Le v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 286
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Le v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 286
File number(s): MLG 2072 of 2022 Judgment of: JUDGE SYMONS Date of judgment: 21 April 2023 Catchwords: MIGRATION – application for judicial review of Administrative Appeals Tribunal decision — refusal to grant Partner visa — where Tribunal required to consider whether compelling reasons not to apply Schedule 3 criteria — whether there was evidence to support the Tribunal finding that the applicant and her sponsor would have access to family support in Vietnam — whether finding material — jurisdictional error established — application allowed with costs Legislation: Migration Act 1958 (Cth) s 5F
Migration Regulations 1994 (Cth) cll 202.222, 820.211
Cases cited: BNV18 v Minister for Home Affairs (No 2) [2019] FCA 378
Choi v Minister for Immigration and Border Protection [2018] FCA 291
Minister for Immigration v SZMDS (2010) 240 CLR 611; [2010] HCA 16
Plaintiff M64 v Minister for Immigration and Border Protection (2015) 258 CLR 173; [2015] HCA 50
Division: Division 2 General Federal Law Number of paragraphs: 94 Date of last submission/s: 20 March 2023 Date of hearing: 20 March 2023 Place: Melbourne Counsel for the Applicant Dr A. McBeth Solicitor for the Applicant: Clothier Anderson Immigration Lawyers Counsel for the First Respondent: Ms K. McInnes Solicitors for the Respondents: Mills Oakley Second Respondent: Submitting appearance save as to costs ORDERS
MLG 2072 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: THU HIEN LE
ApplicantAND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE SYMONS
DATE OF ORDER:
21 April 2023
THE COURT ORDERS THAT:
1.A writ of certiorari issue quashing the decision made by the second respondent on 4 August 2022.
2.A writ of mandamus issue, requiring the second respondent to re-determine, according to law, the application for review before it.
3.The first respondent pay the applicant’s costs of the proceeding fixed in the sum of $7,853.
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
JUDGE SYMONS:
INTRODUCTION
By an amended application filed on 1 March 2023, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) made on 4 August 2022. The Tribunal affirmed a decision of a delegate of the first respondent (Minister) not to grant the applicant a Partner (Temporary)(Subclass 820) visa (the visa). The Minister opposes the application and says that it is without merit. The Tribunal has entered a submitting appearance (save as to costs) and has not participated in the proceeding.
BACKGROUND
The applicant is a citizen of Vietnam. She first arrived in Australia on 3 December 2011 on a student visa, which was valid until 24 October 2013. On 23 August 2012, the applicant was arrested for drug related offences. She was released on bail and complied with reporting conditions up until 12 May 2014 when she absconded prior to her plea hearing. The applicant was arrested on 19 October 2017 and upon being convicted of importing a commercial quantity of a border-controlled precursor, served a prison sentence up until 2021. Upon her release from criminal detention, the applicant was transferred into immigration detention where she has since remained.
On 22 October 2021, the applicant applied for the visa on the basis that she had been in a de facto relationship with Mr Tan Nghia “Kenny” Phan (the sponsor) since 1 April 2017 (CB 1-26).
Given that the applicant was not the holder of a substantive visa at the time the application for the visa was lodged, she was required to satisfy the Schedule 3 criteria, being criterion 3001, 3003 and 3004. In issue in this case, criterion 3001 required that an application be made within 28 days after any substantive visa had ceased. However, criterion 3001 could be waived if there were compelling reasons for not applying it. On 25 October 2021, the applicant was notified of this requirement and invited to put forward any claims that she wished the Department to consider (CB 62-69).
On 28 October 2021, the applicant’s legal representative provided submissions directed at establishing that there were compelling reasons not to apply criterion 3001 as well as statements from the applicant and the sponsor (CB 70-87).
On 22 March 2022, a delegate of the Minister refused to grant the applicant the visa (CB 143-155).
The delegate was not satisfied that the applicant was the spouse or de facto partner of the sponsor. The delegate also recorded a finding that there were no compelling reasons not to apply criterion 3001.
On 25 March 2022, the applicant applied to the Tribunal for a review of the delegate’s decision (CB 197-209).
On 20 April 2022, the applicant and sponsor were married (CB 330).
On 24 May 2022, the Tribunal invited the applicant to attend a hearing on 9 June 2022 (CB 240-242).
On 6 June 2022, the applicant’s representative provided the Tribunal with legal submissions and a psychological report prepared by Dr Peter Cook which concerned the sponsor (CB 469-509).
On 9 June 2022, the applicant’s representative provided the Tribunal with a statutory declaration of the sponsor and three other individuals (CB 510 – 526).
On the same day, the applicant participated in a Tribunal hearing with the assistance of an interpreter in the Vietnamese and English languages. The applicant’s representative was also in attendance, along with seven witnesses and the sponsor (CB 527).
On 17 June 2022, the applicant’s representative provided post-hearing submissions to the Tribunal which addressed the applicant’s “concern that if returned to Vietnam, she may be forced out of practical or financial necessity to rely on her family, who were connected to her criminal offending” (CB 531-532). The submissions contained extracts from and attached a report from psychologist Patrick Newton (CB 541-553).
On 4 August 2022, the Tribunal affirmed the decision not to grant the applicant the visa and published a statement of reasons which explained its reasons for doing so (CB 568-582).
THE DECISION OF THE TRIBUNAL
The Tribunal identified the issue before it as whether the applicant satisfied Schedule 3 criteria 3001, 3003 and 3004 and whether there were compelling reasons not to apply those criteria.
The Tribunal found that as the application for the visa had not been made within 28 days of the date on which the applicant had last held a substantive visa the applicant did not satisfy criterion 3001 and that it was therefore required to consider whether there were compelling reasons not to apply this criterion (CB 570 [12]-[13]).
The Tribunal noted at [14] of its decision (CB 570) that:
The expression “compelling reasons” is not defined for these purposes. However, reasons that are compelling should “force or drive the decision-maker” “irresistibly” to some end: Plaintiff M64/2015 v MIBP [2015] HCA 50 at [31]. The reasons or circumstances should be sufficiently powerful to lead a decision-maker to find that the criteria should not be applied: MZYPZ v MIAC [2012] FCA 478 at [10]; Babicci v MIMIA (2005) 141 FCR 285 at [24]. Circumstances which constitute “compelling reasons” for not applying the Schedule 3 criteria can arise at any time, including after the visa application is made: Waensila v MIBP [2016] FCAFC 32.
The Tribunal also made reference to the Explanatory Statement that introduced the “waiver provision” in cl 820.211(2)(d) of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) and in particular the statement that the provision was introduced in recognition of “the hardship that can result if an unlawful non-citizen wishing to remain in Australia on spouse grounds is obliged to leave Australia and apply from overseas” (CB 572 [33]).
In this context, the Tribunal recorded a finding that the applicant and the sponsor were in a married relationship for the purpose of the definition of “spouse” contained in s 5F(1) of the Migration Act 1958 (Cth) (the Act) (CB 572 [33]).
Allied to this finding, the Tribunal also accepted that the applicant and the sponsor were in a “long-standing relationship”. However, the Tribunal did not believe that hardship would automatically ensue if the applicant was to leave Australia. This reflected the Tribunal’s lack of satisfaction that the parties would not both be able to relocate to Vietnam during the period of the processing of the applicant’s offshore visa and that during such time they could continue their relationship together in the one place. The Tribunal found that any hardship experienced by them would likely result from factors that did not relate directly to their relationship and the fact of it being genuine (CB 573 [34]).
The Tribunal then considered what was described as “[i]ssues influencing the sponsor’s capacity to move to Vietnam, including his psychological state”. The Tribunal accepted that the sponsor’s disability support pension would probably be withdrawn if he was to relocate to Vietnam (CB 573 [35]). The Tribunal also found that as the sponsor would likely be away from Australia for more than six months that he would probably need to relinquish his public housing. The Tribunal found that this might mean he would be unable to move back into a public tenancy upon his return to Australia, at least not straightaway (CB 573 [36]).
The Tribunal otherwise noted that much of the evidence and submissions it received were centred on the sponsor’s psychological capacity to move from Australia to Vietnam to live with the applicant. In this context, the Tribunal considered the extracts of the report of psychologist Dr Cook (provided in the submissions) concerning the sponsor’s capacity to move to Vietnam (CB 574 -577 [40]-[56]). It noted that it had concerns that the submissions, the report prepared by Dr Cook and the applicant’s own testimony “completely discounted the potential role that could be played by the applicant’s family” upon any return to Vietnam (CB 574-575 [43] –[48]) as well as concerns that Dr Cook’s statement that the sponsor would have limited access to appropriate psychological and psychiatric treatment in Vietnam was purely speculative and made in the absence of evidence (CB 575 [49]).
The Tribunal further found that Dr Cook’s claim that the higher population density in Vietnam would worsen the sponsor’s anxiety symptoms was at odds with the fact that many parts of Vietnam, including the home province of the applicant’s family, had a lower population density than Melbourne (CB 575 [49]). The Tribunal was critical of Dr Cook’s characterisation of the sponsor’s diagnoses stating that it was attended with some imprecision (CB 576 [53]).
The Tribunal was ultimately not satisfied that the sponsor’s capacity to move to Vietnam or the hardship that might follow from such a move constituted a compelling reason to waive criterion 3001 (CB 576-577[55]-[57]).
The Tribunal next considered the applicant’s claim that her family would be a negative influence in her life if she moved back to Vietnam because (according to the applicant) her family’s activities were the reason for her criminal offending (CB 577 -578 [58]-[65]). The Tribunal did not consider there was sufficient evidence that the applicant’s parents were a negative influence on her such that she and the sponsor would not be able to live with or close to them and receive support from them whilst awaiting the outcome of an offshore partner visa application. In particular, the Tribunal referred to evidence supplied by the sponsor in a statement dated 7 June 2022 in which he had referred to having met the applicant’s family once in Vietnam and how they “were really nice and they made me feel comfortable and like a part of the family”. The Tribunal found that this evidence showed that the applicant’s parents were supportive of the parties’ relationship (CB 578 [63]-[64]).
The Tribunal found that based on the evidence before it and the findings recorded by it and in the absence of evidence to the contrary, it was not satisfied that the parties would not be able to either live with or near or otherwise receive support from, the applicant’s family while they were in Vietnam. It considered that having this support would lessen the parties’ hardship where it did exist and might also mean that the parties were able to be supported financially (CB 578 [65]).
The Tribunal concluded that while it accepted that the applicant and sponsor were in a long-standing spousal relationship, it found that very little (if any) hardship attached to this aspect as the parties were clearly planning on relocating to Vietnam together if the applicant was forced to leave Australia. The Tribunal found that the overall hardship that might ensue from the parties having to relocate overseas, including financial and psychological hardship, was not such that it constituted a compelling reason for not applying the Schedule 3 criteria and as such it affirmed the decision under review (CB 579 [70]-[73]).
PROCEEDINGS IN THIS COURT
On 1 March 2023 the applicant filed an amended application that contained five grounds of review, written submissions and an affidavit of Catherine Jane Farrell affirmed on the same date. The Farrell affidavit attached a transcript of the Tribunal hearing that took place on 9 June 2022.
The Minister filed written submission on 13 March 2023.
The application came before me for final hearing on 20 March 2023. On this date the applicant was represented by Dr McBeth of counsel and the Minister by Ms McInnes of counsel.
Ground one
By this ground the applicant contends that the Tribunal applied the wrong test when it considered the waiver provision and its application to criterion 3001.
The applicant referred to the Explanatory Statement to the amending regulations which introduced the waiver provision and noted that it identified examples of reasons that might engage the waiver, including a situation where the applicant and his or her nominator (or sponsor) were already in a long-standing relationship which had been in existence for two years or longer.
The applicant acknowledged that the Tribunal had characterised the relationship between the applicant and her sponsor as a “long-standing relationship” but submitted that the Tribunal had then confined itself to an “unduly narrow understanding” of the term “compelling reasons” by construing that term as applying only where significant hardship would accrue to the applicant or her sponsor, over and above the hardship that was inherent in them having to depart Australia and live in Vietnam for a lengthy period while an offshore partner visa application was being processed. The applicant submitted that this error revealed itself in the following (underlined) passages of the Tribunal’s written statement that appear at [34] (CB 573).
Although the Tribunal accepts that the parties are in a spousal relationship (after having been in a de facto relationship) and that this relationship is what is termed by the Statement as a “long-standing relationship”, it does not believe it is correct to say that hardship would automatically ensue if the applicant leaves Australia because of this. This is because, as below, the Tribunal is not satisfied that the parties would not both be able to relocate to Vietnam during the period of the processing of the applicant’s offshore visa. They would therefore be able to continue their relationship together in the one place, and any hardship experienced by them would likely result from factors that do not relate directly to their relationship and the fact of it being genuine, which are considered below.
The applicant submitted that the Tribunal in effect had added a gloss to the question that it posed itself by requiring the identification of “substantial and exceptional hardship” and by adding an additional requirement that the length of a relationship would only be a relevantly compelling reason if the relationship itself was the direct cause of significant hardship to the applicant and/or her sponsor.
The applicant made the further submission that requiring members of a long-term relationship to either separate for a protracted period (while the applicant returns overseas to apply for a visa offshore) or to relocate overseas together to allow this process to unfold, were both scenarios that were capable of being compelling reasons in and of themselves. According to the applicant, if the Tribunal was confronted with either one of these scenarios it was incumbent on it to explain what it was about the situation that was not compelling. The applicant submitted that the Tribunal’s attempt to explain itself revealed that it was introducing additional requirements that were not “part of the test”.
The Minister submitted that the Tribunal did not impose too high a threshold in considering the compelling reasons test, including because it did not use the language of “substantial and exceptional hardship”. Instead, the Tribunal embarked upon its own consideration of the parties’ relationship and what would occur if the waiver were not granted. The Tribunal was not satisfied that the existence of a long-standing relationship was a compelling reason in this case because not waiving the Schedule 3 criteria would not result in that relationship being affected by a separation of the parties.
The Minister referred the Court to the decision of Choi v Minister for Immigration and Border Protection [2018] FCA 291 (Choi) in which Allsop CJ noted the central place of hardship in the consideration of “compelling reasons”. The Minister submitted that the Tribunal’s references to hardship in the present case reflected this approach and were framed in ways that did not betray any misconception or narrowing of the test but were simply responsive to the way in which the applicant’s claims had been presented to it.
Consideration of ground one
I am not persuaded that the Tribunal erred in the manner alleged by the applicant by applying the wrong test to the question of whether the Schedule 3 criteria should be waived. The Tribunal explicitly and correctly identified the test as whether it was satisfied that there were compelling reasons for not applying Schedule 3 criteria (refer [7]-[9] CB 569, [13] CB 570).
The Tribunal also identified, in a passage that has not been challenged by the applicant, the case law directed at how the expression “compelling reasons” should be construed (refer [14] CB 570). That paragraph emphasised the need for the identification of reasons or circumstances that are “sufficiently powerful” to lead a decision-maker to find that the criteria should not be applied.
The Tribunal stated that it had considered the Explanatory Statement and, in this context, acknowledged the reference in the Statement that the introduction of the “waiver” provision recognises “the hardship that could result if an unlawful non-citizen wishing to remain in Australia on spouse grounds was obliged to leave Australia and apply from overseas” ([33] CB 572-573).
That reference suggests two matters of significance to the disposition of this ground. The first, which is consistent with the decision of Choi, is the importance of hardship as a guiding consideration in the identification of compelling reasons. The second is the tacit acknowledgement that hardship is not an automatic consequence of visa refusal. Instead, it could arise (or result) in circumstances that include where a visa applicant is obliged to apply for the visa offshore.
The Tribunal’s reasons at [34] capture both sentiments and are consonant with the observations of Allsop CJ at [34] of Choi that:
…From a practical point of view, since the existence of a genuine relationship is already a requirement for a partner visa, one must show additional impetus for the waiver of the relevant Sch 3 criteria. This often means emphasising the hardship that would result (to the applicant, sponsor, or third parties) if the waiver is not granted. In Nagaki v Minister for Immigration & Anor [2016] FCCA 1070, when considering what constituted “compelling circumstances” in relation to the sponsor, the Circuit Court specifically looked at hardship suffered by the sponsor if the application were to be rejected and the extent, the importance of the ties the sponsor had to Australia, and the consequent hardship if the sponsor had to move offshore to be with the partner if the sponsorship were not approved…
The applicant’s case and submissions were directed at the hardship that would accrue to both herself, and to the sponsor, in the event that the applicant was forced to depart Australia. The Tribunal understood that these circumstances might generate the “additional impetus” and gave consideration to them at [35] to [57] (as they concerned the sponsor) and at [58] to [69] (as they concerned the applicant). While the applicant (in separate grounds) challenges the adequacy of aspects of this reasoning, these challenges are of a different character and do not alter the conclusion that I have reached as to the merit of ground one.
Ground two
By ground two the applicant contends that the Tribunal engaged in irrational reasoning or failed to consider a submission on the topic of the sponsor’s access to public housing.
It is common ground that the applicant’s representative identified as a compelling reason that if the sponsor was required to leave Australia for a sustained period to be with the applicant, he would lose access to both his disability pension and his public housing.
The applicant acknowledged that the Tribunal had recorded a finding that the applicant may be unable to move back into a public tenancy upon his return to Australia (at least not straightaway) but was critical of the Tribunal’s consideration of whether this circumstance would constitute “compelling reasons”. The impugned reasoning appears at [54] (CB 576):
The Tribunal has considered the evidence in front of it and the findings made above. It accepts that there will be some level of financial hardship from the parties having to relocate to Vietnam. Specifically, it accepts that the sponsor’s disability support pension would likely be taken away, and that he would not be entitled to public housing on his return although the latter would only have an impact on the parties when they return. Conversely, the Tribunal has also considered that the capacity for the parties to be able to manage financially would depend on the ability for the parties to be supported by people in Vietnam, including by the applicant’s parents. This is dealt with further below sufficed to say that the Tribunal is not satisfied that the parties would not be able to live with or near to, or otherwise receive support from, her parents based on the evidence in front of it.
The applicant submitted that this paragraph revealed that the Tribunal had put to one side entirely the impact on the sponsor of his loss of public housing on the basis that it would have traction only once the parties had returned to Australia. The Tribunal had focused on the time the sponsor would spend in Vietnam (and the attendant impact) and had introduced an artificial distinction that was not comprehended by the Regulations. The applicant submitted that the approach adopted by the Tribunal was therefore irrational and/or illogical.
The applicant made the further (but related) submission that the Tribunal had purported (also in [54]) to answer the hardship that would be faced by the loss of the sponsor’s pension and access to public housing, by a finding that the parties could manage financially while in Vietnam through the support of others. This was said to provide an additional example of an irrational approach to the Tribunal’s consideration of this issue.
The Minister’s submissions referred the Court to the test for illogicality or irrationality in its general articulation and in the particular context of an assessment of whether there were “compelling reasons”; in the decision of Plaintiff M64 v Minister for Immigration and Border Protection (2015) 258 CLR 173 at [56] it was described as involving “a virtually insuperable hurdle” reflecting “the broad and subjective evaluation required in the application of cl 202.222(2)” (whether there are compelling reasons for giving special consideration to granting the applicant a permanent visa).
The Minister submitted that while reasonable minds might differ as to whether the loss of future housing was a compelling reason to waive the Schedule 3 criteria, it was within the Tribunal’s review function to consider the submission and not be moved to find that it had this character. It was a matter for the Tribunal the weight it chose to assign to the consideration, including in recognition that it was a future, but not immediate, consequence of not waiving the Schedule 3 criteria.
As far as the applicant’s criticism regarding financial hardship was concerned (refer [49] above), the Minister submitted that this betrayed a misunderstanding of what the Tribunal was considering at [54]. The Tribunal was not seeking to “answer” the issues raised by the applicant about what would happen upon the parties’ return to Australia. The paragraph instead contained findings that were directed at two points in the future in two different countries (Vietnam and Australia) and what (if any) financial hardship might arise in these different locations.
Consideration of ground two
I am not persuaded that the Tribunal fell into error in its consideration of the public housing submission.
The Tribunal recorded a finding at [36] (CB 573) that the sponsor would probably need to give up his house in Australia and that this might mean that he was unable to move back into a public tenancy upon his return, at least not straightaway.
At [54] (the impugned reasoning), the Tribunal returned to matters that fell under the rubric of financial considerations. The Tribunal found that “there will be some level of financial hardship from the parties having to relocate to Vietnam”. That financial hardship reflected the loss of the sponsor’s disability support pension and the loss of his entitlement to public housing on return to Australia. The Tribunal noted (as was the case) that the loss of public housing (“the latter”) would only have an impact on the parties when they returned.
The Tribunal did not, as the applicant contends, put to one side as irrelevant these first-mentioned considerations. Nor is it evident from the Tribunal’s reasons that it apportioned these considerations less weight by virtue of them relating to circumstances in Australia. Instead, the Tribunal noted that by way of distinction (“conversely”) the ability of the applicant and the sponsor to manage financially in Vietnam would depend on the support of family members. The Tribunal implicitly was seeking to distinguish between government supports (in Australia) and familial supports (in Vietnam). This reasoning was not illogical nor irrational and was instead comprehended within the broad purview of the subjective evaluation required in an assessment of whether there were compelling reasons not to apply Schedule 3 criteria.
Ground three
The applicant contends by this ground that the Tribunal failed to consider her submissions regarding the involvement of her parents in her offending and her reluctance, as a result, to live with or near them or to have any significant interaction with them should she be required to return to Vietnam for visa processing.
It is common ground that a submission to this effect was made on the applicant’s behalf and that she presented evidence to the Tribunal that her family had put pressure on her to engage in offending in Australia to pay off debts, including gambling debts incurred by the applicant’s brother. This evidence included sentencing remarks made by the County Court judge who had presided over the applicant’s criminal plea.
The applicant submitted that the Tribunal did not squarely grapple with the submission that was before it as was revealed by:
First, the Tribunal dismissing the County Court’s “very clear finding” that the applicant’s offending had been driven by her family’s debts and engaging in “wild and unfounded speculation” that the County Court’s reference may not have extended to anyone but the applicant’s brother, who had a gambling problem.
Second, by failing to address the concern that the applicant in fact raised as was revealed by the Tribunal’s reasons at [61] (CB 578) whereby the Tribunal refused to accept that the applicant’s parents could be a “negative influence on her”, because they (the parents) could have reformed.
The applicant submitted that this last finding exposed a lack of engagement with her case and evidence that she did not want to live with or near her parents because of what she perceived to be their responsibility for her criminal offending. This case threw up two possible eventualities – either the applicant would not live with or near her parents and would have no support network in Vietnam, or she would be forced to rely on them, which she avowedly did not want to do, and which would cause the applicant emotional turmoil. The failure of the Tribunal to consider the applicant’s claim in this proper context was said to constitute a constructive failure to review. The applicant also characterised the approach adopted by the Tribunal to the role of the applicant’s parents in her offending as manifesting a “quest to disbelieve” which in turn involved an unreasonable approach to the review (referring to BNV18 v Minister for Home Affairs (No 2) [2019] FCA 378, [27]).
The Minister submitted that the Tribunal did in fact consider the various reasons put forward by the applicant for why she would not want to reconnect with her family but did not accept that she could not draw support from them. What the applicant either would do or could do was a matter that the Tribunal could take into account when considering the compelling force of the applicant’s reasons for the Schedule 3 waiver.
The Minister submitted that the Tribunal considered the applicant’s evidence of the negative influence of her family but was not prepared to accept that her parents would be a negative influence on her such that the parties could not live with or close to them. This involved a consideration and rejection of the applicant’s evidence rather than a failure to consider.
As far as the applicant referred to the Tribunal embarking upon a “quest to disbelieve”, the Minister submitted that the characterisation was inapt in circumstances where the Tribunal’s decision did not turn on an assessment of the applicant’s credit.
Consideration of ground three
The applicant’s evidence concerning her desire to distance herself from her parents appeared in her statement dated 3 June 2022 which was then reproduced in the written submissions provided to the Tribunal on 6 June 2022 (see CB 490). It read:
…As well, I cannot go back to Vietnam and stay with my own family. They were the main reason that I engaged in criminal conduct and I have learned that I need to maintain boundaries with them in our relationship so that I can put the past in the past. My brother had gambling debts and my family put pressure on me to engage in offending in Australia. I never ever want to reoffend. I know that I need to move forward in my life from my offending and I want to be a law abiding member of the Australian community. I know that going back to live with my own family is the wrong path and that my future is being a family with Kenny…
The first thing to observe is that while the applicant plainly did not wish to be reunited with her family this reflected a desire to dissociate herself from the pressure they had brought to bear on her to commit offences in Australia and the prospect that they might continue to have a negative influence on her if she was to return to Vietnam and live in proximity to them. However, it was not a feature of the applicant’s case that reunification with her family would create emotional turmoil, absent these other characteristics.
The Tribunal dealt with the applicant’s case as presented to it, including by considering the sentencing remarks made by the judge presiding in the applicant’s County Court trial. I do not accept that these sentencing remarks involved a “very clear finding” that the applicant’s offending had been driven by her family’s debts. Instead, the following passage (reproduced at [59] (CB 577) of the Tribunal’s reasons suggests that the sentencing judge maintained some doubt about the true position:
I do accept, relying here more on the recorded communications than anything said the record of interview, that there were others involved in this importation to whom you were subordinate, that you were in fear of them, and your involvement was under pressure from your own family and of the risk of arrest and all the more so, when the collection did not go as planned.
I accept, at least in part, the motivation for this offending had something to do with debts owed in Vietnam. As to these, there were some indications that they concerned your father’s illness and your brother’s gambling debts, although in the end, the situation is far from clear.
The Tribunal picked up on these doubts but nonetheless (as the Minister observed) engaged in a “what if I am wrong” style analysis evident at [61] (CB 578) by which the Tribunal proceeded on the assumption that the applicant’s parents had been involved in the applicant’s offending but found that there was no evidence to show that her parents’ behaviour was indicative of a wider pattern of offending or general bad behaviour. The Tribunal also took account of the sponsor’s evidence that he had visited the applicant’s family in Vietnam and that the applicant’s parents had “made me feel comfortable and like a part of their family” ([63] CB 578).
These findings and the Tribunal’s analysis did not betray a misapprehension of or failure to deal with the applicant’s claims. Ground three does not succeed.
Ground four
The applicant contends by this ground that the Tribunal recorded a finding that the applicant and the sponsor could receive support, including financial support, from the applicant’s family if they were forced to return to Vietnam and that this finding was not based on any positive evidence but instead reflected “the absence of any evidence to the contrary”.
The applicant submitted that the evidence that was before the Tribunal was her sworn evidence, corroborated by documentary evidence from her criminal trial, that the applicant’s family had been so destitute that her mother had pressured her daughter (then aged 19) to become involved in drug importation. On the other side of the equation, there was no evidence to support a finding that the applicant’s family had the capacity to provide accommodation or financial support. It was said – by reference to Minister for Immigration v SZMDS (2010) 240 CLR 611 at [135] – that there was no rational basis to find that the applicant’s family would or could provide such support and the finding was not open on the evidence.
The Minister in his submissions rejected the first premise of this ground, namely, that the Tribunal found that the applicant’s family would offer financial and practical support to the sponsor and the applicant if they returned to Vietnam.
The Minister submitted instead that the finding recorded by the Tribunal at [65] (CB 578) should be characterised as a finding that the Tribunal was not satisfied that the applicant and the sponsor would not be able to either live with or near, or otherwise receive support from, the applicant’s family while they were in Vietnam awaiting the outcome of the applicant’s offshore partner visa application. The Minister submitted that the Tribunal did not need positive evidence before deciding that it was not satisfied that compelling reasons existed to waive the Schedule 3 criteria.
The Minister made the further submission that the Tribunal’s finding regarding financial support was not as emphatic as the applicant’s submissions might otherwise suggest. The finding at [65] was that the support of family members “…may also mean that the parties are able to be supported financially”. Based on this finding (and others), the Tribunal was not satisfied that the applicant’s capacity to move to Vietnam and the hardship that may ensue was a compelling reason for waiving the Schedule 3 criteria. It could not therefore be said that the actual capacity of the applicant’s family to support the applicant and the sponsor was critical to the Tribunal’s dispositive reasoning.
As far as the “no evidence” ground was concerned, the Minister submitted that it could not be said that there was not a “skerrick” of evidence before the Tribunal when it was clear from [65] of the Tribunal’s reasons that the sponsor’s statement concerning his visit to Vietnam had informed and provided a factual foundation for the Tribunal’s finding that the applicant’s parents were supportive of the relationship between the applicant and the sponsor. The Minister submitted that this evidence was further capable of sustaining an inference that any such support might be financial in character.
Consideration of ground four
At the heart of the applicant’s challenge is [65] (CB 578) of the Tribunal’s reasons which reads:
Based on the evidence before it and on the findings made above, and in the absence of evidence to the contrary, the Tribunal is not satisfied that the parties would not be able to either live with or near, or otherwise receive support from, the applicant’s family (who would not include her brother) while they are in Vietnam awaiting the outcome of the applicant’s offshore partner visa application. It considers that having the support of family members would lessen the parties’ hardship where it does exist because it would provide much-needed stability for the sponsor in circumstances where he is moving away from his normal support structures and may also mean that the parties are able to be supported financially.
This paragraph is significant because although it (as the Minister submits) contains a double negative “is not satisfied” that the parties “would not be able” to receive support from family, it operates in its practical effect as containing a positive finding that the applicant and the sponsor would be in a position to receive support from the applicant’s family and that such support would be capable of ameliorating hardship of at least two kinds; the first being the hardship accruing to the sponsor through the loss of his “normal support structures” and the second, although more tentatively identified, being financial hardship.
Having regard to the place of this paragraph in the context of the Tribunal’s reasons as a whole, it is tolerably clear that the Tribunal’s finding that the applicant and the sponsor would have access to familial support was intended to offset its anterior findings that there would be some level of financial hardship from the parties having to relocate to Vietnam (refer [63] CB 578). The finding was therefore material to the conclusion that there were not compelling reasons to waive the Schedule 3 criteria and the disposition of the applicant’s review.
The significance of the paragraph and the finding of family support is also revealed by the manner in which it was deployed to discredit the report prepared by psychologist Dr Cook. The Tribunal was critical of the failure of Dr Cook to give adequate consideration to “the parties staying with or near, or otherwise receiving support from, the applicant’s parents while they are in Vietnam” ([48] CB 575). As a result, the Tribunal doubted the correctness of the opinions expressed by Dr Cook in his report and relied on them “in only a very limited” way ([55] CB 576). It was not satisfied that the challenges identified by Dr Cook would render the sponsor’s quality of life “significantly and adversely affected” or that any hardship would constitute compelling reasons ([55] CB 576-577).
The question then remains as to whether the finding of family support was available to the Tribunal on the evidence before it. I consider that it was not. The high point of the evidentiary case exposed by the Tribunal’s reasons was the passage from the sponsor’s statement concerning his visit to Vietnam and his experience of staying with the applicant’s parents. However, this statement said nothing about the capacity of the applicant’s parents to provide support in any tangible way, including through the provision of accommodation, food or funding of living expenses. Instead, I accept the submission of the applicant that the evidence on the topic of her parents’ financial position went entirely the other way.
Ground four is upheld.
Ground five
By ground five the applicant contends that the Tribunal failed to consider evidence about the sponsor’s friends in Australia.
The applicant submitted that the Tribunal had before it two witness statements – one from the sponsor’s friend, Pha Nguyen, and the other from the sponsor’s uncle, Lang Thanh Phan – which contained evidence that contradicted the finding recorded by the Tribunal at [56] (CB 577) that the sponsor “has no friends and no connections in life apart from the applicant and his aunt”.
The statutory declaration of Pha Nguyen contained the statement, “I have known Kenny for eight years. I got to know him through a mutual friend. Me and Kenny are still good friends and we meet up sometimes, for example to go out to eat”.[1]
[1] CB 351 [2].
The statutory declaration of Lang Thanh Plan contained the statement, “I would love to support Hien [the applicant] when she has a chance to have a future in Australia with Kenny. I am always willing to support them. When Hien is coming out [from prison/detention], I have told them that I am willing to support them. Whatever they need, I will do it for her”.[2]
[2] CB 518 [19].
The applicant submitted that in circumstances where there was no reference to these statements in that part of the Tribunal’s decision record where it had considered the sponsor’s connections in Australia, the obvious inference was that the statements were overlooked by the Tribunal.
The Minister took issue with the applicant’s interpretation of the Tribunal’s reasons. He submitted that in order for this ground to succeed, the applicant would need to demonstrate that the evidence of Pha Nugyen and the evidence of Lang Thanh Phan was overlooked and that it was of some importance having regard to its cogency and potential relevance to the Tribunal’s reasons.
The Minister submitted that this task was problematic in circumstances where the Tribunal’s finding at [56] was based on the sponsor’s self-reporting to Dr Cook (refer CB 507) and the applicant’s evidence at the hearing that he “is alone and does not have many friends”. The Tribunal evidently preferred the account given by the sponsor to Dr Cook. The choice of that evidence and the weight given to it by the Tribunal was a matter reserved to it as part of its merits review function.
An inference that the evidence of Pha Nugyen and Lang Thanh Phan was overlooked was also not easily reconciled with the fact that the Tribunal had made express reference to this evidence at [26] of its decision record, albeit in the different context of considering the social aspects of the parties’ relationship. The Minister submitted that it could be inferred from the absence of any direct engagement with the content of the evidence of Ms Nguyen and Mr Phan regarding the strength of their ties to the sponsor that their evidence was considered by the Tribunal but not expressly dealt with in that different context given it lacked central relevance to that discrete consideration.
Consideration of ground five
I am not persuaded that the Tribunal failed to consider the evidence of Ms Nguyen or Mr Phan.
Instead, a fair reading of the Tribunal’s written statement discloses that it was aware of the evidence of these two individuals and gave it explicit consideration in the context of considering the social aspects of the relationship between the applicant and the sponsor. Although the statement of Ms Nguyen spoke in terms of her friendship with the sponsor, I do not consider that this statement or the statement of Mr Phan, which was framed instead in terms of the provision of support to the couple, was evidence that possessed characteristics such that the failure of the Tribunal to refer to it at [63] meant that it had been overlooked or that if it had been overlooked, it produced jurisdictional consequences.
The Tribunal was entitled to evaluate the extent of the sponsor’s friendships and connections in Australia having regard to the sponsor’s own appraisal and account of such matters, including where these had been given at a time closely proximate to the date of the hearing and then decision.
CONCLUSION
As one of the applicant’s grounds has been successful, the decision of the Tribunal will be set aside and a writ of mandamus will issue. The Minister will be required to pay the applicant’s costs in a fixed amount.
I certify that the preceding ninety-four (94) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Symons. Associate:
Dated: 21 April 2023
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