MULTICULTURAL AFFAIRS

N 626 OF 2000

EMMETT J
6 OCTOBER 2000
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 626 OF 2000

BETWEEN:	SAU NGOC DUONG APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	EMMETT J
DATE OF ORDER:	6 OCTOBER 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The application be dismissed.

2.        The applicant pay the respondent’s costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 626 OF 2000

BETWEEN:	SAU NGOC DUONG APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	EMMETT J
DATE:	6 OCTOBER 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant arrived in Australia on 25 August 1996 as the holder of a (Long Stay) (Visitor) visa, subclass 686.  The visa was valid until 25 February 1997.  On 24 February 1997 the applicant lodged an application for a Family (Residence) (Class AO) visa on the basis that she was the aged parent of her son Kiet Duong who is a settled Australian citizen and who nominated the applicant for the grant of a visa.  The application was refused on 29 July 1997 on the basis that the applicant was not old enough to be an aged parent.  On 3 September 1997 the applicant lodged an application for review with the Migration Internal Review Office (“MIRO”).  MIRO affirmed the decision on 26 November 1997.  On 24 December 1997 the applicant sought review by the Immigration Review Tribunal.  When that Tribunal ceased to exist on 31 May 1999 the application was transferred to the Migration Review Tribunal (“the Tribunal”) on 1 June 1999.  On 18 May 2000 the Tribunal affirmed the decision to refuse the grant of a Family (Residence) (Class AO) visa subclass 804 (Aged Parent). 

2. On 24 February 1997 the completed form 887 lodged by the applicant stated that the applicant was 56 years of age at the time of the application.  The applicant stated, in the form, that she was born on 14 November 1941 in China.  In the Form 80 “Personal Particulars for Character Assessment” that accompanied the application the applicant also stated she was born in China on 14 November 1941.  The applicant’s passport gave her birth date as 14 November 1941.  A number of other documents from the applicant's migration agent produced to the Department of Immigration and Multicultural Affairs also gave her birth date as 14 November 1941.  The applicant also stated in her medical examination Form 26 that she was born on 14 November 1941.  A police certificate regarding the applicant's character from the Bureau of Justice in Vietnam also gave her birth date as 14 November 1941. 

3. The Tribunal’s reason for rejecting the application was that the applicant did not satisfy the definition of “aged parent”.  It is sufficient, for present purposes, to say that, in order to satisfy that definition, it would be necessary for the applicant to establish that she was aged 62½ years at the date of the application.  If she was born on 14 November 1941 she clearly did not satisfy that requirement.  

4. The applicant told the Tribunal that her real date of birth was 14 November 1931 and that when the Vietnamese authorities made a mistake and recorded it as 14 November 1941 she claimed it was too difficult to correct the mistake in Vietnam.  However, when she was required to lodge a testamentary claim she applied to the court in Vietnam to obtain a substitute birth certificate with an amended birth date.  The Tribunal recorded that despite that court record she told the Tribunal she went back to using her old incorrect date of birth on all future official documentation.  She subsequently told the Tribunal that, when applying for a permanent visa application to stay in Australia, she had forgotten about the amended birth certificate.

5. The evidence before the Tribunal included two documents in Vietnamese for which there were English translations.  The two documents purported to be orders of the Court of Conciliation of Saigon and Saigon Magistrates Court respectively.  It is sufficient to say that in those certificates the date of birth of the applicant was shown as 14 November 1931.  Reference was made in the documents to witnesses who had declared that that was her date of birth.  However there was no evidence as to who those witnesses were or the source of their knowledge of such matters. 

6. The Tribunal said in its reasons as follows:

   “The Tribunal has carefully considered the evidence and material provided by the Visa Applicant but is not convinced that the Visa Applicant's correct date of birth is 14 November 1931.”

   Subsequently the Tribunal said:

   “The Tribunal after considering all the evidence in this matter finds that the Visa Applicant’s date of birth is 14 November 1941.  The Tribunal is satisfied that the Visa Applicant’s date of birth is that reflected in the Visa Applicant's current passport and reflected in the information and material provided to the Department in the original visa application.  The Tribunal finds, on balance, that at the time of application the Visa Applicant was not at least 62.5 years of age and she was unable to satisfy the requirements as ‘aged parent’ as defined in Regulation 1.03 and clause 804.221 of the criteria.”

7. The grounds relied on in the application for review to this Court are as follows:

   “(2)S.476(1)(a) of the Migration Act 1958

   - the decision of the Migration Review Tribunal… was made in breach of the requirements of paragraph 368(1)(b) of the Migration Act 1958

   Particulars: 

   The Migration Review Tribunal considered the substitution birth and marriage certificates obtained by the applicant in 1966 and 1969 but did not give its reasons for rejecting those documents as being indicative or conclusive of the applicant's birth date being 14 November 1931.

   (3)S.476(1)(a) of the Migration Act 1958

   - the decision of the Migration Review Tribunal… was made in breach of the requirements of paragraphs 368(1)(c) of the Migration Act. 

   Particulars. 

   The Migration Review Tribunal considered the substitution birth and marriage certificates obtained by the applicant in 1966 and 1969 but did not set out its findings in relation to those documents. 

8. Section 368 of the Migration Act 1958 (Cth) (“the Act”) relevantly provides as follows:

   “(1)Where the Tribunal makes its decision on a review, the Tribunal must, subject to paragraphs 375A(2)(b) and 376(3)(b), prepare a written statement that:

   (a)sets out the decision of the Tribunal on the review;

   (b)sets out the reasons for the decision;

   (c)sets out the findings on any material questions of fact, and;

   (d)refers to the evidence or any other material on which the findings of fact were based.”

   As the grounds indicate, reliance is placed on asserted non-compliance with paragraphs (b) and (c). Section 368 is in relatively the same terms as section 430 of the Act that has been the subject of considered decisions of the Full Court. Section 368 does not impose an obligation to do anything more than to refer to the evidence on which the findings of fact are based. The section does not require a decision-maker to give reasons for rejecting evidence inconsistent with the findings made. It is not necessary in order to comply with section 368 for the Tribunal to give reasons for rejecting or attaching no weight to evidence or other material that would tend to undermine any finding which it made.

9. A requirement to set out findings on material questions of fact and refer to the material in which the findings are based is not to be translated into a requirement that all pieces of conflicting evidence relating to a material fact be dealt with – see Addo v Minister for Immigration and Multicultural Affairs [1999] FCA 940 and Minister for Immigration and Multicultural Affairs v Singh [2000] FCA 845 at paragraphs 64 and 56 respectively.

10. The provision of a statement in compliance with section 368 allows a party dissatisfied with the decision to determine whether some reviewable error has been committed by the Tribunal in making its decision. A failure to comply with the requirements of section 368 may make it impossible to ascertain whether there is any other reviewable error in the decision-making process. It would frustrate the intended operation of the review process provided for in the Act – see Singh (above) at paragraph 36.

11. The Tribunal is under a duty to make and set out findings on all matters of fact that are objectively material to the decision that it is required to make. It must make findings on questions of fact that are central to the case raised by the material and the evidence before it. Nevertheless the material facts referred to in section 368 are not confined to the facts the statute requires to be decided. Whether a question of fact is material may be influenced or determined by the way the Tribunal has approached the case as revealed by its reasons for decision. The reasoning process a Tribunal adopts may require a decision on a question of fact in order to complete the logical chain the Tribunal has adopted as the basis for its decision. Failure by a Tribunal to set out its findings in relation to that fact would involve a contravention of section 368(1)(c) – see Singh (above) at paragraph 54 and 55.

12. However, a distinction is clearly drawn between material questions of fact on the one hand and material and evidence that might be relevant to a finding on the material question of fact.  The two certificates to which I have referred bearing dates 1966 and 1969 are clearly material or evidence relating to a material question of fact.  However, the only relevant material question of fact for present purposes is the date of birth of the applicant.  It was open to the Tribunal either to accept or reject the evidence of the two certificates.  Clearly, the Tribunal rejected that evidence in making the finding that it made.  I do not consider that there was any obligation on the Tribunal to explain why it chose to give greater weight to the evidence that it did accept than to the two certificates.

13. The obligation to set out the reasons for a decision under section 368(1)(b) could well require the Tribunal to state whether it has rejected or failed to accept evidence going to material issue in the proceedings. Whenever rejection of evidence is one of the reasons for the decision, the tribunal must set that out as one of its reasons. However, it is not necessary for the Tribunal to give a line by line refutation of the evidence for the claimant either generally or in those respects where there is evidence that is contrary to findings of material fact made by the tribunal. To do so would be contrary to the provisions of the Act itself that require the tribunal to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick – see McHugh J in Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407, paragraph 65.

14. The Tribunal did not give explicit reasons for attaching no weight to the two certificates. However, I do not consider that the Tribunal had an obligation to do so for the reasons just outlined. Accordingly, I do not consider that any ground of review under section 476 has been established. Accordingly, in my view, the application should be dismissed with costs.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:             18 October 2000

Counsel for the Applicant:	Mr R Killalea
Solicitor for the Applicant:	Coelho & Coelho
Counsel for the Respondent:	Mr M Leeming
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	6 October 2000
Date of Judgment:	6 October 2000