Nguyen v Minister for Home Affairs

[2018] FCCA 3866

FEDERAL CIRCUIT COURT OF AUSTRALIA

NGUYEN v MINISTER FOR HOME AFFAIRS & ANOR [2018] FCCA 3866

Catchwords:
MIGRATION – Application for spousal visa – whether genuine spousal relationship existed – adverse credibility findings made – application for review dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5, 361(3)

Migration Regulations 1994, reg.1.15A

Cases cited:

He v Minister for Immigration and Border Protection [2017] FCAFC 206
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Citizenship v SZMDS [2010] 240 CLR 611
Minister for Immigration and Multicultural and Indigenous Affairs v Maltsin [2005] 88 ALR

Applicant: DAI LE NGUYEN

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 492 of 2018

Judgment of: Judge Egan

Hearing date: 6 December 2018

Date of Last Submission: 6 December 2018

Delivered at: Brisbane

Delivered on: 6 December 2018

REPRESENTATION

Counsel for the Applicant: Mr Boccabella

Solicitors for the Applicant: H&N Lawyers

Counsel for the Respondents: Ms Hoiberg

Solicitors for the Respondents: Clayton Utz

THE COURT ORDERS ON A FINAL BASIS:

1. That the application for review filed on 17 May 2018 be dismissed.

2. That the applicant pay the First Respondent’s costs fixed in the amount of $7,467.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 492 of 2018

DAI LE NGUYEN

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant was born in Vietnam and was 27 years old at the time of the handing down of the Administrative Appeals Tribunal’s (“the Tribunal”) decision on 16 April 2018.  The applicant’s sponsor was also born in Vietnam but was 10 years older than the applicant at the time of the decision.  The sponsor had lived in Australia since 1992, having arrived in the country as a refugee.  At all relevant times, she was an Australian citizen.  She had two children born from a previous relationship.  The children were respectively born in 2001 and 2005.  The applicant first arrived in Australia in 2013 on a student visa.

2. His participation in study for the degree of sports management ceased after one semester in 2014 (see [9] of reasons).  It was asserted on behalf of the applicant that the parties had met in March 2014 through family friendships.  There is some dispute as to the time when they commenced to live together.  The applicant suggested that they commenced living together in August 2014, whereas his wife stated that the applicant only moved into her house after their Vietnamese wedding ceremony had been conducted in December 2014.

3. The parties were married in accordance with Australian law on 1 January 2015.  The applicant made a partner visa application on 21 May 2015.  On 13 December 2016, a delegate of the first respondent refused the applicant’s visa application.  On 3 January 2017, the applicant applied to the Tribunal for a review of the delegate’s decision.  On 30 January 2018, the Tribunal wrote to the applicant requesting provision of further information to support his claims that he and his partner were in a genuine spousal or de facto relationship.

4. The applicant provided a written submission and supporting material on 12 February 2018. Two further statutory declarations from supporting witnesses were provided on 8 March 2018. The hearing before the Tribunal took place on 29 March 2018. The applicant was accompanied by a solicitor at the time of the hearing. On 16 April 2018, the Tribunal affirmed the decision of the delegate to refuse the visa. On 17 May 2018, an application for review of the Tribunal’s decision was filed on behalf of the applicant.

5. The grounds for review are set out in that application and have been addressed in detail in each of the applicant’s and first respondent’s written and oral submissions. 

6. Regulation 1.15A of the Migration Regulations 1994 (Cth) (“the Regulations”) sets out the arrangements which must be considered for the purposes of section 5F(3) of the Migration Act 1958 (Cth) (“the Act”). Section 5F deals with the meaning of the term “spouse” as well as what constitutes a “married relationship”. Regulation 1.15A of the Regulations provides as follows:

   (1) For subsection 5F(3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5F(2)(a), (b), (c) and (d) of the Act exist.

   (2)  If the Minister is considering an application for:

   (a)  a Partner (Migrant) (Class BC) visa; or

   (b)  a Partner (Provisional) (Class UF) visa; or

   (c)  a Partner (Residence) (Class BS) visa; or

   (d)  a Partner (Temporary) (Class UK) visa;

   the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).

   (3)  The matters for subregulation (2) are:

   (a)  the financial aspects of the relationship, including:

   (i)  any joint ownership of real estate or other major assets; and

   (ii)  any joint liabilities; and

   (iii)  the extent of any pooling of financial resources, especially in relation to major financial commitments; and

   (iv)  whether one person in the relationship owes any legal obligation in respect of the other; and

   (v)  the basis of any sharing of day‑to‑day household expenses; and

   (b)  the nature of the household, including:

   (i)  any joint responsibility for the care and support of children; and

   (ii)  the living arrangements of the persons; and

   (iii)  any sharing of the responsibility for housework; and

   (c)  the social aspects of the relationship, including:

   (i)  whether the persons represent themselves to other people as being married to each other; and

   (ii)  the opinion of the persons’ friends and acquaintances about the nature of the relationship; and

   (iii)  any basis on which the persons plan and undertake joint social activities; and

   (d)  the nature of the persons’ commitment to each other, including:

   (i)  the duration of the relationship; and

   (ii)  the length of time during which the persons have lived together; and

   (iii)  the degree of companionship and emotional support that the persons draw from each other; and

   (iv)  whether the persons see the relationship as a long‑term one.

   (4)  If the Minister is considering an application for a visa of a class other than a class mentioned in subregulation (2), the Minister may consider any of the circumstances mentioned in subregulation (3).

7. The issue before the Tribunal was to determine whether the applicant and the applicant’s wife were in a genuine spousal relationship as at the date of the Tribunal’s decision. In that regard, the Tribunal was satisfied that the applicant and his wife were validly married. It then went on to consider the matters required to be considered pursuant to regulation 1.15A of the Regulations. At [25] of the reasons, the Tribunal found the applicant was evasive and opaque when responding to questions about his financial situation and arrangements.

8. The Tribunal had the benefit of seeing and assessing the applicant during the course of the hearing.  The Tribunal found that the applicant’s wife had maintained her own separate financial arrangements in large part, notwithstanding that the parties had a joint bank account, as demonstrated in the Westpac statements which appeared in the Court book at pages 84 – 88 inclusive.  Those statements record that the joint account was largely used to effect small transactions of less than $100.

9. The credit balance of such account was in the amount of $6069.48 as at 5 October 2017, and was in the amount of $4526.61 as at the date of the closing balance on 8 December 2017.  It is noted that the statements cover a relatively short period of time, namely between 5 October 2017 and 8 December 2017.  The tribunal found that evidence appeared to have been contrived for the purpose of the visa application.  The Tribunal otherwise found that at the time of the application, the parties had provided a statement from their joint bank account as at 7 December 2015 which showed a balance of $55 but with no other transactions.  A statement for the period from 14 December 2014 - 8 June 2015 showed several deposits in the order of $150 – $300, and several small one-off purchases.  The Tribunal was not satisfied that those statements showed that the parties shared their incomes, or that the account was used to either establish or manage a joint household. 

10. At the time of the hearing, it was found in [19] of the reasons that the applicant had used a joint account and that the applicant’s sponsor wife had her own personal and business accounts with another bank.  The applicant’s wife confirmed that she had made the mortgage payments for her house and paid rates and utilities bills from her accounts.  She stated that she used her own account for household shopping, but that she sometimes used the joint account for grocery shopping.  At [20], the Tribunal noted the making of what were described as “large, semi-regular deposits in the order of $2000” into the joint account followed on the same or the next day by cash withdrawals of similar amounts. 

11. The applicant stated that the deposits were repayment for money that he had loaned to friends, but when asked about the large number of cash withdrawals from the joint account, the applicant stated that he used cash for most of his purchases, stating that he had borrowed money from his cousin in the amount of $10,000 and that he had paid that back. The Tribunal conducted an examination of the nature of the payments being made from the joint account for such things as the Velocity Frequent Flyer’s club, donations of $10 and $100 to charities, jewellery purchases, meals at inexpensive restaurants, purchases at Myer, mobile phone and laptop purchases, and furniture purchases from IKEA ranging in price up to around $250.

12. When asked by the Tribunal as to why the applicant and his wife requested and kept receipts in joint names for small-scale everyday expenses such as a meal at a Mexican restaurant or for personal items such as jewellery, the applicant’s wife stated that she and the applicant had obtained and kept the receipts for the purpose of the visa application on the advice of their migration agent – presumably to bolster the applicant’s case. The applicant’s wife confirmed that she had purchased a house in 2011 or 2013, and that her house remained registered in her name only.

13. At [23] of the reasons, the applicant and his wife confirmed that they had no significant joint assets or joint loans.  The applicant and his wife acknowledged that over a period of three years of marriage, the parties had made no savings together toward jointly acquiring a future home.  At [24], the Tribunal, when acknowledging that the applicant was younger than his wife, found that the parties had made no progress toward their self-declared goal of purchasing a home together, and that the applicant had made no progress toward his self-declared goal of supporting his wife financially, finding that those goals were fabricated for the purpose of the visa application. 

14. The Tribunal, based on the evidence before it, including the oral evidence of each of the applicant and his wife, was not satisfied that the parties had pooled their finances, or shared day to day expenses commensurate with their being in a genuine spousal relationship. Under the heading “Nature of the Household”, the Tribunal considered the contents of the applicant’s application for the visa when the applicant stated that the parties decided to live together in August 2014. That statement contrasted and differed from the evidence at the hearing given by the applicant’s wife, wherein she stated that the applicant only moved into her home after the Vietnamese wedding ceremony had been conducted in December 2014.

15. The applicant at [28] of the reasons was found by the Tribunal to have claimed that he did all the housework at the house, and that he also claimed that he was working seven days a week.  The applicant’s wife stated that the applicant arrived home earlier than she did and that he supervised her school-aged children for which she was “grateful”.  On further questioning, however, it was recorded at [28] of the reasons that the applicant acknowledged that the applicant’s wife did the cooking and shopping in the household, but he otherwise maintained that he did the cleaning and outside maintenance. 

16. The Tribunal accepted that the parties had lived at the same address since their marriage, and that the applicant helped supervise the sponsor’s school-aged children, and that he contributed to the household cleaning and maintenance, but the Tribunal found that the financial arrangements between the parties did not show that they had established a joint household together as a spousal couple.  The Tribunal did not accept that they had pooled their resources and lived together in the sponsor’s house as a couple in a genuine spousal relationship.

17. Under the heading “Social Aspects of the Relationship”, the Tribunal addressed the assertions of the applicant that the parties had committed to a shared life together.  Reference was made to statutory declarations which had been provided at the time of the application, in April 2015, by friends of the parties.  Those statutory declarations, and later declarations provided prior to the hearing, were supportive of the proposition that the applicant and his wife socialised happily together. 

18. The Tribunal did not find, however, that the statutory declarations were such that they evidenced a sufficiently detailed and relationship-specific account of the applicant and his wife so as to constitute a genuine relationship between them.  Reference was made to the fact that many photographs had been provided, showing the applicant and his wife together at various parties, and of the parties’ trip to Vietnam in 2017.   The applicant’s wife told the Tribunal that the photographs were provided to the Tribunal for the purpose of the visa application. 

19. Though accepting that the parties had travelled to Vietnam together, and that they had met members of each other’s families in both Vietnam and Australia, the Tribunal did not accept that the evidence contained in the statutory declarations, or the contents of the photographs, singly or together, constituted convincing evidence that the parties were in a genuine spousal relationship.

20. Under the heading “Nature of Persons’ Commitment to Each Other”, the Tribunal adverted to the age difference between the two parties. It also considered the statements of mutual love and affection between the parties. At [36] of the reasons, the Tribunal stated that after considering the circumstances of the applicant, the parties acknowledgement that they gathered evidence of their relationship (such as receipts in joint names for everyday expenses) for the purpose of assisting him with his visa application, photographs produced for the purpose of assisting in the visa obtaining process, and the lack of evidence of substantial pooling of financial resources that would be expected in a committed marriage, that it was not satisfied that a genuine spousal relationship existed.

21. When asked about the intentions of the parties in relation to possibly having children together, the parties stated that they intended to have children but “in the future, in a few years”, when they were financially secure.  It was noted that at the time of the tribunal’s decision, the applicant’s wife was 37 years old and already had children aged 17 and 13.  The Tribunal also found that the parties’ claim to intend to have children at some time in the future was unconvincing.  The Tribunal was not satisfied that there was any genuine spousal relationship, accepting only that there was a degree of companionship and support shown between people living in a housemate context together.

22. Under the heading “Any Other Relevant Considerations”, the Tribunal, at [39] of the reasons, found that at the time of the application, the applicant had declared that the parties first met at a Buddhist temple in Durack (a suburb of Brisbane), but the sponsor stated at the time of the hearing that she and the applicant had first met at the applicant’s cousin’s home where the applicant was living at the time.  In a written submission provided to the Tribunal, the parties’ agent stated that the sponsor had insured her new car in joint names, but the sponsor, however, acknowledged that she had in fact only listed the applicant as a driver of the vehicle and not as a co-owner.

23. The Tribunal at [41] of its reasons found that the discrepancies in the information provided to the Tribunal, and the conflicting evidence provided to the Tribunal by the applicant and  his wife, was supportive of a finding that much of the evidence had been organised and arranged for the purpose of the application for the visa and for review, and that that had contributed to the Tribunal forming the view that the relationship was contrived and not genuine.

24. At [42] of the reasons, the Tribunal found that it was not satisfied that the parties were in a genuine relationship. During the course of the hearing, Mr Boccabella of counsel made submissions to the effect that relevant evidence had not been considered by the Tribunal when reaching its decision. For example, he pointed to the fact that the Tribunal did not refer to the fact that the evidence before it was in part to the effect that the wife had given her second-hand vehicle to the applicant, and that such gifting constituted an important matter which ought to have been referred to by the Tribunal on the question of pooling of assets, as countenanced under Regulation 1.15A(3)(a)(iii) of the Regulations.

25. However, it is not necessary, in the Court’s view, for the Tribunal to make reference to each and every aspect of the evidence before it when arriving at a decision as to whether a genuine relationship existed or not.  In the case of He v Minister for Immigration and Border Protection [2017] FCAFC 206 at 82 and 83, the Full Court held, per Siopis, Kerr and Rangiah JJ as follows:

    The Tribunal’s reasons were not structured in a manner that formulaically addressed each of the relevant matters in turn, but they did not have to be; see Zhang at [20].  Further, as Charlesworth J said in Singh at [20], the impressionistic and evaluative nature of the Tribunal’s task must be taken into account when drawing implications from its reasons, and further, such reasons are not to be construed minutely and finely with an eye attuned to the perception of error.

26. Then at p 83:

    However, the Tribunal was not required to refer to or make findings upon every piece of evidence:  Applicant Waee v Minister for Immigration and Multicultural and Indigenous Affairs [2003] 236 FCR 593 at [46];  Minister for Immigration and Border Protection v Truong [2016] FCAFC 54 at [80];  Yusuf at [9] – [10] and [77].  Rather, it was required to make findings upon the matters prescribed in reg 1.115 at 1.15A(3).  In our opinion, the Tribunal’s reasons demonstrate that it did make findings upon, and therefore considered, the extent of the pooling of financial resources, as was required under reg 1.15A(3)(a)(iii).

27. There has been no demonstrated error, in the Court’s view, as to the manner in which the Tribunal approached the consideration of regulation 1.15A matters. During the course of submissions on behalf of the applicant, a submission was made that witnesses who had provided statutory declarations ought to have been called by the member of the Tribunal. However, section 361(3) of the Act makes it clear that the Tribunal is not under an obligation to call any witnesses nominated by the applicant: [1]. In any event, it is clear from a reading of the transcript (page 28 at lines 23-27), the transcript being annexed to the affidavit of one Nguyen, filed on 7 November 2018, as attachment “RN-2”, that the legal representative who accompanied the applicant to the hearing did not require the calling of any such witnesses at the hearing when he had the opportunity to do so.

    [1]     Minister for Immigration and Multicultural and Indigenous Affairs v Maltsin [2005] 88 ALR 304 at

1. The manner in which the Tribunal approached its decision was criticised as without evident and intelligible justification, but the Court does not accept that submission.  The applicant presented what material he considered relevant to the Tribunal for its consideration, and the Tribunal relevantly came to a decision based upon such information.  It did so as best it could in the circumstances, it not being convinced that the facts as presented to it were truthful. 

2. Similarly, criticism was made of the questioning of the Tribunal as being double-barrelled. In small part, that might have been the case, but, materially, the member of the Tribunal did not so question the applicant or the applicant’s wife in such a way as to lead to an unfair receipt of evidence, or otherwise so as to lead to an unfair hearing.  The evidence was obtained in an appropriate manner, properly addressing issues that had to be addressed under the relevant legislation.

3. It cannot be said that no other rational or logical decision-maker could not have made the same decision as did the Tribunal in the present case. [2]   . Neither could the decision be considered as legally unreasonable, or one lacking and evident and intelligible justification as such respective concepts were considered in Minister for Immigration and Citizenship v Li[3].

   [2]     Minister for Immigration and Citizenship v SZMDS [2010] 240 CLR 611 at [130] per Crennan and

   [3] (2013) 249 CLR 332 at [66] and [76]

4. No jurisdictional error has been demonstrated in relation to the decision arrived at by the Tribunal.  The application for review is without merit and is dismissed.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Egan

Associate: 

Date:  7 January 2019

    [37]    Bell JJ