Nguyen v Minister for Immigration
[2010] FMCA 847
•10 November 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NGUYEN v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 847 |
| MIGRATION – Alleged jurisdictional error – whether Tribunal applied discretionary criteria as if they were mandatory – alleged misconstruction of regulation 1.15A – alleged failure to make enquiries – errors not affecting outcome of application. |
| Migration Regulations 1994, reg.1.15, 1.15A, 1.15A(4) |
| Minister for Immigration and Multicultural Affairs v Yusuf (2001) CLR 323 Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 MZXSA v Minister for Immigration and Citizenship [2010] FCAFC 123 |
| Applicant: | THA THI NGUYEN |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 1641 of 2009 |
| Judgment of: | Burchardt FM |
| Hearing date: | 27 September 2010 |
| Date of Last Submission: | 27 September 2010 |
| Delivered at: | Melbourne |
| Delivered on: | 10 November 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr C. Horan |
| Solicitors for the Applicant: | Koenig & Simons |
| Counsel for the Respondents: | Mr R. Knowles |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The application be dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $9,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1641 of 2009
| THA THI NGUYEN |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for review of a decision of the Migration Review Tribunal (“the Tribunal”) dated 12 November 2009. The applicant is the sponsor of a visa applicant, Ms Yen Thi Nguyen, together with her three children.
To avoid confusion I will refer to the applicant for review as the “sponsor” and the visa applicant as the “applicant.” Technically, of course, there are four visa applicants but since the three children stand or fall by their mother’s application, it will not be necessary to refer to them further.
Numerous criticisms are made of the Tribunal’s decision, however, for the reasons that follow, I think that the application must be dismissed.
Background
The applicant was born in Vietnam in 1964. Her residential address is in Ho Chi Minh City and she is divorced. Her former spouse lives in My Long, in Tra Vinh Province.
It is common cause that the applicant’s parents are deceased and that all six of her siblings live in Australia.
Her former husband’s parents and nine siblings all live in Vietnam.
The applicant and her husband divorced on 29 December 2006 and the divorce decree states that each retained one of the two properties to which I have referred. The applicant retained the property in Ho Chi Minh City and her former husband retained the My Long house.
The applicant filed her application for a visa to join her siblings in Australia, sponsored by one of her siblings, on 30 January 2007.
Thus far, the facts asserted are uncontroversial and are taken from the reasons for decision of the Tribunal at CB225 to 226.
The decision of the delegate
The applicant’s application was considered by a delegate of the Minister, in Ho Chi Minh City, and the decision record is dated
14 April 2008 (see CB160 to 164).
The delegate viewed the application with some hesitation because, as stated at paragraph 2.7 of the decision record:
“It is the experience of this office that family compositions are frequently tailored to suit the circumstances of an application. In particular, it is not uncommon for applicants to legally divorce in an attempt to meet the definition of remaining relative while continuing to live in a spousal relationship. Given the fact that the applicant and her former husband had divorced just one month before the lodgement of this application, consideration was given as to whether the applicant is permanently separated from (former husband) and whether the parties are living separately and apart on a permanent basis.”
The delegate’s decision went on to set out a number of pieces of information obtained by telephone calls and site visits, both in Ho Chi Minh City and in My Long. At paragraph 2.16, the delegate found:
“I find that the applicant has given inconsistent and misleading information regarding her contact with her former husband, that her divorce is not generally recognised in the area where she or her former husband are claimed to reside, that she has not either prior to or since divorce separated her financial affairs from her former husband and that her former husband still has his name registered for the telephone account of the home where the applicant and her children live.”
At paragraph 2.17 the delegate continued:
“… based on the above information it is evident that the applicant and (former husband) live together as spouses and are acknowledged in their community as spouses.”
The delegate went on, therefore, to find that the applicant was not a remaining relative of the sponsor.
The conduct of the application to the Tribunal
The sponsor applied to the Tribunal to review the decision of the delegate and acknowledgment of the application was made on 9 July 2008 to the sponsor’s immigration advisor. It should be noted that the sponsor was represented at all stages of the Tribunal process.
On 14 July 2009 the Tribunal sent the sponsor, via her agent, a section 359A letter in which reference was made to a number of matters that might be the reason, or part of the reason, for affirming the decision under review (CB171 to 172). That letter was replied to, by the agent, on 5 August 2009 and a substantial amount of material was sent with that reply (CB173 to 206).
On 13 August 2009 the Tribunal wrote to the agent inviting the sponsor to appear at the hearing (CB209 to 210). The response to hearing invitation is at CB211 to 212 and it should be noted that, on CB212, in response to the indication “I/We request that the Tribunal take oral evidence from another person,” the boxed marked “No” was ticked.
Thereafter, under cover of a letter from the agent dated 4 November 2009 a two-page document from the applicant in Vietnam was forwarded to the Tribunal member, being a letter dated 21 October 2009 (CB217 to 219).
The Tribunal’s decision was, as I have indicated earlier, given on
12 November 2009.
The issues raised by the sponsor
The sponsor’s case has been the subject of amendment from time to time and various aspects of the applications were not ultimately pressed. It is convenient and appropriate to deal with the criticisms made of the Tribunal’s decision in the characterisation that counsel adopted at the hearing before the Court, and in the same order.
Failure of the Tribunal accurately to construe or apply Regulation 1.15A
Three criticisms were made of the Tribunal in this regard. It is appropriate to set out the relevant portions of Regulation 1.15 in order that the competing arguments can be understood:
“1.15.21 Criteria to be satisfied at time of application. 1.15.21(1) The applicant is a remaining relative of an Australian relative of the applicant. (2) In this clause, “Australian relative,” in relation to an applicant, means a relative who is an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen.
1.15.22 Criteria to be satisfied at the time of decision. 1.15.22(1) The applicant continues to satisfy the criteria in clause 1.15.21(1).
1.15 Remaining relative (1) an applicant for a visa is a remaining relative of another person who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen if the applicant satisfies the minister that:
(a) the other person is a parent, brother, sister, step parent, step brother or step sister of the applicant; and
(b) the other person is usually resident in Australia; and
(c) the applicant and the applicant’s spouse (if any) have no near relatives, other than near relatives who are (usually resident in Australia).”
The definition of “spouse,” for the purposes of the regulations at the time of the application for the visas, is set out in regulation 1.15A:
“1.15A Spouse
(1) For the purposes of these Regulations, a person is the spouse of another person if the 2 persons are:
(a) in a married relationship, as described in sub-regulation (1A);
or
(b) in a de facto relationship, as described in sub-regulation (2).
(1A) Persons are in a married relationship if:
(a) they are married to each other under a marriage that is recognised as valid for the purposes of the Act, and
(b) the Minister is satisfied that:
(i) they have a mutual commitment to a shared life as husband and wife to the exclusion of all others; and
(ii) the relationship between them is genuine and continuing; and
(iii) they
(A) live together; or
(B) do not live separately and apart on a permanent basis;
(2) Persons are in a de facto relationship if:
(a) they:
(i) are of opposite sexes; and
(ii) are not married to each other under a marriage that is recognised as valid for the purposes of the Act; and
(iii) are not within a relationship that is a prohibited relationship for the purposes of subsection 23B (2) of the Marriage Act 1961; and
(b) they are of full age; that is:
(i) if either of the persons is domiciled in Australia – both of them have turned 18; or
(ii) if neither of the persons is domiciled in Australia – both of them have turned 16; and
(c) the Minister is satisfied that:
(i) they have a mutual commitment to a shared life as husband and wife to the exclusion of all others; and
(ii) the relationship between them is genuine and continuing; and
(iii) they:
(A) live together; or
(B) do not live separately and apart on a permanent basis; and
(d) subject to paragraph (e) and sub-regulation (2A), where either of them is an applicant for a permanent visa, a Student (Temporary) (Class TU) visa, a Partner (Provisional) (Class UF) visa, or a Partner (Temporary) (Class UK) visa – the Minister is satisfied that, for the period of 12 months immediately preceding the date of application of the party relying on the existence of the relationship:
(i) they had a mutual commitment to a shared life as husband and wife to the exclusion of all others; and
(ii) the relationship between them was genuine and continuing; and
(iii) they had:
(A) been living together; or
(B) not been living separately and apart on a permanent basis; and
(e) where either of them is an applicant for a Resolution of Status (Residence) (Class BL) or Resolution of Status (Temporary) (Class UH) visa – the Minister is satisfied (unless the applicant can establish compelling and compassionate circumstances for the grand of the visa) that, for the period of 12 months immediately preceding 13 June 1997:
(i) they had a mutual commitment to a shared life as husband and wife to the exclusion of all others; and
(ii) the relationship between them was genuine and continuing; and
(iii) they had:
(A) been living together; or
(B) not been living separately and apart on a permanent basis.
(2A) Paragraph 2 (d) does not apply if:
(a) the applicant is applying as:
(i) the spouse of a person who:
(A) is, or was, the holder of a permanent humanitarian visa; and
(B) before that permanent humanitarian visa was granted, was in a relationship with the applicant that satisfies the requirements of subparagraphs (2) (c) (i), (ii) and (iii) and of which Immigration was informed before the visa was granted; or
(ii) a member of the family unit of a person who is an applicant for a permanent humanitarian visa; or
(b) the applicant can establish compelling and compassionate circumstances for the grant of the visa.
Note permanent humanitarian visa is defined in regulation 1.03.
(3) In forming an opinion whether 2 persons are in a married relationship, or a de facto relationship, in relation to an application for:
(ad) a Partner (Migrant) (Class BC) visa; or
(ae) a Partner (Provisional) (Class UF) visa; or
(af) a Partner (Residence) (Class BS) visa; or
(ag) a Partner (Temporary) (Class UK) visa;
the Minister must have regard to all of the circumstances of the relationship, including, in particular:
(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 party to the relationship owes any legal obligation in respect of the other; and
(v) the basis of any sharing of day-to-day household expenses;
(b) the nature of the household, including:
(i) any joint responsibility for care and support of children, if any; and
(ii) the parties’ living arrangements; and
(iii) any sharing of responsibility for housework;
(c) the social aspects of the relationship, including:
(i) whether the persons represent themselves to other people as being married or in a de facto relationship with each other;
(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;
(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) In forming an opinion whether 2 persons are in a married relationship, or a de facto relationship, in relation to an application for a visa of a class other than a class specified in paragraph (3) (ad), (ae), (af) or (ag), the Minister may have regard to any of the factors set out in sub-regulation (3).
(5) If 2 persons have been living together at the same address for 6 months or longer, that fact is to be taken to be strong evidence that the relationship is genuine and continuing, but a relationship of shorter duration is not to be taken not to be genuine and continuing only for that reason. “
There was some debate before me as to the extent to which the net effect of the regulations was to put any burden of proof, or onus, upon the applicant. The first respondent’s submissions laid stress upon the introductory words of regulation 1.15, which require the applicant to satisfy the Minister. Counsel for the applicant submitted that state of satisfaction did not apply to the question as to whether or not the relationship of husband and wife (or de facto) had, in fact, ceased.
In the ultimate, in my view, nothing turns on this aspect of the dispute, for reasons which I hope will become clear.
The Tribunal’s mistake in relation to Regulation 1.15A(3) and (4)
Counsel for the applicant submitted that the Tribunal fell into error because it treated the consideration of the vital issue as to whether or not the applicant was still in a spousal relationship as though Regulation 1.15A(3) applied and had mandatory effect. That sub-regulation requires the Minister to have regard to all the matters set out in it, in forming an opinion whether two persons are in a married relationship or a de facto relationship. Nonetheless, that sub-regulation is limited in its application to the visas described in it. It is common cause that the sort of visa for which the applicant applied is not one of them.
Accordingly, sub-regulation 1.15A(4) applies, which reads:
“In forming an opinion whether 2 persons are in a married relationship, or a de facto relationship, in relation to an application for a visa or of a class other than a class specified in paragraph (3)(ad), (ae), (af) or (ag), the Minister may have regard to any of the factors set out in sub-regulation (3).”
I think that the applicant’s submission in this regard is correct. It is clear from paragraph 39 of the Tribunal’s reasons for decision, and indeed the reasons as a whole (CB230), that the Tribunal did regard regulation 1.15A(3) as imposing a mandatory series of considerations. This was wrong because plainly, as was in the ultimate effectively conceded by counsel for the Minister, the class of visa with which the Tribunal was concerned was not one to which regulation 1.15A(3) applied.
Nonetheless, I accept the submissions of the first respondent that in the ultimate, this error made no difference. When one reads the Tribunal’s reasons for decision as a whole, it is not possible to point to any difference of outcome that might have obtained had the Tribunal regarded the matters set out in regulation 1.15A(3) as being of discretionary application, rather than mandatory application. None of the matters the Tribunal considered (and there were a number in respect of which it made no findings) were matters inappropriate to be considered in the context of the application that was put. The critical issue was whether or not the applicant was at the time of application still in a spousal relationship, and all the matters to which the Tribunal adverted were plainly matters properly relevant to consideration of this matter. There is nothing in the submissions or materials provided by the sponsor that raise matters which did not fall within the operation and scope of regulation 1.15A(3) and there is nothing that leads me to conclude that the Tribunal’s error, for such it was, made any difference whatever to the outcome. This, of course, is fatal to this ground (see Minister for Immigration and Multicultural Affairs v Yusuf (2001) CLR 323 at [82]).
Tribunal’s failure to apply sub-regulation 1.15A(2)(d)
Here the sponsor submitted that the Tribunal had failed to have regard to regulation 1.15A(2)(d) which required the Tribunal to be satisfied of the matters specified therein for the period of 12 months immediately preceding the date of visa application.
It is of course true that the Tribunal did not in terms express a finding that the applicant was in a spousal relationship for 12 months immediately preceding the date of application, and made no findings expressly governing the matters contained in sub-regulation (d)(i) to (iii) inclusive.
Nonetheless, I think the Minister is correct to submit that a fair reading of the Tribunal’s reasons for decision makes it clear that the Tribunal did so find.
Reality is that the Tribunal was faced with an assertion by the applicant that her divorce was genuine and that thereafter she had not been in a spousal relationship with her former husband. The Tribunal found roundly to the contrary. At paragraph 48 (CB231) the Tribunal said:
“Having considered all the evidence, the Tribunal finds that the applicant and her ex-husband still have a mutual commitment to a shared life as husband and wife to the exclusion of all others, that they have a genuine and continuing relationship, and they either live together or do not live separately and apart on a permanent basis. They are therefore spouses within the Regulations.”
That paragraph was, of course, expressed in terms of the time of decision, which is of course also required to be satisfied. But in the context of the way the decision is framed as a whole, it is clear that the Tribunal found, as a fact, that the applicant and her former spouse had remained in a spousal relationship throughout, notwithstanding their divorce. Temporally, this clearly covers both the time of decision and the 12 months before the application (they were only divorced in December 2006 and the application was made in January 2007). In my view, this ground cannot be sustained.
An erroneous finding pursuant to Regulation 1.15A(5)
Here, at paragraph 47, the Tribunal found (CB231):
“With regard to the nature of the parties’ commitment to each other, the Tribunal is satisfied, based on the discussion at paragraph 46 above, that the applicant and her husband have been living together at the same addresses for six months or longer. This fact is to be taken to be strong evidence that the relationship is genuine and continuing.”
Here the sponsor submitted that the Tribunal did not make any finding about cohabitation having continued for six months. It was submitted that the finding could not be made where the parties were living at different addresses at the same time. It was also submitted that there was no evidence before the Tribunal to support a finding that the applicant and her ex husband had been living together, at the Ho Chi Minh City house and the My Long house, for a period of six months or longer.
The first respondent pointed to the nature of the case put forward by the applicant. It is correctly paraphrased at paragraph 42 of the Tribunal’s reasons for decision (CB231):
“The nature of the household is disputed. The couple are legally divorced and the applicant is registered as living in the HCMC house while her husband is registered as living in the My Long house. The applicant claimed she did not go to My Long at all since separating from her husband in early 2006 except to make arrangements in relation to their common assets. She also said that after applying for a divorce her husband had never been to the HCMC house, and that he maintained contact with the children independently of her.”
The Tribunal went on to record the various remarks made to the investigator employed by the delegate which contradicted that assertion. The Tribunal, in substance, accepted those earlier assertions despite later retractions, (see paragraph 45, reasons for decision).
In my view, sub-regulation (5) can cover circumstances where two people have been living together at more than one address. So much follows from the Acts Interpretation Act. It also in my view is only common sense. Two people who are living together, but who move around from time to time, to more than one address, are still plainly living together.
The difficulty here, however, is that even on the Tribunal’s own appreciation of the facts, the applicant and her former husband did not live together at the same address all of the time. So much is clear from paragraph 43 of the reasons for judgment:
“The spontaneous evidence of almost all of these people was that the applicant and her husband were living together and dividing their time between their two households, although they did not always move in unison – i.e. it appeared the husband spent more time in My Long and that the applicant spent more time in HCMC where the children were committed to school.”
In my view, that characterisation of the evidence was correct. As a matter of ordinary interpretation, two people cannot be living together at the same address for six months if, in fact, during periods of time within that six months they are not, in fact, living at the same address.
It, therefore, follows that the Tribunal misunderstood the application of the Regulation as the sponsor asserts.
Nonetheless, and once again applying Yusuf, I do not think that this error influenced the outcome. The critical issue that the Tribunal was required to determine was whether or not the applicant and her former husband were in a spousal relationship. The finding that the Tribunal made about this was, in my view, properly open to it on the materials as the Tribunal stated them. I do not think that that conclusion is vitiated by the Tribunal’s misunderstanding of the regulation. On the materials as described, it was in my view well-open to the Tribunal to conclude that the applicant was still in a spousal relationship and that conclusion is not affected by the Tribunal’s misunderstanding of the sub-regulation.
Alleged breach of Section 359A of the Act
Here the complaint made relates to the failure of the Tribunal to mention in the section 359A letter, already referred to, the following extract taken from paragraph 17 of the Tribunal’s reasons for decision (CB226):
“The local warden was called – he said that the couple had a quarrel a few months before, the husband left for his home town and the applicant was currently also absent.”
That site visit and phone call took place on 25 June 2007.
It is clear that the Tribunal did not give the applicant clear particulars of that information, nor invite comment on it. It was submitted that the information about the call to the local warden in Ho Chi Minh City clearly formed part of the Tribunal’s reason for affirming the decision under review.
That submission was founded upon the following passage, in paragraph 43 of the Tribunal’s reasons for decision (CB231):
“However, several people (officials and residents, and a vendor) were spoken to in HCMC and in Tra Vinh between June and October 2007 which is long after the couple supposedly separated. The spontaneous evidence of almost all of these people was that the applicant and her husband were living together and dividing their time between their two households, although they did not always move in unison …”
It was submitted by the sponsor that the information provided by the local warden was part of the spontaneous evidence referred to by the Tribunal and, therefore, the Tribunal fell into jurisdictional error by failing to mention it.
Counsel for the first respondent submitted that the Tribunal, in the section 359A letter, did in fact set out all the information upon which it relied. The Ho Chi Minh City warden was clearly not referred to.
If one looks at the Tribunal’s reasons for decision, which of course draw upon the delegate’s earlier decision, the following people were those who gave some sort of information.
a)A vendor next door to the HCMC house who said, on 25 June 2007, that the applicant lived there with her husband and their three children and that they had returned to their provincial home town (paragraph 17 Tribunal’s reasons).
b)The local warden – he said that the couple had a quarrel a few months before, the husband left for his home town and the applicant was currently also absent (paragraph 17 Tribunal’s reasons).
c)The Tra Vinh warden – the person who picked up the phone said the applicant, her spouse and children had gone to HCMC and that the spouse or applicant and children come back to Tra Vinh for a few days sometimes (paragraph 18 Tribunal’s reasons).
d)Telephone operator who confirmed the applicant’s phone number was in the name of her spouse (paragraph 19 Tribunal’s reasons).
e)The warden of My Long – whose wife said that the applicant had a house in HCMC but that the applicant and her spouse had kept the house in My Long, and that the spouse stays there currently to look after it, but the applicant and children visit regularly, every week or two weeks, and that she last saw them about 10 days previously (paragraph 20 Tribunal’s reasons).
f)A site visit to My Long on 23 October 2007, when a group of ladies near the house said the family had gone to HCMC and the warden said that in 2006 the husband returned alone but at other times they had come back together. The warden said they came back earlier in 2007 and stayed together at the house, without the children. The deputy warden also said that the couple had been there a few months ago with the children and that they divide their time between the two places and that the children go to school in HCMC (paragraph 21 Tribunal’s reasons).
In my view, the Tribunal’s characterisation of the evidence at paragraph 43 is entirely accurate and, at the very least, certainly open to the Tribunal. The last persons concerned did indeed say that the applicant and her former husband were living together.
Furthermore, the warden’s statement to which reference was made by the sponsor in submissions was not expressed as a matter upon which the Tribunal relied and indeed one would reasonably infer that the person who was not part of the “almost all” group was, indeed, that warden. As counsel for the first respondent in my view correctly submitted, the assertion that:
The couple had a quarrel a few months before, the husband left for his home town and the applicant was currently also absent -
is clearly, at best, equivocal. I agree with counsel for the first respondent that the better characterisation of that evidence was that it supported the wife’s assertion that she was separated from her husband. However, it was outweighed as the Tribunal found by all the other people.
Failure to obtain evidence
Here it was submitted first, that the Tribunal should have expressly requested and/or given an opportunity to the applicant to appear before the Tribunal and secondly, that in any event, the failure to do so meant that the information upon which the Tribunal relied was wildly out of date by the time of decision. It was put that the evidence that the applicant might have given would have been critical to any finding whether she remained in a spousal relationship with her husband at the date of decision. It was also submitted that this was highly relevant to any assessment whether the applicant was in a relationship with her ex husband at the date of application (applicant’s further submissions, paragraph 11).
In the light of the High Court’s decision in Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 at [25], there must be doubt as to the extent of the obligation of the Tribunal to make such inquiry. The High Court said:
“Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case.”
On any view, the duty to inquire is not an absolute one. It is limited to the sort of circumstances indicated by the High Court in the paragraph quoted above.
Here I accept the submissions for the Minister. As was found to be the case in SZIAI, at [26], further inquiry would not have revealed anything different. It is to be supposed that the applicant would have repeated the matters she had already set out in her materials.
Furthermore, as counsel for the first respondent correctly submits, the applicant was represented at all times and her representative expressly ticked the boxes suggesting that there was no desire to call the applicant in the response to invitation to a hearing already referred to.
In my view, the Tribunal’s failure to obtain the material referred to was not unreasonable in the circumstances and did not constitute jurisdictional error.
Furthermore, while it is true that further information might conceivably have impacted at the time of decision, it would have no effect upon the time of application decision in any event and the application would be doomed to fail on that footing, if on no other.
A further matter raised in this regard was what was said by the applicant to be the no evidence ground. It was submitted that there was no evidence whatever to support any finding that the applicant and her ex husband were in a spousal relationship at the time of decision on
13 November 2009. This was because, of course, there was no direct evidence as to anything after October 2007.
I accept the submission from the Minister in this regard. There was evidence that the applicant was in a spousal relationship with her ex husband in October 2007, over 10 months after her divorce. For the Tribunal to infer, as it clearly must have, that that continued to be the situation through to the present time was in the circumstances entirely permissible. In any event, as I have just said, the applicant was doomed to fail the time of application decision.
Unreasonableness
The applicant submitted that the Tribunal’s finding that the applicant and her ex husband were in a spousal relationship was simply so unreasonable that no Tribunal could have made it. I accept that a decision may be affected by jurisdictional error, where it is irrational, illogical and not based on findings, or inferences of facts, supported by logical grounds (see MZXSA v Minister for Immigration and Citizenship [2010] FCAFC 123 at [42] and the matters set out at [43] – [45]).
It was submitted that there was simply no room for a rational decision-maker to find that there was an ongoing spousal relationship on the basis of the various second-hand accounts from departmental officials and vendors and the like.
Nonetheless, I accept the submissions from the Minister. The Tribunal had contemporary evidence given by a vendor, the Tra Vinh warden, the warden at My Long and the deputy warden, all of which supported the conclusions at which the Tribunal arrived.
The Tribunal, as I have earlier said, did not mistake this evidence.
While minds might have legitimately differed as to the outcome, the fact is that the Tribunal was entitled to have regard to the inquiries made by the department in Vietnam and the decision it reached was not in my view one that no reasonable decision-maker could have reached.
Conclusion
Accordingly, although some of the criticisms advanced by the applicant are indeed made out, in the ultimate no error was made that in any way affected the ultimate outcome of the application and the application therefore must be dismissed with costs.
I certify that the preceding sixty-six (66) paragraphs are a true copy of the reasons for judgment of Burchardt FM
Date: 10 November 2010
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