Le v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 2169
•26 August 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
Le v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 2169
File number(s): SYG 2300 of 2017 Judgment of: JUDGE HUMPHREYS Date of judgment: 26 August 2021 Catchwords: MIGRATION – Administrative Appeals Tribunal – whether the Tribunal made a jurisdictional error in finding that the first applicant was not a cook at the IPho restaurant – whether jurisdictional error is made out – jurisdictional error made out – the application is upheld. Legislation: Migration Act 1958 (Cth) ss 359A,
Migration Regulations 1994 (Cth) sch 2 cl 856.213(c)
Cases cited: Abebe v Commonwealth of Australia [1999] 197 CLR 510
Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2013] 236 FCR 593
BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94
Le v Minister for Immigration & Anor [2016] FCA 1455
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AAM17 & Anor [2021] HCA 6
Minister for Immigration and Citizenship v Li [2013] 297 ALR 225
Minister for Immigration and Citizenship v SZMDS [2010] 240 CLR 611
Division: Division 2 First Instance Number of paragraphs: 29 Date of last submission/s: 26 August 2021 Date of hearing: 26 August 2021 Place: Parramatta Counsel for the Applicants: Mr Jones Counsel for the Respondents: Mr Johnson ORDERS
SYG2300 of 2017 BETWEEN: THI XUAN THAO LE
First Applicant
MINH TRUNG HO
Second Applicant
PHU SON HO
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE HUMPHREYS
DATE OF ORDER:
26 AUGUST 2021
THE COURT ORDERS THAT:
1.Leave is granted to rely on the Amended Application filed with the Court on 22 January 2020.
2.The name of the First Respondent be changed to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
3.The application is upheld.
4.An order that the decision of the Administrative Appeals Tribunal be quashed.
5.A writ of mandamus directed to the Administrative Appeals Tribunal requiring it to determine the applicant’s application according to law.
6.The first respondent is to pay the Applicant’s costs fixed in the amount of $7,467.00.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
(As Revised From Transcript)JUDGE HUMPHREYS
This is judgment in the matter of Thi Xuan Thao Le & Ors v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs. This judgment is being given orally following the decision of the High Court in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AAM17 & Anor [2021] HCA 6. Both parties have been advised that should they require a written copy of these reasons, they can request a copy from chambers, and one will be provided to them as a matter of urgency.
INTRODUCTION
The first applicant is a female citizen of Vietnam. The second and third applicants’ are members of her family unit, being her spouse and child. The first applicant was born in 1966. The first applicant first came to Australia from Vietnam in October 2007 as the holder of a Class UC (subclass 457) visa. On 17 October 2011, the first applicant applied for Employer Nomination (Residence) (Class BW) visa for herself and her family as secondary applicants’. On 27 June 2012, a delegate of the Minister for Immigration (“the delegate”) refused to grant the applicants’ their visas on the basis that the first applicant did not satisfy
clause 856.213(c) of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”). The applicant sought merits review at the then Migration Review Tribunal. The Migration Review Tribunal affirmed the delegate’s decision not to grant the first applicant her visa. The applicants’ then sought judicial review in this Court. That application was unsuccessful.
On 17 August 2016, the Federal Court of Australia remitted the matter back to the now Administrative Appeals Tribunal (“the Tribunal”) on the basis of jurisdictional error:
(see; Le v Minister for Immigration & Anor [2016] FCA 1455, per Rares J). The basis for the remittal related to an error in the manner in which the Tribunal dealt with material provided in support of the first applicant by her employer, Mr Vong. The Federal Court found that the Tribunal failed to take into account material contained in a document from Mr Vong labelled “Submissions” and incorrectly found that there was “no evidence” on particular matters. On 29 June 2017, a differently constituted Tribunal again confirmed the decision of the delegate to refuse the applicants’ their visas. The applicants’ now seek judicial review of the second Tribunal decision.
THE ADMINISTRATIVE APPEALS TRIBUNAL DECISION
Given the grounds of judicial review set out below and the discussion, it is not necessary to summarise the Tribunal decision in detail. The essential issue in the matter, was whether the first applicant was indeed the cook at the IPho restaurant in Canberra. The Tribunal made various adverse credit findings against the first applicant and the owner of the restaurant, based on inconsistent information on the restaurant’s website, and found that she was not the cook.
GROUNDS OF JUDICIAL REVIEW
The sole ground of judicial review relied upon, is contained in an Amended Initiating Application, for which leave was granted to rely upon, filed with the Court on 22 January 2020. It reads as follows:
Ground One
The Tribunal made a jurisdictional error in finding that the Applicant was not a cook at the IPho restaurant.
a.The Tribunal could not make a finding of law or fact for which there was no evident and intelligible justification (Minister for Immigration and Border Protection v SZVFW[20l8] HCA 30 at [10] and [82)) and which was material to the Authority's decision (Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421 at [45]);
b.Proper, genuine and realistic consideration required the Authority to engage in an active intellectual process directed towards the Applicant's case Minister for Immigration and Border Protection [20171 FCAFC 107; 252 FCR 352 at [45]; Minister for Home Affairs v Omar [2019] FCAFC 188 at [36]-[43].
c.The Tribunal was, with appropriate caution, entitled to rely upon inconsistency in assessing the credibility of the Applicant: AVQJ 5 v Minister for Immigration and Border Protection [2018] FCAFC 133 at [21]-[28];
d.The Tribunal was correct to the extent it regarded the truth of the claim of the Applicant to be the cook at the IPho restaurant as relevant to whether there were exceptional circumstances within the meaning of cl 856.213(c)(ii) of Sch 2 to the Migration Regulations 1994 (Cth);
e.The Tribunal found at paragraph 95 of its decision that the Applicant was not the cook at the IPho restaurant and Ms Vanessa Vong was the cook;
f.The Tribunal based this finding at paragraph 94 of its decision on the website for the IPho restaurant:
g.The Tribunal found at paragraph 89 of its decision that the contrary evidence of Mr Allen Vong and the Applicant should be rejected because Mr Vong claimed that the website did not reflect the truth.
h.The Tribunal provided no relevant justification for its finding. The mere fact that Mr Vong challenged the accuracy of the website was not a proper basis for concluding that Mr Vong and the Applicant lacked credibility. Further, it was not logical simultaneously to find the website to be true and to disbelieve Mr Vong and the Applicant because Mr Vong claimed the website was untrue.
THE APPLICANT’S SUBMISSIONS
Counsel for the applicants’ submitted that the critical point of the present case, is whether the first applicant satisfied cl 856(3)(c)(ii)(B) of Schedule 2 to the Regulations. In that, unless there were exceptional circumstances, the applicant needed to possess vocational English. For this purpose, the Tribunal needed to consider whether the first applicant was indeed a cook at the IPho restaurant in Canberra. At paragraph 81 of its decision, the Tribunal reasoned that the first applicant was not the cook at the restaurant, and that Vanessa, who was the wife of the Director/Nominator, Mr Vong, was. The Tribunal located for itself the website of the restaurant and relied on a particular statement contained within the website as to how Vanessa made the soup for the particular Vietnamese dish ‘Pho’.
The Tribunal put the contents of the website to the first applicant in accordance with
s 359A of the Migration Act 1958 (Cth) (“the Act”). Both the applicant and Mr Vong said that it was the first applicant, rather than Vanessa who did the cooking. Mr Vong gave evidence that the website did not reflect the truth. At paragraph 86 of its decision, the Tribunal was concerned that the name of the restaurant and therefore the website, was not provided to the Tribunal, and that the nominator had not intended the Tribunal to rely upon material contained in the website. The Tribunal found at paragraphs 87 through to 90 of its decision that the website was evidence that Vanessa, rather than the first applicant, was the cook at the restaurant. The Tribunal further found that Mr Vong did not wish the Tribunal to consider the website, because it indicates that Vanessa is the cook.
The Tribunal found that Mr Vong, as he indicated that the restaurant website did not reflect the truth, was not a credible witness, and his evidence could not be relied upon. The first applicant’s own evidence, also given the website, did not satisfy the Tribunal that she was the cook. The Tribunal found that other supporting evidence in favour of the first applicant did not overcome the Tribunal’s concerns about the credibility of Mr Vong and the applicant. As a result, the Tribunal found exceptional circumstances to be absent and
cl 856(3)(c)(ii)(B) of the Regulations not to be satisfied. On behalf of the first applicant, it was submitted that the finding of fact by the Tribunal is judicially reviewable for legal reasonableness if the finding is irrational, unreasonable or lacks an evident or intelligible justification. Further, the Tribunal was required to give proper consideration to the first applicant’s case in the sense of an active intellectual engagement with the same.
Reliance was placed on BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94 (“BDZ17”) at [45], where the following was said (citations omitted):
[45] In our view, however, these passages reveal a failure by the Tribunal to give a proper, genuine, and realistic consideration to the evidence of Mr C. In this respect, it is true that the High Court held in S20/2002 that it is not irrational (albeit not necessarily preferable) for the finder of fact to focus “first upon the case as it was put by the appellant”, before considering the alleged corroboration. However, this does not mean that the finder of fact can ignore the allegedly corroborative material and fail to consider it in an intellectually active way (WAIJ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 74 at [27] (Lee and Moore JJ); semble SZDGC at [23] (Finkelstein J)). For example, as in DAO16, a finding that a visa applicant’s evidence is not credible may not of itself provide a logical or rational basis on which to dismiss all of the corroborative evidence and, once the corroborative evidence is considered, it may at least raise a doubt about whether the whole of an applicant’s claims should in fact be rejected, thereby enlivening the obligation to consider the alternative scenario that the applicant’s claims might be correct.
Counsel for the applicants’ submitted that the Tribunal failed to observe these strictures. Firstly, the Tribunal has offered no reason why the website should be preferred to the evidence of Mr Vong or the first applicant. The Tribunal has accepted without apparent foundation, the website to be true. The Tribunal did not appear to have engaged with why the website should be accepted as true. Second, the Tribunal found Mr Vong not to be credible because the website was untrue. This is not logically compatible with the Tribunal’s earlier finding that the website was true. If Mr Vong is not to be believed in saying that the website was untrue, and the website has been accepted as true, then it is difficult to see how his credibility is fatally weakened by saying the same. The Tribunal had not engaged with the relationship between its findings as to the website in its conclusions as to credibility. Third, the Tribunal offered no reason for rejecting the corroborative material. The Tribunal provided no apparent basis for rejecting the evidence of the signatories that the first applicant was the cook at the restaurant. The Tribunal also did not find against the authenticity of the first applicant’s letter of employment as a cook for the nominator restaurant.
THE FIRST RESPONDENT’S SUBMISSIONS
Counsel for the first respondent submits that despite the broad statement of error contained within the ground of judicial review, this is in fact a number of sub-grounds, being:
(a) The finding was unreasonable: (see; particular (a) of the grounds of judicial review),
(b) The Tribunal did not give proper consideration to the applicant’s case in the sense of an active engagement with the same (see particular (b) of the grounds of judicial review), and,
(c) was based on the finding at paragraph 94 of the Tribunal’s decision relying upon the accuracy of the website, which it appears is contended was a finding not logically reached by the Tribunal in the light of its finding at paragraph 89, and the applicant’s and the sponsor’s evidence should be rejected because the sponsor said the website did not reflect the truth (see particulars (c) to (h) of the grounds of judicial review).
In addition, Counsel for the applicants’ submitted further that the Tribunal “gave no reasons for rejecting corroborative material”, namely the signatures provided by the first applicant in support of the claim to be the cook at the restaurant and the first applicant’s employment letter from the restaurant. The first applicant appears to suggest, by extracting the reference to BDZ17, that this contention falls within the contention made at particular (b). The first respondent does not accept this argument and contends that it is in fact a new ground, for which the applicants’ have not sought leave to advance. The applicants’ primary contention appears to be that the Tribunal’s findings at paragraph 89 and subsequent conclusion at paragraph 95 of its decision were made without a justification and reveal a failure to properly consider the applicants’ case.
The first applicant takes issues with the Tribunal’s findings that the first applicant and Mr Vong could not be believed and that the evidence that the first applicant was a cook at the restaurant and that Mr Vong was not a credible witness. In reaching its conclusion at paragraph 95, the Tribunal gave detailed reasons for its conclusion. In particular, the Tribunal gave consideration to the content of the restaurant’s website at paragraphs 81 and 82 of its decision, as well as the applicant’s statements about the website from Mr Vong to the extent that the website “did not reflect the truth” and was “not their intention for the website to be used by the member”. The Tribunal expressly considered which of the conflicting claims arising out of the evidence could be believed.
Ultimately, the Tribunal preferred the contents of the website and found that Vanessa, not the first applicant, was the cook at the restaurant. The Tribunal then found that the reason the sponsor urged the Tribunal not to consider the contents of the website was precisely because it was contrary to the evidence adduced on behalf of the first applicant in clearly indicating that his wife was the cook and making no mention whatsoever of the first applicant. On this basis, the Tribunal concluded that the applicant and the sponsor’s evidence could not be relied upon. It was submitted that the Tribunal’s process of considering and giving weight to this evidence was a matter within the jurisdiction of the Tribunal: (see; Abebe v Commonwealth of Australia [1999] 197 CLR 510 (“Abebe”) at [197]).
It was submitted that it cannot be said that the conclusion is attended by extreme illogicality such that a logical or rational decision-maker could not have come to the same conclusion: (see; Minister for Immigration and Citizenship v SZMDS [2010] 240 CLR 611 at [135]). Insofar as the first applicant contends that the Tribunal at paragraph 95 of its decision did not give “proper genuine and realistic consideration” to the case advanced by the first applicant, it is suggested that this invites the Court to slide into impermissible merits review: (see; Minister for Immigration and Border Protection v Maioha [2018] 267 FCR 643 at [135]). The applicants’ assertion is that the Tribunal gave no reason why the website should be preferred to the evidence of Mr Vong and the first applicant does not acknowledge the detailed consideration that the Tribunal gave to the issue. This included consideration of the evidence at paragraphs 46 to 50 and 63 to 64, of the Tribunal decision, the contents of the letter sent to the applicant extracted at paragraph 65 of the Tribunal decision, and the first applicant’s and the sponsor’s response to it at paragraphs 68 to 69, and its reasoning at paragraphs 86 to 88 of the decision record.
Further, the Tribunal’s credibility findings in relation to Mr Vong were open to it. They are based on inconsistencies between his evidence and the content of the website. Either the website was incorrect or Mr Vong’s evidence was incorrect. The two could not stand together. The Tribunal made a decision to prefer the website, and in doing so, conducted a logical assessment of the evidence and gave it proper, genuine and realistic consideration. In relation to the contention that the Tribunal gave no reasons for rejecting the corroborative material – that is, the specified signatures provided by the first applicant in support of a claim to be the cook – there are problems with the submission.
Firstly, the first applicant misrepresented what the Tribunal said at paragraph 90 of its decision. The Tribunal did not reject the evidence of the signatures provided by the first applicant. Rather, the Tribunal found the evidence of the signatures, which were originally gathered by the first applicant for the purposes of an application for ministerial intervention, were insufficient to overcome the Tribunal’s significant credibility concerns in relation to the claim that the applicant was the cook at the restaurant. The relative weight to be given to the signatures as compared to the material contained in the website, it was submitted, was a matter of weight that was open to be determined by the Tribunal in the way that it did.
In relation to the letter of employment, while the first respondent accepts that the Tribunal did not expressly refer to the document in its reasons, it was not bound to do so: (see; Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2013] 236 FCR 593 at [46]). That is because it was unnecessary for the Tribunal to make a finding about the authenticity of the letter of employment, because it was not in fact corroborative of the first applicant’s claims that exceptional circumstances existed. It is acknowledged that the Tribunal was required to deal with the apparently independent corroborative evidence in such a way as revealed a logical, rational or probative basis for any finding, express or implied, made in relation to that evidence. It was submitted that the evidentiary material here could not be described as corroborative.
The relevance of whether or not the applicant cooked in the restaurant’s kitchen
arose in the context of her attempt to satisfy the Tribunal there were exceptional
circumstances justifying a non-satisfaction of the English language requirements in
cl 856.213(c)(ii)(B) of the Regulations. The exceptional circumstances contended by the first applicant were, in broad terms, that her services were so vital to the operation of the restaurant as a business that its ability to compete, let alone succeed, were solely dependent on whether or not she was permitted to continue to work there. In this connection, the first applicant was repeatedly referred to, in the evidence given to the Tribunal, as the main cook. It was that claim that the Tribunal rejected at paragraph 89 to 95 of its decision, when it did not accept that the first applicant was the cook at the restaurant. That was consistent not only with the way the first applicant advanced the case before the Tribunal, but also with its acceptance that the first applicant did nevertheless work in the kitchen at the restaurant. Insofar as the letter of employment was evidence of the first applicant being a cook at the restaurant, it was not corroborative of the first applicant’s claim to be the main cook. The Tribunal did not err by expressly not referring to it.
CONSIDERATION
It appears to be common ground between the parties that the first applicant was employed in a capacity at the IPho restaurant in Canberra. The question for determination by the Tribunal was whether or not the first applicant met the criteria for the specific visa she was nominated for. It is also common ground between the parties that a requirement for the visa being sought was that the first applicant had to meet certain age and English language proficiency requirements unless exceptional circumstances applied: (see; cl 856.213(c)(ii)(B) of the Regulations). The first applicant did not meet the English language requirements. Thus, the issue for the Tribunal to determine, was whether or not there were exceptional circumstances to justify the visa being granted.
The sponsor claimed that the first applicant was the restaurant’s main cook, and that her cooking skills were essential for the viability of the restaurant. The Tribunal, by reference to the website of the restaurant, noted that the sponsor’s wife, Vanessa, was on the website and named as the cook, not the first applicant. The Tribunal then used this material to make a finding that the first applicant and her sponsor, Mr Vong, were not credible witnesses as to the claim that the first applicant was the cook, it should not accept their evidence and instead rely upon the material on the website. In so doing, it rejected corroborative material in relation to the signatories gained, and it also made no reference to the first applicant’s contract of employment, which specified that she was a cook.
At paragraph 91 of its decision, the Tribunal determined that while the first applicant worked at the restaurant IPho in the kitchen, she did not do so, or at any other restaurant of the nominator, as a cook or, the cook. The Tribunal found that the first applicant’s absence from the restaurant did not lead to a decrease in revenue when the first applicant was absent in Vietnam. It was on this basis that the Tribunal found there were not exceptional circumstances to justify a waiver of the English language requirements in the relevant clause of the Regulations. It is to be noted that this finding is totally different from the manner in which the case progressed to the Federal Court of Australia, previously. Rares J, at paragraph 2 in his decision which has been cited above, noted that the applicant was a cook by profession. At paragraph 3, His Honour noted that the previous Tribunal accepted cooks, at the relevant time, were a profession that was subject to a shortage of qualified persons, and it was on this basis that the first applicant first came to Australia. It seems to this Court that it is somewhat incongruous as the matter now proceeded that in a reconsideration by the Tribunal has resulted in a finding that the first applicant was in fact not employed as a cook.
The Tribunal’s reasoning is that by reference to the restaurant’s website, which stated that Vanessa was the cook, it is not possible that the first applicant was also a cook, but was employed in some other capacity. The Tribunal does not at any point appear to have considered the possibility that the first applicant could also have been employed as a cook at the restaurant, even if Vanessa was the cook, as was claimed on the website. The reasoning of the Tribunal appears to be completely binary, in that having found one factual matter – that Vanessa was the cook – that only one subsequent conclusion was subsequently open, that being that the first applicant was not a cook. At no point did the Tribunal either mention the contract of employment, which clearly indicated that the first applicant was employed as a cook.
Legal unreasonableness, of which irrationality or illogicality are subsets, include a decision which lacks an evident or intelligible justification: (see; Minister for Immigration and Citizenship v Li [2013] 297 ALR 225 (“Li”) at [76]). The test for unreasonableness is stringent and will only arise in rare cases. Unreasonableness is not a means for challenging a decision on the basis that the Court disagrees with the consideration of the matters or the evaluative judgments made by the decision-maker: (see; Li at [30] and [113]). As pointed out by the first respondent, the Court cannot engage in merits review: (see; Abebe) and must avoid the danger of becoming enmeshed in what becomes a de facto merits review.
In the Court’s view, the Tribunal’s reasoning process is flawed in that it is illogical or irrational and does not demonstrate an active intellectual engagement with the first applicant’s claims. The first applicant has at all times claimed to be a cook. The contract of employment specified that the first applicant was a cook. The first applicant’s employer says she is a cook and of immense value to the restaurant’s viability. The Tribunal, in the Court’s view, failed to consider the possibility, even accepting the finding in relation to Vanessa being the cook at the restaurant that the applicant could not also be a cook at the restaurant and a person who was of value to the viability of the restaurant. The Tribunal did not consider the possibility that there could be more than one cook at the restaurant.
The Tribunal’s reasoning also seems to assume that it must make a finding, if it found that the website was true, that therefore, Mr Vong had to be not credible as a witness. It was put to the Court that it was appropriate to consider whether or not the restaurant website was in fact puffery. The reference by the Tribunal to the material on the website, if it accepted Mr Vong’s claims that it was in fact untrue, would constitute a breach of the Australian Consumer Code, is not really a matter in the Court’s view that is such that could be determinative of whether or not the subsequent credibility of Mr Vong could be found not to be the case – that is, that his evidence was untrue. It was put to the Court that it was not appropriate to go from a finding that the website was true such that Mr Vong and the applicant’s evidence, together with the corroborative evidence contained within the signatories and the contract of employment, could be dismissed. In the Court’s view, it was a matter that needed to be considered, that being, whether or not the website was in fact untrue.
The Court is satisfied that the error is one which could have resulted in a different outcome. If it was determined that the first applicant was a cook at the restaurant, even if she was not the main cook, bearing in mind there was always the possibility that there could be more than one cook at the restaurant, and one indeed could even be a specialty at a restaurant in the way that they cook, as compared to other matters, the Court is satisfied it could have resulted in a different outcome. If the first applicant was a cook, then whether or not there were exceptional circumstances such that the English language requirement should be waived, was a matter that had to be considered.
CONCLUSION
Accordingly, the application is upheld.
Written reasons for judgment requested on 24 September 2021.
I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys. Dated: 1 October 2021
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