Nguyen v Minister for Immigration

[2018] FCCA 3658

FEDERAL CIRCUIT COURT OF AUSTRALIA

NGUYEN & ORS v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 3658

Catchwords:
MIGRATION – Off-shore application for spousal visa – adverse credibility findings against applicants – some observations of Tribunal not material – no jurisdictional error – application for review dismissed.

Legislation:

Migration Act 1958 (Cth), ss.348, 349, 359AA, 476(1)

Cases cited:
Hossain v Minister for Immigration and Border Protection (2018) HCA 34
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
SZOOR v Minister for Immigration and Citizenship & Anor (2012) FCAFC 58
SZUHJ v Minister for Immigration and Border Protection (2018) FCA 331

First Applicant: KIM THANH NGUYEN

Second Applicant: VAN HOANG NGUYEN

Third Applicant: PHUONG NAM NGUYEN

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP & MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 927 of 2017

Judgment of: Judge Egan

Hearing date: 5 December 2018

Date of Last Submission: 5 December 2018

Delivered at: Brisbane

Delivered on: 5 December 2018

REPRESENTATION

Counsel for the Applicant: Mr Boccabella

Solicitors for the Applicant: T Lawyers

Counsel for the Respondents: Ms Hoiberg

Solicitors for the Respondents: Sparke Helmore Lawyers

THE COURT ORDERS THAT:

1. Leave be granted for the First Respondent to change the First Respondent’s name from “Minister for Immigration and Border Protection” to “Minister for Immigration, Citizenship and Multicultural Affairs”.

2. The Application for review filed on 18 September 2017 be dismissed.

3. The Applicant pay the First Respondent’s costs fixed in the amount of $7,467.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 927 of 2017

KIM THANH NGUYEN

First Applicant

VAN HOANG NGUYEN

Second Applicant

PHUONG NAM NGUYEN
Third Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP & MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The first applicant in this matter is a female Australian citizen. The second applicant is a citizen of Vietnam who currently resides there. The third applicant is the son of the second applicant, whose application is made for a visa as a family member of the second applicant. The first and second applicants claim to have met in August 2014 when the first applicant was on a holiday in Vietnam with her adult daughter. It was asserted that after August 2014, the first and second applicants remained in contact, albeit that the first applicant returned to Australia in September 2014.

2. It was also asserted that the first and second applicants agreed to marry in November 2014, some three months after having first met. That is not remarkable in itself; some relationships bloom early. However, it is nevertheless a short period of time between having first met and for agreement to be reached to marry. It would appear, from the lodged material, that the parties married in about late December 2014. It was said that the marriage was registered on 29 January 2015. The evidence was that the first applicant had made four further visits to Vietnam subsequent to marriage.

3. She indicated that she was in regular contact with the second applicant when physically separated from him. They each claimed to be in a genuine spousal relationship. The second applicant lodged a partner visa application on 30 June 2015. On 22 July 2016, a delegate of the Minister refused the second applicant’s visa application. On 27 September 2015, the first applicant applied to the Administrative Appeals Tribunal (“the Tribunal”) for a review of the delegate’s decision. On 14 August 2017, the Tribunal affirmed the decision of the delegate to refuse to grant the visa.

4. On 18 September 2017, the applicant filed an application for review of the tribunal’s decision pursuant to provisions of section 476(1) of the Migration Act 1958 (Cth) (“the Act”). The grounds of the application, as supplemented by the outline of submissions filed on behalf of the applicant, turned upon two fundamental issues. The first issue was that the tribunal had failed to properly conduct a review for the purpose of implementing part 5 and/or sections 348 and 349 of the Act. Essentially, it was alleged on behalf of the applicant that the tribunal had erroneously adopted a position which was not open on the facts before it, and that in doing so, its whole decision-making process was adversely affected by jurisdictional error so as to warrant the issue of a writ of certiorari quashing the decision.

5. Counsel for the applicant, Mr Boccabella, pointed in particular to findings which are contained in paragraphs 36 and 49 of the reasons of the tribunal.  In [36], the tribunal, in part, found as follows:

   With respect to the claimed relationship between the review and visa applicants at the time of application, the credibility issues are strongly suggestive of a contrivance, and a sham or a false relationship, for the purpose of reuniting the latter (the second applicant) with his former wife and daughters in Australia.

6. In [49] of the reasons, the tribunal found:

   In the present matter, the tribunal finds that the primary motivation of the review and visa applicants for the partner visa application is so the latter may reunite with his former wife and children in Australia.

7. The Court was referred to various parts of the transcript which was annexed to an affidavit of one Mr Hu, filed on 27 November 2018. At pages 57 – 60 of the day two (2) transcript, the tribunal member, when asking questions of the first applicant, seems to have interpreted the facts before the tribunal, and the evidence given by the first applicant and the second applicant, as justifying the finding in [49] of the reasons, quoted above. Ms Hoiberg, counsel for the first respondent, took the Court to pages 49 and 50 of the day two (2) transcript as constituting what was submitted by her to be the nub of complaint made by the applicant in respect of the [49] finding.

8. It is the case that there was reference made in the transcript to the second applicant’s relationship with his former wife who, it was found by the Tribunal, was to be reunited with the applicant, along with their respective children. Whether or not that issue was, in all of the circumstances, fairly addressed by the Tribunal member so as to ensure that the first applicant and the second applicant were in all respects shown procedural fairness, that question is, in the Court’s view, inconclusive, and unnecessary to be further addressed, in the light of the further material findings of the tribunal on the question as to whether a genuine relationship existed between the first applicant and the second applicant or not, that being a fundamental question which had to be answered in favour of the first applicant and the second applicant for the visa to be granted.

9. At [8] and [9] of  its reasons, the tribunal set out the relevant background as asserted on behalf of the first applicant and the second applicant.  In [13] – [18] of the reasons of the tribunal, consideration was given to the claim that the first applicant and the second applicant were in a genuine relationship, setting out the requirements for a legal determination in that regard.  At [37] – [45] of the tribunal reasons, the circumstances of the first applicant and the second applicant were examined in detail. 

   
    
   Financial Aspects of the Relationship

10. Under the heading “Financial Aspects of the Relationship”, the Tribunal noted that the first applicant and the second applicant did not remit income to each other.

11. There was evidence before the Tribunal of some joint expenditure of funds during occasions when they were together in Vietnam. The tribunal had some documentary evidence suggesting that the review applicant had sent funds to the visa applicant on three occasions to purchase a machine for a friend, and for expenditure on gifts for her relatives, but the tribunal did not regard that as constituting any pooling of finances. There was no documentary evidence before the tribunal of joint ownership of major assets, joint liabilities or legal obligations between the parties.

12. Oral evidence was consistent with that finding. The Tribunal did not find there to be any probative evidence logically tending to support the existence of a spousal relationship between the first applicant and the second applicant.

Nature of the Household

1. The Tribunal noted that the parties resided in different countries.  The tribunal further noted that the oral evidence of the first applicant and the second applicant was to the effect that when they lived together, when both in Vietnam, they shared housework and responsibility. The tribunal accepted that the parties had resided together on the first applicant’s more recent trips to Vietnam, though the tribunal did not find that that was evidence probative of the assertion that a genuine spousal relationship existed.  The Tribunal cited credibility concerns about the evidence of the first applicant and the second applicant generally.

Social Aspects of the Relationship

1. The Tribunal noted that there was much evidence submitted of the social relationship between the parties. The Tribunal noted that the first applicant had met the second applicant on the last day of her trip to Vietnam in 2014, that being the same day on which the first applicant’s daughter had also first met the first applicant’s daughter’s future husband. The Tribunal noted that the first applicant had divorced her previous partner “Mark” one year after marring/meeting in Australia – the term partner seeming to indicate former husband of the first applicant.

2. The Tribunal placed limited weight upon the social evidence presented, bearing in mind its concerns as to the credibility of the first applicant and the second applicant. The Tribunal did not find that evidence probative of the existence of a genuine spousal relationship between the first applicant and the second applicant.

Nature of the Persons’ Commitment to Each Other

1. The Tribunal found that it had difficulty with aspects of the evidence adduced in relation to joint commitment to each other. The Tribunal again placed limited weight upon the evidence before it, based on credibility concerns. The Tribunal did not find the evidence adduced as probative of the existence of a genuine relationship between the first applicant and the second applicant. At [19] – [36] of the Tribunal’s reasons, the Tribunal dealt with “credibility issues”. At [19] of the reasons, the Tribunal noted that the second applicant’s former wife (with whom he had three children) resided in Australia with their two daughters. It was common ground that the other child, a boy, resided with the second applicant in Vietnam.

2. It was recorded that when asked by the Tribunal to outline the particulars of that prior relationship, the second applicant had advised the Tribunal that he and his first wife were divorced on 28 December 2012 following the former wife’s arrival in Australia on 17 December 2012.  The second applicant indicated that he and his first wife had filed for divorce on 5 December 2012, but for the purposes of the first wife’s student related visa application made to allow her to enter Australia, he and his first wife had maintained that they were married because an agent advised them to do so, as they had not been divorced at the time.

3. In [20] of the reasons, the second applicant stated that he could not remember the last time he spoke to his former wife, other than when she had first gone to Australia, and that he was not aware of where she lived with his daughters, other than in Queensland in the vicinity of Brisbane.  The second applicant said that he did not know of his former wife’s residential location or what she was doing.  It was recorded that the second applicant had provided vague responses, suggesting that the former wife and his daughters were holding visas associated with temporary study.  When asked by the Tribunal if the former wife had a new partner, the second applicant explained that he had been told by his children that that was the case, saying that he did not know if this new partner was an Australian citizen or a permanent resident.

4. At [21] of the reasons, the Tribunal recorded that the second applicant understood that his former wife had been sponsored for a partner visa, and when responding to the Tribunal’s questions regarding whether his daughters were similarly sponsored, the second applicant was recorded as having provided vague and inconsistent oral evidence, indicating on the one hand that they had been sponsored, and on the other hand that he was not sure whether they had been sponsored.

5. The Tribunal raised with the second applicant that it was unusual that he might not have known whether his daughters were included in a visa application which might lead to permanent residence in Australia or not, and invited comment by the second applicant. The second applicant responded that his older daughter was an adult studying in a field needed in Australia, and the younger daughter was under the guardianship of his former wife, confirming also that he spoke to his daughters every one or two months.

6. At [22] of the reasons, it was recorded by the Tribunal that when raising with the visa applicant the second applicant’s statement that he did not know the address of his two daughters, the second applicant disagreed, stating that such children lived with their mother who had a new husband.  It was recorded that when asked by the Tribunal where the second applicant would live in Australia if his visa application was granted, the second applicant recalled precisely the first applicant’s address in Inala.  Though stating initially that he did not know where his children lived, the second applicant subsequently stated that he recalled that they were also living in Inala but was unaware of their address.

7. At [23] of the reasons, the Tribunal recorded that it had asked the second applicant why, in his oral evidence, he had not volunteered that his daughters had been sponsored in respect of their entry into Australia, when he had been able to provide such information at the departmental interview.  When pressed as to why his evidence was vague on that point, the second applicant maintained that he was unaware of the current visa status of his daughters.

8. At [24] of the reasons, the Tribunal recorded that it had:

   …observed the demeanour of the visa applicant to be defensive in his responses to its questions concerning the circumstances of his former wife and daughters being in Australia and their respective visa status.

9. It was also found by the Tribunal that the applicant did not deliver this oral evidence in a forthcoming fashion, preferring to provide vague responses until his comments at the departmental interview were brought to his attention, that being at a time when he displayed a more detailed knowledge of the circumstances in which his daughters lived in Australia.

10. About that finding and the comment of the Tribunal concerning the demeanour of the second applicant, counsel for the first applicant and second applicant brought to the Court’s attention the fact that the evidence provided by the second applicant at the hearings before the Tribunal was given orally per telephone, the second applicant being in Vietnam at the time.

11. At first blush, one would think that would prevent the Tribunal “observing the demeanour” of the second applicant.  However, it is not uncommon for observations about the giving of evidence to be erroneously couched in terms of demeanour, irrespective of whether a witness is physically present before the Tribunal at the time of the giving of evidence or not. Actual demeanour – meaning the carriage of one’s person during the course of giving evidence – could not be observed unless there was some video link in operation at the time.  Rather, what is inferred the Tribunal was trying to convey when making such finding was that the answers given to questions directed to the second applicant during the giving of evidence were vague and unreliable.

12. It is noted that in an affidavit of one Pamela Tieu filed on 27 November 2018, by paragraph 5 thereof, criticism was made of the member in asking questions before full answers were given. A reading of the transcript does support such view, at least in some respects, but it has not been demonstrated that, notwithstanding any such disallowance on the part of the member asking the questions, there has thereby been a miscarriage of justice leading to jurisdictional error in relation to that issue.

13. Someone in the position of a Tribunal member receiving evidence per telephone is quite capable of reaching a conclusion as to whether evidence was given in a forthcoming fashion or not, and whether the responses provided were vague or not.  On that point, the Tribunal found as follows:

    Upon careful consideration, the tribunal is not satisfied that the visa applicant was a witness of candour in relation to the circumstances of his divorce from his former wife, how she and their two daughters came to be living in Australia, and their subsequent receipt of sponsorship for partner visas.  The tribunal notes that the review applicant (the first applicant) in her oral evidence was able to recall the names of the visa applicant’s former wife and two daughters, the birth years of the daughters, and the respective stages of the daughters’ study, however she also disavowed knowledge of their whereabouts and maintained the visa applicant was not in contact with his former wife.  Her evidence on these matters presented as well‑rehearsed with respect to aspects likely to support her claims and defensive in relation to those to the contrary.

14. At [30], the second applicant was recorded by the Tribunal as having given oral evidence concerning his meeting and marrying the review applicant (the first applicant) in almost identical terms to that given by the first applicant.  The tribunal recorded that the second applicant’s oral evidence was delivered in a methodical manner, possessing the flavour of a well‑rehearsed account, which delivery was to be contrasted with the second applicant’s earlier inability to recall basic details as to the circumstances of the first applicant and her daughters in Australia.

15. At [31], it was recorded that the Tribunal raised with the second applicant that he had initially provided vague oral evidence regarding whether his former wife and daughters were sponsored in a partner visa application, but he later confirmed that at a department interview on 8 April 2016, he told the departmental officer that his former wife had obtained a new partner in Australia shortly after her arrival who had then sponsored the first wife and the daughters for visas.

16. The Tribunal found that such contradictory evidence and information undermined the credibility of the review claims, and of the evidence of the first applicant and the second applicant, suggestive of the relationship between them not being genuine, but rather being put forward as having been entered into for the purpose of re‑uniting the visa applicant with his former wife and other two children in Australia.

17. At [32], the Tribunal found that it had carefully considered the response of the first applicant to the section 359AA information in its decision making process, finding that it did not accept that cultural or language difficulties accounted for the nature of the second applicant’s vague and evasive evidence, citing at the time that evidence was given through a NAATI level 3 interpreter in the Vietnamese language. The fact that the applicant had indicated that he understood the interpreter, the fact that the applicant had not objected to the interpreter’s services, and the fact that the questions posed by the Tribunal were not of a technical nature were noted by the Tribunal.

1. At [34] of the reasons, the Tribunal recorded that it had raised with the first applicant that the evidence might tend to suggest that her relationship with the second applicant was not genuine, and had been put forward for the purpose of the second applicant reuniting with his former wife and other children in Australia.  Such assertion was generally denied by the first applicant.

2. The circumstances taken into account by the Tribunal relating to a consideration as to whether the parties were in a genuine relationship or not, were circumstances which are required to be the subject of examination by a tribunal in matters such as the present.  The Tribunal canvassed all relevant issues in that regard.

3. It is significant, however, that in [49] of the Tribunal’s reasons, the Tribunal distanced itself from reliance upon the proposition that the primary motive for the visa application was for the second applicant to reunite with his former wife and children.  The Tribunal did that by carefully expunging such a consideration from its final determination on the question of whether there was a genuine relationship or not.

4. In that regard, the Tribunal at [49] said as follows:

   However, the tribunal has taken great care not to base its assessment of the genuineness of the claimed relationship, at the time of application, upon the motivation of the parties. (emphasis added)  Rather, the tribunal has assessed the entirety of the circumstances pertaining to the review and visa applicants at that time, finding they embarked upon a sophisticated contrivance to claim they were in a spousal relationship in order to make a successful partner visa application.  Such conduct amounts to the visa applicant and the review applicant to have pretended to be in, and imitated in an untruthful fashion, a spousal relationship at the time of the visa application.  Their claimed relationship was a “sham” and also a “false relationship” at that time. 

   Accordingly, the Tribunal found the claimed relationship between the visa applicant and the review applicant not to be genuine at the time of the visa application.  Having weighed the evidence before it carefully as previously outlined, the Tribunal also found the review and visa applicants “to lack a mutual commitment to a shared life as husband and wife to the exclusion of all others, at the time of the visa application.” 

5. In all of the circumstances, the Court is satisfied that the hypothesis seemingly adopted by the Tribunal (namely as to the second applicant being motivated to obtain a spousal visa so as to enable him to reunite with his former wife and children) was not acted upon by the Tribunal when arriving at its decision about the lack of genuineness of the relationship.  Nor was it a finding which coloured the Tribunal’s assessment on the different issue as to whether a genuine relationship existed between the first applicant and the second applicant or not.  There is no merit in respect of that ground.

6. The applicant further made submissions to the effect that the member of the Tribunal had been guilty of self-persuasion, and that they had also become the contradictor in the case.  A reading of the transcript does not suggest that that is so.  There were obvious language difficulties requiring the use of an interpreter.  It is not always easy for a Tribunal member to conduct a hearing expeditiously when interpreters are used.  The fact that the Tribunal member put questions to the first applicant and the second applicant in the way that such questions were put, was not the subject of objection, notwithstanding that the applicants were represented before the Tribunal.  It is further not considered that the Tribunal member was unduly invasive or participatory during the course of the extraction of evidence during the course of the hearing.  The applicants were able to raise any matter through their representative, but that was not done.  Complaints about the conduct of the proceedings by the Tribunal member are also without merit.

7. Similarly, there is no evidence of apprehended bias.  The Tribunal member was endeavouring to ascertain, as best they could, the factual matrix within which the visa application was made, and the true relationship between the parties.  Different Tribunal members will approach that task in different ways.  The manner in which it was effected on this occasion was not out of the ordinary. 

8. As to the submission that the member could have asked the secretary for a report on whether or not any of the findings of the Tribunal were open or not, reference is made to the comments of Flick J in SZUHJ v Minister for Immigration and Border Protection (2018) FCA 331 at [21] where it was held that there is no necessity for the Tribunal to possess rebutting evidence before concluding that a factual assertion may be rejected. This case falls into that category.

9. Otherwise, grounds 3-8 inclusive of the application for review relate to the conduct of the proceedings being asserted to be productive of an unfair hearing.  As referred to earlier, the Tribunal member did their best in the circumstances so as to arrive at a decision after having addressed all relevant matters pertaining to whether it established the existence of a genuine relationship or not.  There is no merit to grounds 3-10 inclusive of the application for review. 

10. As to the submission made on behalf of the applicant that the adverse credibility findings against the first applicant and second applicant relating to the first applicant allegedly contriving to obtain a visa so as to reunite with his former wife and daughters in Australia, such finding does not so infect the rest of the decision-making process so as to give rise to jurisdictional error requiring the issue of a writ of certiorari.  The finding as to contrivance as set out in paragraphs 36 and 49, even if held not to be a finding factually based, was severable from the balance of the findings of the Tribunal which were based on clear evidence, and which led the Tribunal to find that there was not at any relevant time a genuine relationship between the parties.  In SZOOR v Minister for Immigration and Citizenship & Anor (2012) FCAFC 58 at [102] McKerracher J (with whom Reeves J agreed) said:

    The very clearly expressed conclusions of the ... Tribunal were, after exhaustive analysis, unquestionably adverse to the credibility of the appellant.  Even if subsequent reliance to any extent at all upon the anonymous letter could be said to be illogical or irrational (as well it might), it is quite clear from the manner in which the ... Tribunal framed its reasons that the adverse conclusion against the appellant had already been reached, quite independently of any comfort which may have been drawn by reference to the anonymous letter.  On that basis, the conclusion of the Federal Magistrate was entirely correct.

11. Those comments are apposite to the present case.

12. Further, in Hossain v Minister for Immigration and Border Protection (2018) HCA 34 at [25] and [26] it was held by Kiefel CJ, Gageler and Keane JJ, as follows:

    Jurisdictional error is an expression not simply of the existence of an error but of the gravity of that error.  The unavoidable distinction between jurisdictional errors and non-jurisdictional errors is ultimately “a distinction between errors that are authorised and errors that are not; between acts that are unauthorised by law and acts that are authorised.

    Although ultimately correct in the result, the majority in the Full Court had been wrong to distinguish between a decision involving jurisdictional error and a decision wanting in authority.  They are one and the same.

13. At [40] and [42] in Hossain, Nettle J held:

    There may be a number of circumstances in which an error is jurisdictional despite not depriving a party of the possibility of a successful outcome;  for example, where respect for the dignity of the individual may mean that a denial of procedural fairness should be regarded as a jurisdictional error regardless of the effect it may have had on the result reached by the decision-maker. 

    However, it is impossible to divine an a priori classification of the jurisdictional errors that do not deprive a party of the possibility of a successful outcome.  Perhaps the most that can or should be said is that, if an error is jurisdictional, it will not infrequently be the case that it will deprive a party of a possibility of a successful outcome.

14. Also in Hossain in [76] and [78], Edelman J held as follows:

    [76] The essential issue is whether an error by the tribunal in its reasoning on one criterion was material, and jurisdictional, if the error could not have affected the other criterion on which the visa was refused.

    [78] The error in this submission is that an assessment of whether an error was material, in the sense that it affected the exercise of power by depriving a person of the possibility of a successful outcome, does not take place in a universe of hypothetical facts.  The materiality of the error is assessed against the existing facts before the tribunal.

15. To the extent that the Tribunal made a finding about primary motive as expressed in [36] and [49] of the reasons, such finding was not material to the final decision of the Tribunal to refuse the grant of the application for the spousal visa.

16. Further, it could not be said that no other rational or logical decision-maker could not have made the same decision as the tribunal.[1] Neither could the decision be considered as legally unreasonable, or one lacking an evident and intelligible justification, as such respective concepts were considered in Minister for Immigration and Citizenship v Li.[2] 

    [1]   Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130].

    [2] (2013) 249 CLR 332 at [66] and [76]

17. In all of the circumstances the application for review is without merit. The application for review is dismissed.

I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Judge Egan

Associate:  

Date:  11 December 2018