Ly v Minister for Immigration

[2018] FCCA 409

FEDERAL CIRCUIT COURT OF AUSTRALIA

LY v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 409

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of prospective marriage visas – Tribunal noting the review applicant had not provided evidence of hotel stays with her intended spouse – hotel receipts subsequently provided – Tribunal giving little weight to the receipts – whether the authenticity of the receipts was an issue that should have been raised with the applicant considered – jurisdictional error established.

Legislation:

Migration Act 1958 (Cth), ss.357A, 359A, 360, 422B, 425

Migration Regulations 1994 (Cth)

Cases cited:

Minister for Immigration v CZBP [2014] FCAFC 105
Minister for Immigration v SZMOK [2009] FCAFC 83

SZBYR v Minister for Immigration [2007] HCA 26; (2007) 81 ALJR 1190

WAJR v Minister for Immigration (2004) 204 ALR 624

Applicant: MEI LY

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3645 of 2016

Judgment of: Judge Driver

Hearing date: 22 February 2018

Delivered at: Sydney

Delivered on: 19 March 2018

REPRESENTATION

Counsel for the Applicant: Mr D Hughes

Solicitors for the Applicant: D'Ambra Murphy Lawyers

Solicitors for the Respondents: Ms A Wong of Mills Oakley

ORDERS

1. A writ of certiorari shall issue removing the record of the Administrative Appeals Tribunal decision made on 14 November 2016 into this Court for the purpose of quashing it.

2. A writ of mandamus shall issue requiring the Administrative Appeals Tribunal to redetermine the review application before it according to law.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3645 of 2016

MEI LY

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

1. The applicant, Ms Ly, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 14 November 2016. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant prospective marriage visas to the visa applicants. Ms Ly was the review applicant before the Tribunal. There were four visa applicants, who were her intended spouse (the visa applicant) and three of his children.

2. The following statement of background facts is derived from the submissions of the parties.

3. The visa applicant (a citizen of Cambodia) and three of his children from a previous marriage applied offshore for prospective marriage (Temporary) (Subclass 300) visas on 7 April 2014 on the basis of his engagement to Ms Ly.[1]  Ms Ly provided various documentary evidence consisting of photographs,[2] statutory declarations[3] and a letter of support from a marriage celebrant.[4]

   [1] Court Book (CB) 1-41

   [2] CB 51-84

   [3] CB 89-90, 96-97

   [4] CB 95

4. The visa applicant had previously applied for a subclass 300 visa on 22 June 2010, sponsored by the same sponsor. That visa was refused on 3 February 2011 and the refusal was affirmed by the (then) Migration Review Tribunal (MRT) on 14 January 2013.[5]

   [5] CB 364, [10]

The delegate

1. On 2 January 2015, a delegate refused to grant the visas because the visa applicant did not satisfy clause 300.216 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations). That clause relevantly required that the delegate be satisfied that the parties genuinely intended to live together as spouses. “Spouse” is defined in s.5F of the Migration Act 1958 (Cth) (Migration Act) and provides that a person is the spouse of another where those two people are in a married relationship. In considering an application for a prospective marriage visa, the Tribunal may have regard to the considerations set out in regulation 1.15A(3) for spousal relationships.[6]

   [6] regulation 1.15A(4) of the Regulations

2. The delegate was not satisfied that the visa applicant and Ms Ly genuinely intended to live together as spouses.[7]

   [7] CB 120-130

The Tribunal

1. Ms Ly made an application for review to the Tribunal on 6 March 2015.[8]

   [8] CB 131-133

2. On 11 March 2016, the Tribunal invited Ms Ly to attend a hearing scheduled for 18 May 2016.[9] On 9 May 2016, Ms Ly provided further documentary evidence and a completed Response to Hearing Invitation form.[10]

   [9] CB 139-140

   [10] CB 149

3. Ms Ly, her representative, the visa applicant and witnesses attended a hearing before the Tribunal on 18 May 2016.[11] It is evident from the decision record that, during the hearing, the Tribunal enquired whether certain corroborating material existed. In particular, the Tribunal asked if hotel receipts existed to corroborate Ms Ly’s claims that she and the visa applicant had stayed together at a hotel. Ms Ly stated that she had the receipts.[12]

   [11] CB 246-249

   [12] see CB 369 [29], 370 [43]

4. After the hearing, on 26 May 2016, Ms Ly provided further documents relating to holidays that she and the visa applicant had taken,[13] including receipts for hotel accommodation, Vodafone records[14] and documents evidencing that the visa applicants had undertaken English courses.[15]

   [13] CB 261-270

   [14] CB 270-296

   [15] CB 298-300

5. On 24 August 2016, Ms Ly submitted telephone records for herself and the visa applicant showing “ongoing regular telephone contact this year”.[16] On 27 August 2016, Ms Ly submitted a money transfer receipt for herself evidencing money sent to the visa applicant on 17 July 2016.[17]

   [16] CB 307-315

   [17] CB 316-317

6. On 30 August 2016, the Tribunal sent a letter to Ms Ly inviting her to comment on or respond to information purportedly pursuant to s.359A of the Migration Act.[18]  No mention was made of the hotel receipts.  Ms Ly responded on 23 September 2016[19] together with further supporting documents.[20]

   [18] CB 318-322

   [19] CB 341-344

   [20] CB 346-359

7. On 14 November 2016, the Tribunal affirmed the decision under review.[21]

   [21] CB 363-385

8. The Tribunal accepted that Ms Ly had travelled to Cambodia a number of times since meeting the visa applicant in 2005, when the visa applicant drove Ms Ly and her mother around in his taxi. It also accepted that the visa applicant separated from his (then) partner in 2007[22] and after communications with Ms Ly in Australia, they were engaged on 28 February 2010, “almost three years after they had last met in person”.[23]  However, the Tribunal was not satisfied that the parties genuinely intended to live together as spouses.[24]

   [22] CB 365, [12]; CB 380, [103]

   [23] CB 365, [14]; CB 380, [103]

   [24] CB 380, [102], [105]

9. The Tribunal found it surprising that the parties had not married despite their claim that they intended to marry.  It did not accept Ms Ly’s explanation that they wanted to marry in Australia, where her family members were. The Tribunal noted the parties could marry in Cambodia and then marry in Australia so that Ms Ly’s family and friends could attend the ceremony. Given that the parties became engaged in February 2010, the Tribunal had concerns as to whether the parties genuinely intended to marry and live together as spouses.[25]

   [25] CB 380, [106]

10. The Tribunal also had “significant concerns” arising from inconsistences in the evidence of the parties about matters “they should know about.” It noted that although some of the inconsistencies related to the previous visa application, the Tribunal considered that they were relevant to the case before it. The Tribunal referred to the departmental interview (on 26 October 2010) for the previous subclass 300 visa application, where the visa applicant could not give accurate details about the ages of Ms Ly’s children and appeared to know little about her life in Australia.  It considered that it was reasonable to expect after “claimed conversations of many years” that the visa applicant would know a lot about Ms Ly’s life in Australia, given her claim that she and the visa applicant spoke nearly every day on the phone.[26]

    [26] CB 380, [107]

11. The Tribunal also found that there was significant inconsistency in the evidence as to how much money Ms Ly sent to the visa applicant every month and there was no documentary evidence to support the claim that Ms Ly was sending money “every one or two months” to the visa applicant.[27] The Tribunal did not accept the visa applicant’s explanation that he could not remember if Ms Ly had sent him money in the last 12 months, in light of Ms Ly’s evidence that she was sending him “$100 or $200 every month or second month” and did not accept that she was sending money to the visa applicant.[28] While the Tribunal took into account the evidence of a witness[29] that she took $500 USD to the visa applicant in April 2016 from Ms Ly, it found that there was no documentary evidence of this. Further, the Tribunal found that there was no evidence of the money being converted to US dollars or of money being withdrawn from Ms Ly’s bank account.  It did not accept that Ms Ly was supporting the visa applicant financially except to a minimal degree.[30]

    [27] CB 381, [108]

    [28] CB 381, [109]

    [29] Ms Simara Put

    [30] CB 381, [111]

12. The Tribunal found there was little evidence that the parties had pooled their finances. However, given that the parties lived in different countries, the Tribunal did not make “adverse findings” on this basis. Although Ms Ly provided the Tribunal with money transfer receipts after the hearing, the Tribunal had concerns about those receipts. The Tribunal observed that they appeared not to have been provided to the Minister’s Department and had been provided to the Tribunal after the hearing. It placed little weight on those documents and observed that there was no evidence of withdrawal of funds from Ms Ly’s bank account “about the time” the receipts for the money transfers were issued.[31] Although the Tribunal accepted that Ms Ly had sent medicine and perfume to the visa applicant, it was not satisfied that the financial aspects of the relationship were indicative of a genuine intention to live together as spouses when seen “in conjunction with all the evidence before the Tribunal”.[32]

    [31] CB 382, [112]

    [32] CB 384, [121]

13. The Tribunal also pointed to inconsistencies in the parties’ evidence given at the MRT hearing as to whether they lived together for two weeks after their engagement. The Tribunal was not satisfied that the parties lived together after the engagement ceremony.[33]  The Tribunal noted another “significant inconsistency” in the evidence as to where Ms Ly stayed during her visits to Cambodia in 2013 and 2014.[34] Despite the provision of hotel receipts, the Tribunal noted that these had only been provided to the Tribunal after the hearing. The Tribunal also observed that although they were dated different years, they appeared to have been in the same handwriting. Accordingly, the Tribunal had concerns about the genuineness of these receipts and placed little weight on them.[35]  

    [33] CB 382, [113]

    [34] CB 382, [114]

    [35] CB 182, [115]

14. The Tribunal pointed to another inconsistency in the parties’ evidence in relation to whether the visa applicant had met Ms Ly’s friends.[36]  The Tribunal observed there was no documentary evidence of communication “at all” between the parties until March 2013.[37]

    [36] CB 383, [116]-[117]

    [37] CB 383, [118]

15. The Tribunal found the evidence of the social aspects of the relationship given by witnesses, including Ms Ly’s mother, did not overcome its concern that the parties did not genuinely intend to live together as spouses.[38] Despite the evidence that the parties had attended functions, including a wedding and an engagement and dinners in Cambodia, due to significant concerns about the inception and development of the relationship between the visa applicant and Ms Ly, the Tribunal was not satisfied that the social aspects of the relationship were indicative of a genuine intention by the parties to live together as spouses when seen in conjunction with all the evidence before it.[39]

    [38] CB 384, [123]

    [39] CB 384, [124]

16. The Tribunal was not satisfied that the parties demonstrated a degree of companionship or emotional support which would be expected from parties who genuinely intended to live together as spouses, who had been engaged since February 2010 and who made a decision to marry in about 2009.[40] Having considered both individually and cumulatively “all the claims” of the parties, the Tribunal did not accept that the parties genuinely intended to live together as spouses.[41] The Tribunal found that neither at the time of application nor time of decision did the parties have a genuine intention to live together as spouses. Accordingly, the Tribunal concluded that the visa criteria in clauses 300.216 and 300.221 of the Regulations were not met.[42] The Tribunal also affirmed the decision in respect of the second, third and fourth visa applicants because they were not members of the family unit of a person who satisfied the primary criteria in clause 300.216.[43]

    [40] CB 384, [125]

    [41] CB 384, [126]

    [42] CB 384, [127]

    [43] CB 385, [128]

The present proceedings

1. These proceedings began with a judicial review application filed on 20 December 2016.  Ms Ly now relies upon an amended application handed up in court on 22 February 2018.  I granted leave for Ms Ly to file and rely upon that amended application, which contains the following ground of review:

   1.The Tribunal made a jurisdictional error in that it failed to provide procedural fairness to the applicant, or alternatively breached s 360 of the Migration Act 1958 (Cth).

   Particulars

   a.After the hearing, the applicant provided to the Tribunal receipts from Asia Hotel.

   b.The Tribunal had concerns about the genuineness of the receipts including because they appeared to be in the same handwriting, and so placed little weight on the receipts: at [115].

   c.Before making that finding, procedural fairness and s 360 required [the] Tribunal to raise its concerns about the genuineness of the receipts with the applicant. 

   d.The Tribunal did not do so, and so acted in breach of its obligation to provide procedural fairness. 

2. The only evidence I have before me is the court book filed on 15 February 2017. 

3. Both Ms Ly and the Minister filed written submissions and also made helpful oral submissions through their representatives at the trial of the matter on 22 February 2018.

Consideration

Applicant’s contentions

1. Like the delegate, the Tribunal was not satisfied that Ms Ly and the visa applicant genuinely intended to live together as spouses. 

2. The Tribunal had concerns about whether Ms Ly and the visa applicant had stayed together at a hotel as claimed. It was this concern, evidently, that had prompted the request for, and production of, the receipts. The Tribunal had concerns about the receipts. It stated at [115]:[44]

   Although the review applicant has provided hotel receipts from the Asia Hotel, they were only provided to the Tribunal after the hearing and although they are dated different years, they appear to be in the same handwriting.  They were not provided to the Department before the decision was made by the delegate and they were not provided to the Tribunal before the hearing.  The Tribunal has concerns about the genuineness of these receipts and places little weight on these receipts. 

   [44] CB 382

3. The Tribunal gave no notice of these concerns as to the genuineness of the receipts (indeed, the lack of any reference to the receipts in the issues letter could only encourage a view in Ms Ly that the Tribunal did not have concerns about the genuineness of the receipts). 

4. The Tribunal therefore is said to have breached the rules of procedural fairness by acting on those concerns without warning.

5. There is a well-established line of authority that if a Tribunal has concerns about documents provided after a hearing, procedural fairness requires that those concerns be raised with an applicant.  As French J stated in WAJR v Minister for Immigration:[45]

   [W]here as here, there is a clear implication in the Tribunal’s reasoning by reference to the appearance of the documents, that they were concocted for the purposes of the application, then on the authorities I have referred to, procedural fairness would require an opportunity be given to the appellant to comment.

   [45] (2004) 204 ALR 624 at [56]

6. His Honour went on to hold that, because the documents were provided after the hearing, s.422B did not place any limits on the rules of procedural fairness, or alternatively s.425 was breached. Either way, jurisdictional error was made out.[46]  A finding to similar effect was made by the Full Federal Court in Minister for Immigration v CZBP.[47]

   [46] WAJR at [57] – [59]

   [47] [2014] FCAFC 105 at [103] – [104]

7. These authorities are said to apply directly to the facts of this case. 

Minister’s submissions

1. The Minister initially resisted the application by calling in aid s.357A(1) of the Migration Act. That argument was, however, not pressed in the light of the fact that s.357A is in the same terms as s.422B which was expressly dealt with in WAJR at [57].

2. In oral argument, the solicitor for the Minister accepted that s.360 of the Migration Act may have some work to do following an oral hearing where a new issue arises and that, alternatively, to the extent that the Tribunal’s procedural code has no application, the general law principles of procedural fairness continue to reply. Nevertheless, the Minister contends that, on the facts of this case, there was no breach of s.360, nor any breach of the general law principles of procedural fairness.

3. It is clear that the Tribunal had formed the view that Ms Ly was an unreliable witness and had some concerns in relation to her evidence.[48] In light of the exchanges that took place between Ms Ly and the Tribunal at the hearing, the Minister contends that there was no failure on the part of the Tribunal to abide by the procedural code set out in Division 5, in not accepting the hotel receipts as corroborating any part of the visa applicant’s claim to genuinely intend to live with Ms Ly as spouses. It was not suggested by the Tribunal that any documents provided by the visa applicant might retrieve his position. Further, nothing was said by the Tribunal to indicate that it could not conclude the review adversely to the visa applicant without giving him a further opportunity to prove the authenticity of any documents he might provide. The Tribunal was under no obligation to “raise its concerns” about the authenticity with the visa applicant at a further hearing, or otherwise.  The same argument is said to apply to Ms Ly.

   [48] see CB 374, [72]

Resolution

1. I prefer Ms Ly’s submissions in this case. First, this is not a case where Ms Ly’s credibility was so gravely damaged prior to the submission of the documents in issue that they could not have made any difference to the outcome. The Tribunal made clear at its hearing that it was concerned that Ms Ly had not provided any documentary evidence of her asserted hotel stays in Cambodia[49]. The Tribunal’s concern was repeated several times.[50]

   [49] see CB 369, [29] and CB 370, [43]

   [50] see CB 374, [72]

2. At [87] the Tribunal states that it provided additional time for further evidence and submissions to be made.  The Tribunal notes at [89] that hotel receipts for the Asia hotel in Phnom Penh for various dates were provided.  The Tribunal further notes at [92] that it wrote to Ms Ly on 30 August 2016 to invite comment on what the Tribunal saw as inconsistencies in the evidence, including oral evidence given by Ms Ly and the visa applicant about the asserted hotel stays. 

3. The Tribunal dealt with the issue of the hotel stays as follows at [114]-[115]:[51]

   Another significant inconsistency involved statements by the visa applicant and the review applicant at the interview with the Department on 7 October 2014 at the Australian Embassy in Phnom Penh. The visa applicant stated that the review applicant stayed in a hotel during her visits in 2013 and 2014 because the visa applicant's house is very hot and he has only one fan so that the review applicant preferred to stay somewhere with air conditioning.  Although the review applicant confirmed this, she stated at the interview that the visa applicant stayed with her at the hotel.

   The Tribunal raised this with the review applicant at the hearing and she stated that the visa applicant lived with her at the Hotel Asia as husband and wife in 2012.  In 2013 the review applicant went back to Cambodia and she stayed at Hotel Asia and the visa applicant spent the whole time with her in that hotel as well. In 2014 she went back again and she stayed at the same place and the visa applicant stayed there with her. The Tribunal is satisfied that if the visa applicant had stayed with the review applicant at the hotel, it is reasonable to expect that he would give that answer at an interview. However, he did not. Although the review applicant has provided hotel receipts from the Asia Hotel, they were only provided to the Tribunal after the hearing and although they are dated different years, they appear to be in the same handwriting. They were not provided to the Department before the decision was made by the delegate and they were not provided to the Tribunal before the hearing. The Tribunal has concerns about the genuineness of these receipts and places little weight on these receipts.

   [51] CB 382

1. It is clear from the Tribunal’s reasons that it had a number of concerns about the asserted relationship between Ms Ly and the visa applicant. The question of whether Ms Ly and the visa applicant stayed together at a hotel in Cambodia on particular dates need not logically have assumed particular significance in view of the Tribunal’s other concerns. However, the Tribunal gave that issue particular significance. At [122] of its reasons, the Tribunal stated:[52]

   The Tribunal has considered the nature of the household. The review applicant and the visa applicant live in different countries and therefore do not share responsibility for housework on a day to day basis. The Tribunal is not satisfied that the visa applicant and the review applicant have stayed together at the hotels in Cambodia because of the inconsistencies in the evidence between the visa applicant and the review applicant about these claims and also because of the concerns the Tribunal has about the genuineness of the hotel receipts from Asia Hotel. The Tribunal finds that the evidence about the nature of the household is not indicative of a genuine intention of the visa applicant to live together as spouses with the review applicant when seen together with all the evidence before the Tribunal.

   [52] CB 384

2. By that reasoning, the Tribunal elevated to the status of important issues in the review, the inconsistencies in the evidence between Ms Ly and the visa applicant about the asserted hotel stays and the genuineness of the hotel receipts provided by Ms Ly. Having elevated those two issues to the status of important issues in the review, procedural fairness (either under s.360 or the general law) required the Tribunal to invite comment on those issues.

3. The Tribunal did invite comment in its letter dated 30 August 2016 on the issue of the inconsistent evidence. It appears from that letter that the Tribunal proceeded on the basis that the letter was required by reason of s.359A of the Migration Act. It would follow, by extension of that reasoning, that the Tribunal may have laboured under the misapprehension that nothing was required in relation to the authenticity of the hotel receipts because those were documents provided by Ms Ly to the Tribunal. However, it is in my view highly doubtful that s.359A of the Migration Act required the written invitation to comment in relation to the inconsistent oral evidence. That is because inconsistencies in evidence are not in themselves information for the purposes of s.359A.[53]

   [53] See SZBYR v Minister for Immigration [2007] HCA 26; (2007) 81 ALJR 1190 at [18]

4. In my opinion, either s.360 or the general law required the invitation to comment on the inconsistencies rather than s.359A. I am fortified in that view by the reasons of the Full Federal Court in Minister for Immigration v SZMOK[54] at [65].

   [54] [2009] FCAFC 83

5. In the present case, it was not a jurisdictional error by the Tribunal to apply the wrong statutory provision in sending the letter. The error arises because the Tribunal confined its invitation to comment too narrowly. The difficulty is that while procedural fairness required an invitation to comment or respond to the two issues identified by the Tribunal at [122] (the inconsistent oral evidence and the dubious hotel receipts), the Tribunal’s letter of 30 August 2016 only dealt with the first issue. It needed to deal with both. It did not. The failure of the Tribunal to raise with Ms Ly the issue of the veracity of the hotel receipts goes to jurisdiction, given the significance of that issue to the Tribunal. It follows that the Tribunal fell into jurisdictional error by failing to raise the issue with Ms Ly.

Conclusion

1. Ms Ly has succeeded in establishing that the decision of the Tribunal is affected by jurisdictional error.  She should receive the relief she seeks.

2. I will hear the parties as to costs.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  19 March 2018