Nguyen v Minister for Immigration
[2020] FCCA 2935
•30 October 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| NGUYEN v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 2935 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – whether the Tribunal failed to exercise jurisdiction by failing to consider the financial aspects of the applicant’s relationship – whether jurisdictional error is made out – no jurisdictional error arises – the application is dismissed. |
| Legislation: Migration Act 1958 (Cth), s.5F. Migration Regulations 1994 (Cth), r.1.15A. |
| Cases cited: Abebe v Commonwealth of Australia (1999) 197 CLR 510. He v Minister for Immigration and Border Protection (2017) 255 FCR 41. Hong v Minister for Immigration and Anor [2019] FCCA 3500. Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123. |
| Applicant: | DANG DUNG NGUYEN |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2530 of 2019 |
| Judgment of: | Judge Humphreys |
| Hearing date: | 22 October 2020 |
| Date of Last Submission: | 22 October 2020 |
| Delivered at: | Parramatta |
| Delivered on: | 30 October 2020 |
REPRESENTATION
| Counsel for the Applicant: | Ms Lahoud |
| Solicitors for the Applicant: | Andy Pham Lawyers |
| Counsel for the Respondents: | Mr Kay Hoyle |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application is dismissed.
The applicant to pay the first respondent’s costs fixed in the amount of $9,467.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
SYG 2530 of 2019
| DANG DUNG NGUYEN |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
On 10 June 2015, the applicant applied for a Partner (Temporary) (Class UK) visa based on his spousal relationship with Ms Alisha Anne Ryan, the sponsor. On 22 December 2016, a delegate of the Minister for Immigration and Border Protection (“the delegate”) refused to grant the visa. The delegate was not satisfied that the applicant and the sponsor were genuine spousal partners.
The applicant sought a merits review in the Administrative Appeals Tribunal (“the Tribunal”). An initial hearing took place on 21 August 2018. On 31 May 2019 the Tribunal advised the applicant that, having considered the information put forward, it was unable to make a favourable decision. The applicant was invited to appear before the Tribunal on 25 June 2019. The Tribunal was differently constituted from the first hearing. In a decision dated 2 September 2019, the Tribunal affirmed the decision not to grant the applicant his visa.
The applicant now seeks a judicial review of the Tribunal’s decision.
The matter came on for hearing on 20 July 2020. Due to the very imprecise nature of the applicant’s grounds of application, the matter was adjourned for further hearing. The original grounds of the application can be best described as narrative in form and lacking precision. They did not assist the Court, nor the first respondent in clearly understanding the nature of the complaint being made by reference to a precise form of jurisdictional error alleged, accompanied by particulars.
As a result, orders were made for the applicant to file and serve an amended grounds of application and further written submissions which corrected the defects identified by the Court and the first respondent in relation to the initial grounds.
The Administrative Appeals Tribunal’s Decision
The Tribunal decision amounts to some ten typewritten pages. The decision notes, at paragraph 3, that the applicant appeared before the Tribunal initially on 21 August 2018. On 31 May 2019, the Tribunal wrote to the applicant indicating that it was unable to make a favourable decision and invited him to appear again before the Tribunal. The Tribunal was differently constituted on the second occasion.
The Tribunal noted that the applicant previously applied for a Student visa which was refused in June 2009. The applicant arrived in Australia in May 2013 as the holder of a Student visa which ceased on 22 September 2016. The applicant since remained in Australia on a Bridging visa, noting that he was married to his wife in April 2015 at Yagoona. Accordingly, the Tribunal was satisfied that the parties were married to each other in a marriage that was valid for the purposes of s 5F(2)(a) of the Migration Act 1958 (Cth) (“the Act”).
The Tribunal then correctly instructed itself as to the various matters that were required to be considered under r 1.15A(3) of the Migration Regulations 1994 (Cth) (“the Regulations”)
At paragraph 16 through to 18 of its decision, the Tribunal considered the financial aspects of the parties. The Tribunal noted that various receipts were provided but no information was provided as to who actually paid for the purchases. The Tribunal noted that individual tax return forms for the years 2016 to 2018 record the parties as each-other’s respective spouses. The 2018 notices of assessment, addressed to the parties individually, recorded that they each received a refund and these were credited to a joint bank account. The Tribunal concluded that, overall, the statements and other information provided little insight into shared day-to-day household expenses.
At paragraph 18 of its decision, the Tribunal noted there was no independent information to support the claim that the parties share their rent or other household costs. The Tribunal accepted that bank statements have been issued to the parties jointly, and that for a time, the applicant’s salary was deposited into a joint bank account and that various receipts had been issued jointly. Overall, the Tribunal did not accept that the parties shared day-to-day household expenses.
It is common ground between the applicant and the first respondent, that there is no mention in this section of the Tribunal’s decision dealing with the financial aspects of the relationship of material contained at pages 608-610 of the Court Book, that the sponsor named the applicant as her beneficiary in a non-binding, death benefit nomination with her superannuation fund, Hostplus. This material shows that the applicant may receive the amount of $141,363 in the event of the sponsor’s death. The material makes it clear that while the Trustee would take into consideration the non-binding nomination, the Trustee was not bound to follow it.
The Tribunal noted there was no evidence that the parties have any joint responsibility for the care and support of children. The Tribunal noted that the parties have lived in five different residential addresses together, one of which is the applicant sister’s home. At paragraph 22 through to 24 of its decision, the Tribunal noted that there was inconsistencies in the evidence that was given as to who shared what bedrooms and at which premises. At paragraph 25 of its decision, the Tribunal stated the following:
The Tribunal feels that the parties be able to provide consistent information about who lived with them at the different addresses and the amount of bedrooms at each of the addresses where they claim to have lived together.
At paragraph 28, the Tribunal noted that it was puzzled why a couple who claim to have lived together in a married relationship since 2015 were unable to give consistent information about day-to-day matters including the applicant’s employment. The Tribunal was of the view that if the parties shared living arrangements, as they claim, they would instinctively be able to provide consistent information about their living arrangements.
Paragraph 29 of the Tribunals decision, deals with inconsistencies about where the applicant spent the night before the departmental interview. The sponsor stated that the night before the departmental interview, the applicant stayed over at his sister’s place. This was inconsistent with the applicant’s evidence that he had arrived home at 10:30 PM, however the sponsor’s mother and siblings were asleep and the sponsor was awake. The applicant later stated that the sponsor was asleep and was not aware he had returned home late.
At paragraph 30 of its decision, the Tribunal concluded that the explanation for this inconsistent information was indicative that the applicant was fabricating information to allay the inconsistent information he provided to the Department and to the Tribunal. The Tribunal did not accept that the applicant was a credible witness.
At paragraph 34 of its decision onwards, the Tribunal deals with the social aspects of the parties’ relationship. Various evidence is recounted during the discussions in paragraphs 35, 36 and 37 of the Tribunals decision. The Tribunal accepted that the parties’ plan and undertake joint social activities. Whilst the Tribunal accepted that a witness at the Tribunal hearing and the authors of third-party statements believe the parties’ relationship to be genuine, the Tribunal is of the view that the statements did not outweigh the inconsistent information the parties provided to the Tribunal and the Department. This inconsistent information led the Tribunal to have significant concerns about the parties’ credibility.
At paragraph 38 of its decision onwards, the Tribunal dealt with the parties’ commitment to their relationship. Perplexingly, a witness named Blake told the Tribunal that the applicant is the sponsor’s fiancé only. Following questioning the witness then declared the parties were married 4-5 years ago.
At paragraph 42 of its decision, the Tribunal noted that where a couple provides consistent information about different aspects of their relationship, it provides the Tribunal with an insight as to how they provide each other with companionship and support and whether they see their relationship as long-term. The Tribunal noted that the parties provided significantly inconsistent information about their household. This led the Tribunal not to accept that the parties lived together as they claimed, or that they provided each other with companionship and emotional support or that they saw their relationship as long-term.
At paragraph 43 of its decision onwards, the Tribunal considers all of the evidence, including evidence that was provided both individually and as a whole including the Department and Tribunal case files and the evidence given to the Tribunal differently constituted. The Tribunal noted that the parties provided significantly inconsistent information about their household. Given the inconsistent evidence and credibility concerns, the Tribunal was not satisfied that the parties had a mutual commitment to a shared life to the exclusion of all others. Accordingly, the Tribunal affirmed the decision not to grant the applicant his Partners (Temporary) (Class UK) visa.
Grounds of Judicial Review
The original grounds of application have been abandoned and in their place is a single ground as follows:
Ground One
In considering the applicant’s visa, the Tribunal (a.k.a. second respondent) must consider all the circumstances of the relationship including the matters set out in Reg 1.15A(3). The second respondent failed to attend to its statutorily mandated task in failing to consider section 1.15(3)(a)(iv) of the law and more fully, in failing to consider r1.15(A)(3)(a)(i) to (v) on all the available evidence before it at the time.
No particulars were provided to support the amended ground.
The Applicant’s Submissions
Counsel for the applicant noted that the applicant and his sponsor were legally married on 4 April 2015. The issue for determination is whether the applicant and his sponsor meet the requirements under s 5F(1) of the Act that the parties have a mutual commitment to a shared life as a married couple to the exclusion of all others and the relationship between them is genuine and continuing and they lived together or do not live separately and apart on a permanent basis.
Regulation 1.15A of the Regulations sets out a number of matters which must be considered in relation to the above. These are:
a) the financial aspects of the relationship;
b) the nature of the household;
c) the social aspects of the relationship; and
d) the nature of the person’s commitment to each other.
In relation to the financial aspects of the relationship, the legislation mandates that the following matters must be considered:
i. any joint ownership of any real estate or other major assets; and
ii. any joint liabilities;
iii.the extent of any pooling of financial resources, especially in relation to major financial assets; 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
The single issue which is now agitated in the Court relates to the failure of the Tribunal, in considering the financial aspects of the relationship, to refer to the sponsor’s superannuation fund and the details of both the balance and death benefit nomination.
Whilst the issue of superannuation was discussed briefly in the first hearing (see CB 547) the issue was not raised in the second hearing at all.
Counsel for the applicant notes that that the applicant is the sole beneficiary of the sponsor’s superannuation death benefit non-binding nomination. The applicant is listed as the sponsor’s husband in the sponsor’s superannuation statement for the period 1 July to 31 December 2018. The Sponsor’s superannuation balance was $7,692.18 as at 31 December 2018 (see CB608). The death benefit is listed as $141,365. It was submitted this was the most significant asset the couple shared. This entitlement was not mentioned in the Tribunal decision at paragraphs 16 to 18. In ignoring this material it is submitted the Tribunal committed jurisdictional error.
Reference was made to a number of cases involving the consideration of superannuation aspects of a relationship and whether this pointed to the fact that they are in a genuine and continuing relationship for the purposes of the Act. In the matter of Hong v Minister for Immigration and Anor [2019] FCCA 3500 at [128]-[129] the following was said
To the extent that the applicant states the Tribunal “overlooked” the fact that the sponsor and the child with were his superannuation beneficiaries, this cannot be sustained. The Tribunal acknowledged this at [43] – [44]. To the extent that the applicant says that it was “mystifying” the Tribunal did not consider this as “significant”, it was a matter for the Tribunal as to what weight it gave the evidence: Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 at [27].
At [44] the Tribunal expressly acknowledged that evidence about superannuation beneficiaries may, in some cases, indicated a genuine relationship. However, in the applicant’s case, having regard to all of the evidence (and in particular deficiencies in the other evidence before the Tribunal), the Tribunal was not satisfied that it did so here. That was a finding open to be made and cannot be “mystifying”
It was also submitted that under relevant family law legislation, the existence of superannuation would be considered to be a “joint asset”.
The First Respondent’s submissions
The first respondent accepts, as did the Tribunal, that the applicant and his sponsor were legally married. That being the case, in accordance with the Regulations, the Tribunal then went on to examine a number of mandatory considerations set out in r 1.15A(2) of the Regulations. These included the financial aspects of the relationship, the nature of the household, the social aspects of the relationship and the nature of the person’s commitment to each other.
The Tribunal dealt with a financial aspects of the applicant’s relationship at paragraphs 15 to 18 of its decision. The Tribunal noted correctly that the parties did not own any major assets other than a joint bank account and they did not have any pooling of financial resources. This finding was consistent with the applicant’s evidence and the sponsor’s evidence. Critically, the Tribunal considered this material provided little insight in the couple’s shared expenses because the information did not identify who paid for which particular expense on what basis. The Tribunal noted that there was no independent information as to how rental household costs were shared although it did accept some invoices were issued in the joint names. The Tribunal did not accept that the party shared day-to-day expenses.
Consistent with the statutory requirements and r 1.15 of the Regulations, the financial documentation considered by the Tribunal formed part of a broader assessment. Contrary to the applicant’s submissions, the Tribunal rejected the contention that the parties shared household expenses because the evidence was insufficient to satisfy the Tribunal as to how the expenses are actually shared.
It was submitted that the applicant has failed to address why any alleged error upon which reliance is placed, is material, and therefore jurisdictional. The onus on the applicant is to do so: (see Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123).
Counsel for the first respondent submitted that the submission by the applicant, in regards to the superannuation entitlement of the applicant to the sponsor’s superannuation balance, is misconceived.
Firstly, the naming of the applicant by the sponsor creates no legal obligation on the superannuation fund, or, if it does, it is an obligation of the superannuation fund and not the applicant.
Second, the applicant’s naming on a non-binding basis was no more than evidence, which the Tribunal could have regard to but was it not mandatory by the Tribunal to refer to it. There is no requirement to refer to each piece of evidence; (see He v Minister for Immigration and Border Protection (2017) 255 FCR 41 at [83]).
Thirdly, while it is not in dispute, the Tribunal did not make explicit reference to that piece of evidence, it was addressed in a more general consideration of the financial aspects of the applicant and the sponsor. It is submitted that the correct inference is that the Tribunal did not consider it to be of sufficient cogency in the context of the broader questions to be assessed.
Fourthly the cases referred to in the applicant’s supplemental submissions deal with family law issues in relation to superannuation. There is no binding authority as to the impact of superannuation in the present context, it is simply a piece of evidence to be assessed in relation to the entirety of the financial aspects of the parties’ relationship.
Consideration
The discursive and narrative nature of both the initial grounds of review and the written submissions filed by the applicant appeared to be more a disagreement with the findings and conclusions of the Tribunal. To a very large extent, they simply invited this Court to undertake merits review which the Court cannot undertake: (see Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [53]-[54]). It was for this reason the matter was adjourned and Orders made for a recasting of the grounds of judicial review.
The single ground contained within the further amended application does not contain any particulars. A lack of particulars is of itself sufficient for a matter to be dismissed as a bland assertion: (see WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35]).
The lack of particulars made it initially difficult for the Court to engage with the complaints raised in a meaningful way. Notwithstanding this, the Court has dealt with the issues as they appear to have been raised.
The task of assessing whether two people have a mutual commitment is impressionistic and evaluative. The presence or absence of a particular circumstance does not necessarily mean that a marriage is or is not genuine. The fact that the parties are legally married is not a determinative issue in relation to whether or not an applicant will meet the term “spouse” as s 5F of the Act provides a definition which is narrower than its ordinary meaning; (see He v Minister for Immigration and Border Protection (2017) 255 FCR 41). An applicant bears the onus of identifying any error in the Tribunal’s decision and demonstrating that it constitutes jurisdictional error (see Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [187]).
The task that the Tribunal was required to undertake was to consider the evidence provided by the applicant and his sponsor to determine whether or not, as people who were validly married, they had “a mutual commitment to share life as husband and wife” and have a relationship that is “genuine and continuing” and who lived together or “did not live separate and apart on a permanent basis”; (see s 5F(2) (a) – (d) of the Act). In so doing the Tribunal is required to consider all the circumstances of the relationship including the matters set out in r 1.15A(3) of the Regulations, including the “financial aspects of the relationship”, the “nature of the household”, the “social aspects of the relationship” and the “nature of the person’s commitment to each other” : (see r 1.15A(3)(a)-(d) of the Regulations).
In relation to the financial aspects, the Tribunal was required to consider five matters under r 1.15A(3)(a) of the Regulations. They were; any joint ownership of real estate or any other major assets; any joint liabilities; the extent of any pooling of financial resources especially in relation to major financial commitments; whether one person in the relationship owes any legal obligations in respect of the other and the basis of sharing of day to day household expenses.
The Tribunal dealt with each of the aspects of the relationship as required by the Regulations. In relation to financial aspects, the Tribunal noted that the parties did not own any major assets other than a joint bank account and they did not appear to have any pooling of the financial resources. The Tribunal considered that the material provided little insight into the couple’s shared expenses at paragraph 16 of its decision and noted there was no independent financial information as to how household expenses were shared. The Court is satisfied that the Tribunal did consider all of the documentation and material provided.
The Court rejects the claim made by the applicant’s Counsel that the failure to directly refer to the superannuation evidence that was before it was a significant oversight such as to constitute jurisdictional error. The superannuation evidence related to a single aspect of the financial situation of the applicant and his sponsor. It related to a relatively small amount of money that is in the sponsor’s superannuation account and a non-binding death benefit direction. The Tribunal went into significant detail in relation to other financial matters.
Further, the Court agrees with the submission of Counsel for the first respondent that the information provided in relation to the non-binding superannuation direction was not relevant to the issue of whether the parties had any legal obligation to the other: (see r 1.15A(3)(a)(iv) of the Regulations). It was explicit in the superannuation statement provided, that the direction to pay the applicant a benefit in the event of the death of the sponsor would be considered but the trustee was not bound to follow it (see CB 608). Accordingly, no legal obligation was created. This was also in circumstances where the parties did not have wills which may have given further weight to any conclusion in favour of the applicant.
The Court is satisfied that it was unnecessary for the Tribunal to make a finding on that particular matter because it was subsumed in findings of a greater generality as regards the other financial aspects of the relationship: (see Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at [47]).
The weight to be given to various pieces of evidence is entirely a matter for the Tribunal in its fact-finding exercise. Jurisdictional error will only arise where the conclusion of the Tribunal is one where there is either no evidence to justify the conclusion or the conclusions reached on a jurisdictional fact are illogical or irrational. A finding that reasonable minds might differ on is not illogical or irrational, even if a reviewing Court might come to a conclusion that one particular outcome is to be preferred to another possible conclusion: (see Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [131]).
The failure to refer to this one small aspect of the overall evidence, given the Tribunal’s findings in relation to the other aspects of whether or not there was a spousal relationship, with which no issue is taken by the applicant, are such that it was open to the Tribunal to come to the conclusion that it did, that it was not satisfied that a spousal relationship existed.
No jurisdictional error arises.
Conclusion
Accordingly, the application is dismissed.
I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Judge Humphreys
Deputy Associate:
Date: 30 October 2020
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