Le v Minister for Immigration

[2018] FCCA 3215

FEDERAL CIRCUIT COURT OF AUSTRALIA

LE v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 3215

Catchwords:
MIGRATION – Application for judicial review of decision of Administrative Appeals  Tribunal (Tribunal) affirming decision not to grant Partner (Migrant) (Class BC) subclass visa (Partner visa) – whether in the course of reviewing a decision not to grant the applicant a Partner visa the Tribunal failed to comply with s.359A of the Migration Act 1958 (Cth) – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.5F, 359A, 476

Cases cited:

MZXBQ v Minister for Immigration and Citizenship [2008] FCA 319
SAAP v Minister for Immigration [2005] HCA 24
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26

Applicant: VAN HUAN LE

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2384 of 2016

Judgment of: Judge Manousaridis

Hearing date: 9 November 2017

Date of Last Submission: 9 November 2017

Delivered at: Sydney

Delivered on: 9 November 2018

REPRESENTATION

Counsel for the Applicant: Mr L Karp

Solicitors for the Applicant: My T Nguyen Solicitors

Solicitors for the Respondent: Ms S Given of HWL Ebsworth Lawyers

ORDERS

1. The application is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2384 of 2016

VAN HUAN LE

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The issue in this application for a remedy under s.476 of the Migration Act 1958 (Cth) (Act) is whether the second respondent (Tribunal), in the course of reviewing a decision of a delegate of the first respondent (Minister) not to grant the applicant a Partner (Migrant) (Class BC) visa (Partner visa), failed to comply with s.359A of the Act.

2. To be in a position to describe and consider the ground on which the applicant relies, it will be necessary to say something about some of the criteria the applicant was required to meet before he could be granted a Partner visa, the background to the application to the Tribunal, and the Tribunal’s reasons for affirming the delegate’s decision.

Partner visa requirements

1. To have been entitled to a Partner visa the applicant had to satisfy, among other things, the criterion specified in cl.100.221(2)(b) of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations) as those Regulations stood at the time the applicant applied for the Partner visa.[1] That paragraph requires that at the time of decision the applicant “is the spouse or de facto partner of the sponsoring partner”. Subsection 5F(1) of the Migration Act 1958 (Cth) (Act), as it stood at the time the applicant applied for the Partner visa, provided that a person is the “spouse” of another person if, under s.5F(2) of the Act, the two persons are in a “married relationship”. Under s.5F(2) of the Act, persons are in a “married relationship” if:

   a)they are married to each other under a marriage that is valid for the purposes of this Act; and

   b)they have a mutual commitment to a shared life as husband and wife to the exclusion of all others; and

   c)the relationship between them is genuine and continuing; and

   d)they:

   i)live together; or

   ii)do not live separately and apart on a permanent basis.

   [1] For ease of expression I will speak of the Regulations and the Act in the present tense, it being borne in mind that it is the Regulations and the Act as they stood on 2 March 2012 that are relevant.

2. Subsection 5F(3) of the Act provides that the Regulations “may make provision in relation to the determination of whether one or more of the conditions in paragraphs (2)(a), (b), (c) and (d) exist”. The Regulations have made provision, and this is to be found in reg.1.15A of the Regulations. Sub regulation 1.15A(2) provides that, when considering an application for a Partner visa (among other subclasses of visas), the Minister must consider all the circumstances of the relationship, including the matters set out in reg.1.15A(3) of the Regulations. Those matters are:

   a)the financial aspects of the relationship, including any joint ownership of real estate or other major assets; any joint liabilities; the extent of any pooling of financial resources, especially in relation to major financial commitments; whether one person in the relationship owes any legal obligation in respect of the other; the basis of any sharing of day-to-day household expenses; and

   b)the nature of the household, including any joint responsibility for the care and support of children; the living arrangements of the persons; and any sharing of the responsibility for housework; and

   c)the social aspects of the relationship, including whether the persons represent themselves to other people as being married to each other; the opinion of the persons’ friends and acquaintances about the nature of the relationship; and any basis on which the persons plan and undertake joint social activities; and

   d)the nature of the persons’ commitment to each other, including the duration of the relationship; the length of time during which the persons have lived together; the degree of companionship and emotional support that the persons draw from each other; and whether the persons see the relationship as a long-term one.

3. In addition the applicant was required to comply with cl.100.221(2)(c) of Schedule 2 to the Regulations which provided that at least two years have elapsed since the application was made.

The progress of the applicant’s claim for a Partner visa

1. The applicant, who is a national of Vietnam, applied for a Partner visa on 2 March 2012. On that day he also applied for a Partner (Provisional) (Class UF) subclass 309 visa (Temporary visa). In his application the applicant claimed he and the sponsor were married, and that the sponsor had one child from a previous marriage. The applicant was granted a Temporary visa on 24 September 2012.

2. On 12 November 2014 the applicant submitted to the Department of Immigration and Border Protection (Department) documents relevant to showing that two years had passed since the application was made and also to provide evidence of the current status of the relationship between the applicant and the sponsor.[2] The applicant stated, among other things, that he and the sponsor live together as a couple and are expecting a child together; and the applicant provided supporting documents, including a bank statement for a joint bank account, and various other accounts and documents addressed to a unit in Belconnen, ACT (Belconnen Unit). In a statutory declaration the applicant provided to the Tribunal the applicant noted he witnessed the sponsor give birth to her second child, but the sponsor had confessed to the applicant that the child was not the applicant’s son, but was conceived “during a one night stand affair”.[3]

   [2] CB111

   [3] CB295

3. During the hearing the Tribunal put to the applicant and to the sponsor evidence each had given which the Tribunal considered to be inconsistent with evidence the other had given.[4]

   [4] T12, T14, particularly at T14.25. (A transcript of the hearing before the Tribunal is annexed to the affidavit of M Y Tran.)

Tribunal’s reasons

1. The Tribunal accepted the applicant and sponsor are validly married; that persons who provided statements attesting to the relationship of the applicant and the sponsor believe the relationship to be genuine; and that the applicant and the sponsor participated in joint social activities and, at least on some occasions, represent themselves to others as being in a relationship.[5]

   [5] CB343, [9]

2. The Tribunal, however, found the applicant’s and sponsor’s finances are completely separated, and that the evidence relating to their financial arrangements had been fabricated for the purpose of the Partner visa application.[6] The Tribunal relied on the following matters:

   a)The applicant provided bank statements relating to a joint account he and the sponsor held, and bank statements in relation to a bank account held by the applicant. The applicant told the Tribunal he does not use the joint bank account because he does not know how to use a bank card; and that, although the applicant does not work he receives an allowance form his aunt and sister and gives some part of that allowance to the sponsor who deposits it into the joint account. The sponsor, on the other hand, was unaware of any such arrangement. She told the Tribunal the applicant’s sister “gives them money for their children”, but was unaware whether the sister also gives money for the applicant’s own expenses, or how much she might give. The Tribunal found it is not possible for the applicant to save money and give money to the sponsor while the sponsor is unaware of that; and the “parties’ evidence on the issue has been untruthful”.[7]

   b)Although the applicant said that at least some of the money he receives from his sister which he gives to the sponsor is deposited into the joint account, the bank statements the applicant presented do not have any deposits other than transfers from another bank.[8]

   c)The applicant and sponsor displayed a lack of knowledge about each other’s finances.[9] The Tribunal set out five examples. These included the applicant’s evidence that he receives a weekly allowance of $100 from his aunt and sister but, on the other hand, the sponsor stating they have enough money and the sister only provides the applicant money when they need it, and is not a regular arrangement.[10] Another example is the sponsor’s having stated the applicant’s sister gives money for the children but the applicant being unaware of that practice.[11]

   d)Given the applicant’s evidence that he did not use a bank card and that the sponsor already had an established account, there did not appear to have been any purpose in opening a joint bank account.[12]

   [6] CB343, [10]

   [7] CB343, [11]

   [8] CB343, [12]

   [9] CB344, [14]

   [10] CB344, [14.d.]

   [11] CB344, [14.d.]

   [12] CB344, [15]

3. The Tribunal, therefore, was not satisfied the applicant and the sponsor pool financial resources, or that they share day to day household expenses, or that they have joint liabilities or joint ownership of assets, or that they owe legal obligations towards each other.[13]

   [13] CB345, [17]

4. As for the nature of the household, the Tribunal found the applicant and sponsor gave consistent evidence about some aspects of their living arrangements, but significant inconsistent evidence in relation to other aspects.[14] These included the applicant stating the sponsor had been on the waiting list for the Belconnen Unit for six months whereas the sponsor said she had been on the waiting list for two years;[15] and the applicant said the rent on their previous accommodation was $110 and the rent on the current accommodation is $80 a week, whereas the sponsor said the rent on both the previous and current accommodation was $80 a week.[16] The Tribunal also found the applicant was unfamiliar with the sponsor’s employment, which indicated to the Tribunal either the applicant and the sponsor do not live together or they have very little communication and have not, therefore, formed a joint household.[17] Finally, the Tribunal was not satisfied the applicant had adopted a parental responsibility towards the sponsor’s children, and it was not satisfied the applicant and sponsor have joint responsibilities for the care and support of the children.[18]

   [14] CB345, [18]

   [15] CB345, [19]

   [16] CB345, [20]

   [17] CB345, [21]

   [18] CB346, [26]

5. The Tribunal then considered the nature of the commitment of the applicant and the sponsor to each other. The Tribunal found the applicant appeared to have very little knowledge about the sponsor’s relationship with the father of the sponsor’s child, or about whether the child has any relationship with the father;[19] it noted that the applicant said he and the sponsor wanted to have children once he finds a stable job and when the youngest child is a little older, whereas the sponsor said they are trying to have children and want to have children as soon as possible, and that there is no need to wait for anything before they have children;[20] the Tribunal found that although the applicant was aware of the date on which the sponsor divorced her former husband, he could not recall the date or year the sponsor separated from her former husband, even though the applicant claimed the sponsor informed him about it;[21] and the Tribunal formed the view there were significant aspects of the applicant’s and sponsor’s lives that appeared unfamiliar too each other.[22]

   [19] CB346, [28]

   [20] CB347, [29]

   [21] CB347, [30]

   [22] CB347, [31]

6. The Tribunal concluded the applicant is not a person of credibility, and that he fabricated his claims, in particular in relation to the circumstances surrounding the birth of the second child and the financial aspects of the relationship.[23] The Tribunal was not satisfied the applicant and the sponsor have a mutual commitment to a shared life as husband and wife to the exclusion of all others, or that the relationship between the applicant and the sponsor is genuine or continuing. For that reason, it was not satisfied the applicant is the spouse of the sponsor.

   [23] CB347, [32]

Ground of application

1. The applicant relies on the one ground of application contained in the amended application:

   The Tribunal erred in failing to comply with s.359A of the Migration Act.

   Particulars

   (a) Information given by the sponsor and said to be inconsistent with that given by the visa applicant was not given to the visa applicant, he being an “applicant” in the proceedings before the Tribunal, within the meaning of s.359A of the Migration Act.

   Further particulars

   (i) The sponsor’s evidence, inconsistent with that of the applicant that the applicant’s sister gave the applicant money for the children, but she did not know for what other purpose or how much she gave.

   (ii)     The sponsor’s evidence, inconsistent with that of the applicant that the applicant’s sister only provides funds when the need it but that is not regular arrangement.

   (iii)    The sponsor’s evidence, inconsistent with that of the applicant, that the applicant never deposited money into their joint account.

   (iv)    The sponsor’s evidence, inconsistent with that of the applicant, that she had been on a public housing waiting list for their current for their current home for two years.

   (v) The sponsor’s evidence, inconsistent with that of the applicant, that the rental on their current residence, and that or their previous residence, was $80.00/week.

   (vi)    The sponsor’s evidence, inconsistent with that of the applicant as to where she had worked after the birth of her second child.

   (vii)   The sponsor’s evidence, inconsistent with that of the applicant, that the couple were looking to have children as soon as possible.

2. In his written submissions, counsel for the applicant accepted that during the hearing the Tribunal put to the applicant the sponsor’s evidence identified in the particulars (Relevant Information).[24] Counsel submits, however, that the Tribunal did not do that which it was required by s.359A or s.359AA of the Act to do.[25] These submissions imply that counsel contended that the Relevant Information is “information” as that word is used in s.359A of the Act. That is, counsel submitted the Relevant Information was information that the Tribunal considered “would be the reason, or a part of the reason, for affirming the decision that is under review”. Counsel further submitted that the Relevant Information is similar to the information considered in SAAP v Minister for Immigration,[26] where, counsel submitted, “highly relevant evidence of a witness, inconsistent with that of the visa applicant, was disclosed to the visa applicant, but not in the way required by s.424A, the Part 7 analogue to s.359A”.[27]

   [24] Applicant’s Outline Submissions, [16]

   [25] Applicant’s Outline Submissions, [21]

   [26] [2005] HCA 24

   [27] Applicant’s Outline Submissions, [17]

3. In his oral submissions, counsel for the applicant particularly relied on the judgment of Heerey J in MZXBQ v Minister for Immigration and Citizenship.[28] In that case a judge of this Court held that information the Refugee Review Tribunal (RRT) said was relevant to credibility was not “information” for the purpose of s.424A of the Act because the RRT did not refer to the information in its reasons for decision. Heery J held this was incorrect; but his Honour nevertheless found that the information went only to credibility and, for that reason, was of no dispositive relevance to the claims made by the applicant. In particular, Heerey J found the information did not undermine the claims the applicant in that case made. Counsel relied on the following passage from his Honour’s judgment:[29]

   SZBYR, and in particular [17] of the majority judgment, essentially says that a court must assess the “information” in question in terms of its dispositive relevance to the Convention claims advanced by the applicant before the Tribunal.  For example, let it be assumed an applicant claimed fear of persecution in a country because he was a Christian, and the Tribunal has a written statement from X that the applicant said to him he never was a Christian and had invented the claim in order to get a visa.  If true, X’s statement, being “evidentiary material or documentation”, would be a reason for the Tribunal’s affirming the refusal of a visa.  It would “undermine” his claims to have well-founded fear of persecution by reason of religion.  By contrast, a statement by Y that the applicant had worked in Australia under a false name would at best only go to the applicant’s credibility.  If the Tribunal in either of these hypothetical instances had not given a s 424A notice the reviewing court would have to characterise the statements of X and Y and determine whether or not they attracted the s 424A obligation as at the time they came to the Tribunal’s attention.  This assessment would not depend on the use the Tribunal subsequently made of the statements in its reasons.

   [28] [2008] FCA 319

   [29] [2008] FCA 319, [27]

4. On the basis of this passage, counsel submitted that “the particularised facts in the amended application go directly to undermining” the applicant’s claims “in relation to the facts the [T]ribunal was required to consider under 1.15A” of the Regulations.

5. Ms Given, who appeared for the Minister, accepted the Tribunal did not, in relation to the Relevant Information, do that which s.359A require be done in relation to “information” as that word is used in that section. Ms Given submitted, however, that the Relevant Information is not “information” to which s.359A of the Act applies and, for that reason, that section did not apply. In particular, Ms Given submitted that inconsistencies and doubts do not constitute “information” as that word is used in s.359A of the Act; and the sponsor’s evidence which the Tribunal considered to be inconsistent with that of the applicant did not contain “in [its] terms a rejection, denial or undermining of the” applicant’s claims. These quoted words are taken from the judgment of the plurality in SZBYR v Minister for Immigration and Citizenship.[30]

   [30] [2007] HCA 26, at [17]

6. The plurality’s judgment in SZBYR has been taken to be authority for at least two principles, one negative, and one positive. The negative principle is that “information” within the meaning of s.359A of the Act (or its Part 7 analogue, s.424A) does not include a finding that two statements are inconsistent. The positive principle is that, to be “information” within the meaning of s.359A of the Act (or its Part 7 analogue, s.424A), the information must contain “in [its] terms a rejection, denial or undermining of the” applicant’s claims. These principles were applied by the plurality in SZBYR to facts that are analogous to those before me.

1. SZBYR concerned a husband and wife who had applied for protection visas. The question before the High Court concerned statements made by the husband in a statutory declaration the RRT found were inconsistent with later statements he made. The visa applicants submitted it was the inconsistencies between the statements that constituted the relevant “information” for the purposes of s.424A of the Act. In their oral submissions, however, the visa applicants “focused on the provision of the relevant passages in the statutory declaration itself, from which the inconsistencies were later said to arise”.[31] (That corresponds to the applicant’s contention that it is the inconsistent statements of the sponsor that constitutes the Relevant Information). The plurality found that neither the inconsistencies between the statements made in the statutory declaration and the later statements, nor the statements made in the statutory declaration itself, could properly be characterised as “information” or “information that would be the reason, or a part of the reason, for affirming the decision under review”.

   [31] [2007] HCA 26, [15]

2. The plurality’s reasons for concluding the inconsistencies were not “information” are to be found in the following passage (emphasis added):[32]

   . . . if the reason why the Tribunal affirmed the decision under review was the Tribunal's disbelief of the appellants' evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting “information” within the meaning of par (a) of s 424A(1). Again, if the Tribunal affirmed the decision because even the best view of the appellants' evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute “information”. Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs that the word “information”[33].

   “does not encompass the tribunal's subjective appraisals, thought processes or determinations … nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc”.

   If the contrary were true, s 424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process.  However broadly “information” be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence.  The appellants were thus correct to concede that the relevant “information” was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself.

   [32] [2007] HCA 26, [18]

   [33] (2004) 206 ALR 471 at 476‑477, citing Tin v Minister for Immigration and Multicultural Affairs [2000] FCA 1109 at [54]; Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396 at 428; Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 1679 at [25]; WAGP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 124 FCR 276 at 282‑284.

3. The plurality’s reasons for concluding the statements contained in the statutory declaration did not constitute “information” which the RRT considered would be the reason or part of the reason for affirming the decision under review are to be found in the following passage (emphasis added):[34]

   Secondly, the appellants assumed, but did not demonstrate, that the statutory declaration “would be the reason, or a part of the reason, for affirming the decision that is under review”. The statutory criterion does not, for example, turn on “the reasoning process of the Tribunal”, or “the Tribunal's published reasons”. The reason for affirming the decision that is under review is a matter that depends upon the criteria for the making of that decision in the first place. The Tribunal does not operate in a statutory vacuum, and its role is dependent upon the making of administrative decisions upon criteria to be found elsewhere in the Act. The use of the future conditional tense (“would be”) rather than the indicative strongly suggests that the operation of s 424A(1)(a) is to be determined in advance – and independently – of the Tribunal's particular reasoning on the facts of the case. Here, the appropriate criterion was to be found in s 36(1) of the Act, being the provision under which the appellants sought their protection visa. The “reason, or a part of the reason, for affirming the decision that is under review” was therefore that the appellants were not persons to whom Australia owed protection obligations under the Convention. When viewed in that light, it is difficult to see why the relevant passages in the appellants’ statutory declaration would itself be “information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review”.  Those portions of the statutory declaration did not contain in their terms a rejection, denial or undermining of the appellants’ claims to be persons to whom Australia owed protection obligations. Indeed, if their contents were believed, they would, one might have thought, have been a relevant step towards rejecting, not affirming, the decision under review.

   [34] [2007] HCA 26 at [17]

4. In my opinion, the sponsor’s evidence identified in the particulars to ground 1 which the Tribunal found to be inconsistent with evidence given by the applicant was not “information” because that evidence “did not contain in their terms a rejection, denial or undermining of the” applicant’s claims for a Partner visa. As with the inconsistent statements contained in the statutory declarations considered in SZBYR, if the sponsor’s evidence were believed, that “would, one might have thought, have been a relevant step towards rejecting, not affirming, the decision under review”. In other words, the sponsor’s evidence did not contain “in [its] terms a rejection, denial or undermining of the” applicant’s claims.

5. The ground on which the applicant relies, therefore fails.

Other matters

1. At the hearing before me Ms Given disclosed to the Court that a certificate under s.357A of the Act had been issued. Counsel for the applicant informed me that the applicant does not intend to raise any ground based on the certificate.

Disposition

1. I propose to order that the application be dismissed. I will consider the question of costs when I pronounce my order dismissing the application.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Date: 9 November 2018