Ly v Minister for Immigration and Anor

[2017] FCCA 2712

FEDERAL CIRCUIT COURT OF AUSTRALIA

LY v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2712

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugee Division) – Prospective Marriage (Temporary) (Class TO) visa – whether the Tribunal’s decision was unreasonable – whether the Tribunal failed to exercise its jurisdiction – whether the Tribunal breached s 360 of the Act – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss5F, 359A, 360, 476.

Migration Regulations 1994, reg.1.15A, sch.2, cls.300.216, 300.221.

Cases cited:

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152

Applicant: CHAN SIPHO LY

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1927 of 2017

Judgment of: Judge Street

Hearing date: 7 November 2017

Date of Last Submission: 7 November 2017

Delivered at: Sydney

Delivered on: 7 November 2017

REPRESENTATION

Counsel for the Applicant: Mr L Karp

Solicitors for the Applicant: D'Ambra Murphy Lawyers

Counsel for the Respondents: Mr T Reilly

Solicitors for the Respondents: Mills Oakley Lawyers

ORDERS

1. Leave to the applicant to rely upon the amended application annexed to the submissions filed on 24 October 2017 and the Court dispenses with the need for the filing of an electronic copy.

2. The amended application is dismissed.

3. The applicant pay the first respondent’s costs fixed in the amount of $5,400.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1927 of 2017

CHAN SIPHO LY

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 16 May 2017 affirming a decision of the delegate not to grant the visa applicant a Prospective Marriage (Temporary) (Class TO) Visa.

2. The visa applicant is a citizen of Cambodia born in 1983, and the sponsor was born in Phnom Penh in 1965. The visa applicant said that he had been a monk between 2000 and 2010 and was employed in the Crown Casino in Cambodia. The sponsor cares for her elder mother and also has two sons. The couple claim they first spoke on 26 February 2014 and committed to shared lives on 28 September 2014 after the sponsor had travelled to Cambodia and met the visa applicant in person.

The delegate’s decision

1. The delegate, on 26 May 2016, found the visa applicant failed to meet the criteria for the grant of the visa. The delegate identified the requirements in respect of cl 300.216 of Schedule 2 to the Migration Regulations 1994 (“the Regulations”) and, in particular, that the parties generally intend to live together as spouses. The delegate set out the definition of “spouse” in s 5F and the requirements of reg 1.15A.

2. In relation to the financial aspects of the relationship, the delegate made reference to particular money transfers not corresponding with particular events, in respect of which it was alleged money was being sent. The delegate made observations that inconsistent information had been provided and had concerns that the transfers were made intentionally to strengthen the visa application rather than genuine financial ties existing.

3. The delegate found the lack of future financial planning or discussions indicates that the visa applicant and the sponsor are not committed to a genuine relationship and that the visa applicant and sponsor do not see this as a long-term relationship that would exist long after the intended migration outcome.

4. The delegate referred to the nature of the household and was not satisfied other than at a superficial level that the visa applicant was generally aware of the sponsor’s living arrangements or daily life. The delegate was not satisfied that the visa applicant and the sponsor are in a committed, genuine relationship or see the relationship as a long-term one.

5. Regarding the social aspects of the relationship, the delegate was not satisfied that the visa applicant and the sponsor generally present themselves as a couple or are seen as a couple by friends, family and the wider community.

6. In relation to the nature of the commitment to each other, the delegate referred to the limited time in relation to the relationship and not being satisfied that there has been established a true, committed relationship as could be reasonably expected from a genuine and ongoing relationship. The delegate found the account of the inception and development by the visa applicant and sponsor of the relationship was characteristic of a contrived relationship that has been entered into for the purpose of achieving residency in Australia.

7. The delegate was not satisfied that the visa applicant is or intends to be in a genuinely continuing relationship. The delegate was not satisfied that the visa applicant and sponsor genuinely intend to live together as spouses. The delegate found the visa applicant failed to meet the criteria in cl 300.216 of Schedule 2.

The Tribunal’s Decision

1. The sponsor, being the review applicant applied for review on 29 June 2016. The sponsor was invited to attend a hearing by letter dated 8 February 2017 to be held on 28 March 2017. The sponsor appeared on that date to give evidence and the visa applicant gave evidence by telephone and the visa applicant was represented by his migration agent at the hearing.

Invitation to comment and respond

1. Following the hearing the sponsor was invited to comment in relation to certain information. Extension of time was given in relation to that opportunity to comment on 19 April 2017 providing an opportunity to respond and comment by 3 May 2017. On 28 April 2017, a response was provided, together with further statutory declarations and other material.

2. The Tribunal in its reasons identified the relevant issue as to whether or not the visa applicant and sponsor genuinely intended to marry and live together as spouses at the time of application and at the time of the Tribunal’s decision.

3. The Tribunal identified the outcome before the delegate and what occurred in relation to the hearing and the evidence being taken by the Tribunal from the visa applicant by telephone. The Tribunal summarised the background of the visa applicant and the sponsor. The Tribunal found the sponsor’s evidence vague, repetitive, hesitant and evasive. The Tribunal found many of her answers to be rehearsed. The Tribunal identified, taking into account her limited education and nerves, but did not consider the sponsor to be a credible witness.

4. The Tribunal made reference to the parties’ oral evidence being generally consistent but there were a number of discrepancies at the hearing. The Tribunal referred to the sending of a s 359A letter and the response that was received. In that regard, the Tribunal referred to the assertion that the responses during the hearing were consistent and that the visa applicant was aware of the sponsor’s personal history.

5. The other matters raised in the letter are also summarised by the Tribunal in relation to the response. The Tribunal referred to the statutory declaration of the sponsor seeking to explain the discrepancy as to the visa applicant’s knowledge of the sponsor’s time spent at a refugee camp. The Tribunal did not accept the response regarding the sponsor’s personal history adequately explains the discrepancy. The Tribunal found, despite the passage of time, the fact that the sponsor has spent three years in a Thai refugee camp before migrating to Australia is something that the Tribunal would have expected the parties to have discussed because of their common cultural background.

6. The visa applicant told the Tribunal that he had not asked the sponsor the details about her time at the refugee camp. The sponsor stated in her statutory declaration that she had told the visa applicant about it and the Tribunal placed weight on the inconsistency in the parties’ oral evidence given the importance of that information.

7. The Tribunal is not persuaded that the sponsor would fail to mention to the visa applicant that she had discussed the chance of her falling pregnant with her doctor, even if the question was raised with her doctor in passing. The Tribunal made reference to the parties stating they intended to have children together, and the Tribunal would have expected them to have openly discussed the issue due to the sponsor’s age.

8. The Tribunal did not accept the response regarding the parties’ use of condoms or that the sponsor could have simply forgotten that the visa applicant used condoms as claimed. The Tribunal placed weight on that discrepancy and considers that the parties were not being open about their living arrangements in Cambodia.

9. The Tribunal identified the critical issue in the present case was cl 300.216 as to whether at the time of application the parties intend to live together as spouses. The Tribunal made reference also to the requirements of s 5F and reg 1.15A.

10. The Tribunal made reference to the evidence given by the parties about living together for six weeks in Cambodia since they formed the relationship, and that they gave consistent evidence that they spent the first night in a hotel in Phnom Penh. The Tribunal referred to the sponsor’s younger son accompanying her on that trip to Cambodia and it was asserted that he slept in a separate room with the visa applicant’s relatives.

11. The Tribunal made reference to the sponsor’s son’s statutory declaration supporting those assertions. The Tribunal was not persuaded that the sponsor’s then 14 year old son would actively encourage his mother to sleep in a separate hotel room with a man they had just met in person for the first time, as claimed by the sponsor. The Tribunal did not accept that the sponsor’s son would be comfortable sleeping in a room with people that he had never previously met in a foreign city. The Tribunal made reference to the visa applicant’s oral evidence at the hearing that the sponsor’s younger son was 17 years old when he visited Cambodia, when, in fact, he was just 14.

12. The Tribunal made reference to the visa applicant’s assertion that he had become confused at the hearing. The Tribunal found that it would have expected the visa applicant to have remembered the age of the sponsor’s younger son in 2014, given it was the first time they had met and he spent a month with the sponsor’s son in Cambodia during that trip.

13. The Tribunal found, given the discrepancy in the oral evidence regarding the use of contraception during periods of cohabitation, the Tribunal was not prepared to accept that the visa applicant and sponsor shared a room as husband and wife in Cambodia as asserted by the parties.

14. The Tribunal was not persuaded that the parties have established a joint household due to the limited periods involved. The Tribunal identified concerns about the inception of the parties’ relationship and the decision to marry after spending so little time in each other’s company. The Tribunal found there was limited evidence to support the relationship is recognised in Australia beyond the sponsor’s sister and youngest son. The Tribunal was not persuaded that the parties plan to have children together after the grant of the visa was sincere, given the sponsor’s age and their limited communication about the issue.

15. The Tribunal found that the visa applicant demonstrated little knowledge about the sponsor’s relationship with her children’s father or her personal history before she came to Australia. The Tribunal was not prepared to accept that the sponsor was unaware of the name of her former partner when she completed the application. The Tribunal made reference to the sponsor’s younger son in a statutory declaration identifying that he did not know his father’s name. The Tribunal found this unconvincing in the context of the other evidence before the Tribunal.

16. The Tribunal made reference to taking into account the statutory declarations from the sponsor’s son and sister, but found that that evidence did not outweigh the other evidence before the Tribunal. The Tribunal found there was little independent evidence that the sponsor and the visa applicant provide each other with companionship and emotional support as might be expected of a couple in a prospective spousal relationship.

17. The Tribunal was not satisfied on the basis of the evidence before it that at the time of application, or at the time of the decision, the sponsor and the visa applicant genuinely intended to live together as spouses. The Tribunal found that the visa applicant does not meet the criteria under cl 300.216 or cl 300.221, and affirmed the decision under review.

Proceedings before this Court

Grounds in the application

1. The grounds in the amended application are as follows.

   1. The decision was legally unreasonable.

   Particulars

   (a) The Tribunal's lack of satisfaction that the couple genuinely intended to live together was largely based on cultural assumptions, unsupported by probative evidence, those findings being;

   (i) That many of the applicant's answers at hearing were rehearsed.

   (ii) That the Tribunal expected the applicant to have mentioned to her visa applicant that she had a brief, passing conversation with her doctor about her fertility.

   (iii) The rejection of the applicant's evidence that her 14 year old son would encourage the applicant to sleep in a room with a man she had just met in person, or that he would be comfortable sleeping in a room with people he had not previously met in a foreign city.

   (b) The Tribunal failed to have proper regard to the evidence, as follows:

   (i) The Tribunal found an inconsistency, at paragraph 20 of its reasons for decision, between evidence given by the visa applicant that he had not asked the applicant for details of her time in a refugee camp, and her evidence that she had told him briefly about it. There was no inconsistency.

   (ii) The finding that the visa applicant did not know the age of the applicant's younger son when he visited Cambodia in 2014.

   (c) The Tribunal drew inferences, adverse to the applicant on matters irrelevant to the application, being:

   (i) That there was a lack of mention of Ms Ly's former partner in her documentation.

   (ii) That Stephen Ly gave evidence that he did not know his father's name.

   (d) The Tribunal found at paragraph 43 of its decision that there was. “... little independent evidence that Mrs Ly and the visa applicant provide each other with companionship and emotional support such as might be expected of a couple in a prospective spousal relationship”, whereas, given the fact that the parties lived in different countries the evidence of members of the applicant's family was all that could reasonably be expected.

   2. The Tribunal failed to complete the exercise of its jurisdiction.

   Particulars

   (a) Failure to make enquiries of Stephen Ly as to whether he said to his mother that she should stay in a separate room with the visa applicant after he and his mother (the applicant) had just arrived in Cambodia.

   3. The Tribunal acted in breach of s. 360(1) of the Migration Act.

   Particulars

   (a) Failure to raise with the applicant at hearing or in writing, that it may not accept her evidence that her son Stephen said that she should stay in a separate room with the visa applicant after he and his mother (the applicant) had just arrived in Cambodia.

Consideration

Ground 1

1. In relation to Ground 1, Mr Karp of counsel took the Court to the Tribunal’s reasons in respect of each of the matters complained of in respect of legal unreasonableness in respect of the adverse credibility findings. Mr Karp also took the Court to the transcript. The adverse credibility findings by the Tribunal were open on the material before the Tribunal for the reasons given by the Tribunal. The adverse credibility findings cannot be said to lack an evident and intelligible justification.

2. It was open to the Tribunal to take into account and make a finding in relation to answers being rehearsed. It was open to the Tribunal to take into account the inconsistency in relation to fertility and contraception. It was open to the Tribunal to take into account the extraordinary proposition that a 14 year old son would tell the mother to sleep with a stranger on the first night in a foreign city.

3. It was open to the Tribunal to take into account the inconsistency in relation to the visa applicant’s knowledge of the sponsor in respect of her time in a refugee camp. I reject the submission that there was no inconsistency in that regard. It was also open to the Tribunal to take into account the visa applicant’s answer in relation to the age of the son at the time of the visit to Cambodia. I do not accept that the adverse findings were trivial or insignificant.

4. It was open to the Tribunal to take into account, in relation to the credit of the sponsor, the lack of mention of a former partner’s name in the documentation and it was in the context of the assessment of the credit of the sponsor that reference was made to the son’s statutory declaration and the Tribunal found that explanation unconvincing. That finding was open.

5. It was also open to the Tribunal to find that there was little independent evidence that the parties provide each other with companionship and emotional support. No jurisdictional error as alleged in Ground 1 is made out.

Ground 2

1. In relation to Ground 2, Mr Karp of counsel formally abandoned paragraph (b). In respect of paragraph (a), Mr Karp submitted that inquiry could have been made of the son as an easily ascertainable critical fact as to whether or not the son invited his mother to sleep with a stranger on the first night.

2. Whilst I accept that an easily ascertainable and critical fact does not have to be an incontrovertible fact, the submissions of Mr Karp rise no higher than identifying that there is other evidence that could be obtained. I do not accept that the son’s evidence permitted the Tribunal to easily ascertain what was said by the son on the first night to the stranger in the foreign city in respect of his mother at the age of 14.

3. There was no failure by the Tribunal to complete its jurisdictional exercise. On the face of the material before the Court, the Tribunal complied with its statutory obligations in the conduct of the review. No jurisdictional error as alleged in Ground 2 is made out.

Ground 3

1. In relation to Ground 3, Mr Karp sought to argue that the present case is one falling within the principles in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 and that the issue in respect of the suggestion that the sponsor’s son told her to sleep with the visa applicant on the first night is not squarely raised as a credibility issue for the visa applicant.

2. The Transcript does not support that assertion. The repetition of the question by the Tribunal clearly would raise to any reasonable person that the Tribunal was exploring the applicant’s credit. Further, SZBEL is distinguishable in the present case, given the adverse findings by the delegate in the delegate’s decision, which made reference to the parties presenting material supportive of a contrived relationship.

3. The transcript supports the sponsor and the visa applicant’s credit was raised and explored by the Tribunal at the hearing. Further, the response to the s 359A letter clearly identified that it was understood that there were inconsistency and credibility concerns raised by the Tribunal in respect of the sponsor.

4. There was no breach of s 360(1) of the Act. No jurisdictional error, as alleged in Ground 3, is made out.

Conclusion

1. The amended application is dismissed.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 16 November 2017