Huynh v Minister for Immigration
[2015] FCCA 34
•9 February 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HUYNH v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 34 |
| Catchwords: MIGRATION – Review of Migration Review Tribunal decision – refusal of a partner visa – visa applicant having no standing before the Tribunal – whether the code of procedure in the Migration Act 1958 (Cth) applies only to a review applicant considered – whether the Tribunal acted unreasonably considered. |
| Legislation: Migration Act 1958 (Cth), ss.5, 5F, 338, 347, 358, 359A, 360, 363A, 379A, 379C Migration Regulations 1994 (Cth) |
| Abebe v Commonwealth (1999) 162 ALR 1 SZBEL v Minister for Immigration (2006) 228 CLR 152 |
| Applicant: | THI BAO THUONG HUYNH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 339 of 2014 |
| Judgment of: | Judge Driver |
| Hearing date: | 28 November 2014 |
| Date of Last Submission: | 19 December 2014 |
| Delivered at: | Sydney |
| Delivered on: | 9 February 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr L Karp |
| Solicitors for the Applicant: | Viet Aust Lawyers |
| Counsel for the Respondents: | Mr D Hughes |
| Solicitors for the Respondents: | DLA Piper |
ORDERS
The application filed on 14 February 2014 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 339 of 2014
| THI BAO THUONG HUYNH |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
This case raises two questions of some significance. The first is whether a visa applicant who has no standing to seek review before the Migration Review Tribunal (Tribunal) is nevertheless entitled to the benefit of the procedural fairness provisions regulating the conduct of the review by the Tribunal[1]. The second question is whether it was unreasonable, in the requisite legal sense, for the Tribunal to deny the visa applicant the opportunity to understand and give evidence about the dispositive issues arising in the review.
[1] in particular ss.359A and 360 of the Migration Act 1958 (Cth) (Migration Act)
These questions arise in the context of an application to the Court to review a decision of the Tribunal made on 24 January 2014. The Tribunal affirmed a decision of a delegate of the Minister not to grant the visa applicant, Mr Le, a provisional partner visa. The following statement of background facts is derived from the submissions of the parties.
The applicant in these proceedings, Ms Huynh, is a citizen of Australia. Mr Le is a citizen of Vietnam. Mr Le applied for a spouse visa outside Australia on 7 September 2011[2]. Ms Huynh was the sponsor[3]. Mr Le and Ms Huynh provided statements[4]. They also provided a marriage certificate dated 29 July 2011.
[2] Court Book (CB) 112. The application is at CB 1
[3] CB 25
[4] CB 53, 57
In order to be eligible for a spouse visa, it was necessary that a delegate of the Minister (and later the Tribunal) be satisfied that the visa applicant is the “spouse” of an Australian citizen[5]. The word “spouse” is defined in s.5F of the Migration Act, and further matters that must be considered are set out in regulation 1.15A. For present purposes, it suffices to note that more is required than the fact of a legal marriage. The decision maker must be satisfied that the applicant and spouse have a mutual commitment to a shared life as husband and wife, and the relationship is genuine and continuing.
[5] Migration Regulations 1994 (Cth) (Regulations), Schedule 2, clause 309.221
In a statement[6], Ms Huynh described how the couple met in Vietnam, and how the relationship developed. That was corroborated by a statement by Mr Le[7]. Ms Huynh’s movement records as at 10 November 2011 indicated that she visited Vietnam on a number of occasions between 2009 and 2011. An officer of the Department interviewed Mr Le, presumably in Ho Chi Minh City on 10 November 2011[8].
[6] at CB 53-4
[7] at CB 57-8
[8] CB 125-131
Mr Le was invited to attend an interview on 10 November 2011 at the Australian Consulate General in Ho Chi Minh City[9]. He was asked to bring any other evidence of his relationship[10].
[9] CB 119-120
[10] CB 120
A record of that interview is at CB 125. Mr Le gave a number of answers that caused the delegate to question whether the relationship was genuine. He was asked to show photos of the couple, but replied that he did not know where they were[11]. He was asked if they kept in phone contact, he replied that they did but there were no phone bills[12]. He could not provide emails that they had sent to each other because they “can’t be printed out” and “I don’t know how to print them”[13]. He said that he had last spoken to Ms Huynh on his mobile at 1pm on that day, but there were no calls to or from Australia on his mobile from that day, and no text messages[14].
[11] CB 127
[12] CB 127
[13] CB 128
[14] CB 130
The delegate decided to refuse the application[15]. He was not satisfied that the relationship was genuine[16].
[15] CB 147
[16] CB 151
In making his decision, the delegate canvassed the matters required to be considered pursuant to regulation 1.15A in deciding whether the marriage was genuine and continuing. He found:
a)that there was evidence of the transfer of money from Ms Huynh to Mr Le on four occasions between September and October 2011, but that no other evidence of financial commitment has been demonstrated[17];
b)there was no evidence of the establishment of any household, which was understandable because the parties lived in different countries[18];
c)while noting the statements provided, the delegate found that the couple did not have a traditional wedding ceremony and claimed that this was due to the death of Mr Le’s paternal grandmother a month beforehand. After considering the statements of the parties and the photos of their wedding day, the delegate was not satisfied that the ceremony had been held according to traditional customs and beliefs and found, further, that there was nothing to suggest that the relationship had been made public to family, friends and acquaintances in Mr Le’s community[19]. Nor in the delegate’s view was there anything to suggest that the couple had presented publically and socially as a couple;
d)in considering the nature of the persons’ commitment to each other the delegate noted a lack of evidence of contact between the parties prior to December 2010. He also considered that Mr Le knew little about Ms Huynh’s personal circumstances and that he provided apparently rehearsed information about the development of their relationship[20]. The delegate then went into detail about what were alleged deficiencies and inconsistencies in evidence as to the extent of the contact of the parties with each other and their knowledge of each other.
[17] CB 149 [4]
[18] CB 149 [5]
[19] CB 149 [6.1]
[20] CB 150 [7]
The delegate was not satisfied that the couple had a mutual commitment to a shared life as husband and wife to the exclusion of all others, and was not satisfied that the relationship was genuine and continuing.
The delegate’s decision was an MRT-reviewable decision under s.338(5) of the Migration Act (because the visa sought was one where the visa applicant must be outside Australia, and must be sponsored). As a consequence, s.347(2)(b) of the Migration Act conferred the right to seek a review upon the sponsor, not the visa applicant.
Ms Huynh applied to the Tribunal for review[21]. In accordance with s.360, she was invited to attend a hearing on 14 January 2014[22]. She did attend, as did a representative[23]. Mr Le gave evidence by way of a telephone call through an interpreter[24].
[21] CB 155
[22] CB 181
[23] CB 201
[24] CB 233 [10]
Prior to the hearing the applicant’s solicitor and migration agent submitted additional evidence of money transfers from Ms Huynh to Mr Le over 2012 and 2013[25]. They also submitted evidence of letters sent from each to the other[26], photographs[27] and a more detailed statement, with English translation, from Mr Le as to the nature and development of the relationship, the wedding, and their contact since the wedding, including Ms Huynh’s travel to Vietnam to be with Mr Le, and their plans for the future[28].
[25] CB 187-191
[26] CB 205-210
[27] CB 211-225
[28] CB 194-198
The Tribunal was also not satisfied that the relationship was genuine[29]. The Tribunal was concerned by the paucity of documentation[30]. It was concerned that an absence of letters and text messages was initially explained by reason of a lack of education, but then letters were produced[31]. It was concerned that the marriage ceremony did not follow the usual customs, and there was no evidence that the applicants had widely represented themselves as being married[32]. The Tribunal was concerned that the application has been contrived for migration purposes[33]. It was concerned that the applicant got the year of marriage wrong[34]. It was concerned about the issues raised during the delegate’s interview about the communication between Ms Huynh and Mr Le. It found Ms Huynh’s claim that she and Mr Le “never text” to be “very unusual” in its experience[35]. It shared the delegate’s views that Mr Le’s answers to the delegate appeared to be rehearsed[36]. For all these reasons, the Tribunal was not satisfied that Mr Le was the “spouse” of Ms Huynh.
[29] The decision record starts at CB 229
[30] [18]
[31] [20]
[32] [27]
[33] [29]
[34] [30]
[35] [36]
[36] [37]
The judicial review application
Ms Huynh relies upon her application filed on 14 February 2014. The grounds in that application are:
1. The Tribunal committed jurisdictional error by failing to give the visa applicant, Phi Thanh Le, who was an applicant for the purposes of s.360 of the Migration Act, a hearing as required by that section.
Particulars
(a) Failure to advise Phi Thanh Le of the issues arising in the review and to give him an opportunity to give evidence about them.
2. It was unreasonable, in the legal sense, and therefore a jurisdictional error, for the Tribunal to fail to take specific evidence from Phi Thanh Le about the issues arising on the review.
Particulars
(a) Mr Le was a participant in the marriage and as such could give first hand evidence about the relationship between the parties thereto.
In addition to the court book filed on 4 April 2014, I have before me as evidence the affidavit of Amy Vo made on 17 November 2014, to which is annexed a transcript of that portion of the Tribunal hearing where the presiding member spoke to Mr Le in Vietnam by telephone.
Both Ms Huynh and the Minister made oral and written submissions.
Consideration
Ground 1 – was the visa applicant (Mr Le) an “applicant” for the purposes of ss.359A and 360 of the Migration Act?
Section 5 of the Migration Act defines a “visa applicant” as:
means an applicant for a visa and, in relation to a visa, means the applicant for the visa.
There is no doubt that Mr Le in this matter was the visa applicant. The word “applicant” is not otherwise relevantly defined but it may be accepted that it is an ordinary English word meaning someone who makes an application. The Migration Act envisages several kinds of application being made; notably visa applications but also other forms of application, including review applications.
Section 338 of the Migration Act establishes in general terms that decisions on visa applications where the applicant is in Australia are generally “MRT reviewable decisions” and in such cases the visa applicant and the review applicant are the same person or persons. In some cases, where the visa applicant is outside Australia, a decision on the visa application is not reviewable by the Tribunal. In other cases, a refusal to grant a visa is reviewable by the Tribunal if the non citizen was required to be sponsored or nominated by an Australian citizen or other persons[37]. Section 347(2)(b) makes clear that in that class of case it is only the sponsor or nominator who has standing to apply to the Tribunal for the review of the visa refusal decision. Ms Huynh concedes that only she and not Mr Le had standing to apply to the Tribunal in the present case.
[37] see s.358(5)
Ms Huynh submits, nevertheless, that even though only she was a “review applicant” for the purposes of the review, Mr Le remained an “applicant”. Ms Huynh submits that because ss.359A and 360 refer to an “applicant” without qualification, at least in the circumstances of a partner visa where the visa applicant and the review applicant have a common interest in the outcome, the procedural fairness obligations arising from those provisions are due to both. In other words, Ms Huynh submits that the Tribunal erred by not inviting Mr Le to the hearing conducted by the Tribunal and by not affording him the same opportunity to respond to adverse material that she enjoyed.
The only reference to a review applicant in Divisions 1-8 of Part 5 of the Migration Act is in s.358. The part, insofar as it relates to the conduct of reviews by the Tribunal otherwise refers to “an applicant”. It might be supposed that, for the purposes of applications to review decisions before the Tribunal, the terms “applicant” and “review applicant” are intended by Parliament to be synonymous. On the other hand, it is certainly arguable that, at least in circumstances where a visa applicant and a review applicant share a common interest in the outcome of a review but where the visa applicant lacks standing, Parliament intended that the interest of the visa applicant would be protected in ss.359A and 360. It is not necessarily impracticable for the Tribunal to afford that protection just because the visa applicant is located overseas. Neither can it be said that the notification obligations by the Tribunal would be incapable of rational administration[38].
[38] note in this connection that the review application form reproduced at CB 159 required the disclosure of the details of Mr Le, including his address
In oral argument, counsel for the Minister referred to s.379A of the Migration Act.
It may be observed that s.379A is not specifically directed to “applicants”. It is directed to a range of persons some of whom are applicants. In addition, sub sections 379A(4) and (5) permit the sending of documents to persons, including applicants who are not in Australia.
The corresponding subsections of s.379C (sub sections 379C(4) and (5)) provide that a document sent by prepaid post to an address outside Australia is taken (that is deemed – see s.5(23)) 21 days after its date, and that a document sent by electronic means is taken to be received at the end of the day on which it was transmitted. There is no difficulty or inconvenience in applying those provisions to applicants for visas, wherever they may be in the world, as well as review applicants.
The only authority directly in point that I was taken to by counsel is this Court’s decision in Vuong v Minister for Immigration & Anor[39] at [63]-[76]. At [73] Scarlett FM (as his Honour then was) said:
The Applicant, who is the review applicant, was invited to appear at a hearing and he gave extensive evidence. In my view s.360 applies to the review applicant and not to the visa applicant in this case.
[39] [2009] FMCA 433
Ms Huynh submits that Vuong was wrongly decided. In my opinion, his Honour was not clearly wrong and in the interests of comity, I should follow his decision.
A further reason for rejecting this ground may be s.363A of the Migration Act which provides:
If a provision of this Part states that a person is not entitled to do something, or to be assisted or represented by another person, then, unless a provision expressly provides otherwise, the Tribunal does not have power to permit the person to do that thing, or to be assisted or represented by another person.
Because of the operation of s.347(2)(b) of the Migration Act Mr Le was not entitled to apply for review to the Tribunal. It would seem consistent with that provision as well as s.363A that the Tribunal cannot permit a person to participate in the review as a party when they are not entitled to be a party to that review. In my opinion, clear words would have been necessary in ss.359A and 360 to confer on a non party to the review an entitlement to be invited to a hearing and to comment on adverse material.
Did the Tribunal afford an adequate opportunity to Mr Le to attend the Tribunal hearing as a witness, and, if not, was that failure unreasonable?
The Tribunal hearing took place on 14 January 2014[40]. The Tribunal’s description of the hearing over the course of its reasons for decision[41], indicated that it discussed the issues that arose on the review with Ms Huynh in considerable detail. However, as is apparent from the transcript of Mr Le’s evidence to the Tribunal, which is annexed to the affidavit of Ms Vo, the Tribunal only asked him a very few general questions and did not raise the regulation 1.15A(3) issues with him.
[40] CB 233 [9]
[41] CB 233 [11], 234 [18], 235 [22], 236 [26]-[27], [30], 237 [31]-[32], 237-8 [35]-[36]
It is common ground that Mr Le did attend the Tribunal hearing briefly by telephone as a witness. Indeed, it is apparent from the response to the Tribunal’s hearing invitation[42] that Ms Huynh wanted Mr Le to attend by telephone and that the Tribunal foreshadowed that it may wish to take evidence from him. Nevertheless, the transcript of the telephone conversation between Mr Le and the presiding member shows that the questions asked of him and his answers were inconsequential.
[42] CB 184
The Tribunal recited verbatim the delegate’s reasons[43]. It accepted that the parties are validly married[44]. It also expressed concern at the lack of documentation provided, and the fact that, while claiming a lack of education as a reason for not sending text messages, Mr Le and Ms Huynh communicated by writing letters. The Tribunal suspected that the letters were written to provide evidence of communications[45].
[43] CB 231-233
[44] CB 234 [17]
[45] CB 234-5 [19]-[20]
Dealing with the matters stated in regulation 1.15A(3), the Tribunal found:
a)there were money transfers from Ms Huynh to Mr Le on four occasions in September and October 2011, and a number of fund transfers between June 2012 and November 2013, but the fact that these gifts were not reciprocated was not explained[46];
b)given that the parties resided in different countries, they had limited opportunity to establish a joint household[47];
c)the evidence of the social aspects of the relationship caused the Tribunal concerns that the application was contrived for migration purposes[48].
[46] CB 235 [21]-[23]
[47] CB 235 [24]-[25]
[48] CB 236 [26]-[29]
The Tribunal did not find the evidence of the parties’ commitment to each other persuasive[49].
[49] CB 236-238
Ms Huynh submits that in circumstances where Mr Le’s interest in the outcome was the same as the review applicant and where the Tribunal did nothing to explain to him the issues that would be likely to be dispositive of the review and where nothing of significance was sought by the Tribunal of him the opportunity afforded to him as a witness was unreasonable in a legal sense.
I agree with the Minister’s submissions on this issue. In Abebe v Commonwealth[50] at [187] the High Court stated:
The want of procedural fairness was said to lie in the Tribunal not putting to the applicant any suggestion that her story of detention and rape was untrue. Framed in this way, the submission may, perhaps, assume that proceedings before the Tribunal are adversarial rather than inquisitorial or that in some way the Tribunal is in the position of a contradictor of a case being made by the applicant. Such assumptions, if made, would be wrong. The proceedings before the Tribunal are inquisitorial and the Tribunal is not in the position of a contradictor. It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason. The Tribunal must then decide whether that claim is made out.
[50] (1999) 162 ALR 1
Further, it is plain from SZIAI v Minister for Immigration[51] at [25] that the Tribunal is under no general duty to inquire. In the present case, Mr Le had prepared two statements[52]. The latter statement was produced expressly for the purposes of the review before the Tribunal hearing. Further, the Tribunal had the benefit of the transcript of the delegate’s interview with Mr Le[53] as well as the delegate’s decision[54]. In the light of that material, it is understandable that the Tribunal may not have felt the need to ask Mr Le anything of great moment. Further, I do not see any relevant application of the principles enunciated by the High Court in SZBEL v Minister for Immigration[55] in relation to a non party to the review.
[51] (2009) 259 ALR 429
[52] which are reproduced at CB 57 and 194
[53] CB 125
[54] CB 147
[55] (2006) 228 CLR 152
The Courts have, appropriately, shown considerable latitude to the Tribunal where it has decided not to call a witness requested to be called by the applicant[56]. Here, the witness in question was actually called. The deference shown by a Court must be of a higher order when it comes to the particular questions that a Tribunal asks of a witness. That is more akin to the Tribunal making its own inquiries.
[56] see Minister for Immigration v Katisat [2005] FCA 1908 at [63]
In my opinion, there was nothing procedurally unfair, let alone legally unreasonable, in the questioning of Mr Le by the Tribunal.
Conclusion
Ms Huynh has failed to establish any jurisdictional error in the decision of the Tribunal. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 9 February 2015
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