Nguyen v Minister for Immigration
[2007] FMCA 1251
•1 August 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NGUYEN v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1251 |
| MIGRATION – Migration Review Tribunal – status – marital status – visa – permanent entry visa (spouse). |
| Migration Act 1958 Migration Regulations |
| Ansett Transport Industries (Operations) Pty Ltd v Wraith (1983) 48 ALR 500 Avon & Downes Pty Ltd v Commissioner of Taxation (1949) 78 CLR 353 Bretag v Milgea (unreported Federal Court of Australia, Lachlan J, 29 November 1991) Chi v Minister for Immigration & Multicultural Affairs (1988) 84 FCR 14 Minister for Immigration & Ethnic Affairs v Wu Shan & Liang (1996) 185 LR 259 Minister for Immigration & Multicultural Affairs v Rajalingam [1999] FCA 719 MIMIA v Yusef (2001) 206 CLR 323 Phan v Minister for Immigration & Anor (2007) FMCA 88 Rivers Radio Pty Ltd v ABT (1989) 22 FCR 437 R.V. Australian Stevedoring Industry Board: Ex Parte in Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100 Tran v MIMIA (2006) FCA 1229 |
| Applicant: | NHUT HONG NGUYEN |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File number: | BRG 9 of 2007 |
| Judgment of: | Burnett FM |
| Hearing date: | 27 June 2007 |
| Delivered at: | Brisbane |
| Delivered on: | 1 August 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr S. Nguyen |
| Solicitors for the Applicant: | Southside Lawyers |
| Counsel for the Respondent: | Mr M. Brady |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
That the Application be dismissed.
That the Applicant pay the Respondents’ costs of an incidental to the application to be assessed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRG 9 of 2007
| NHUT HONG NGUYEN |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
In this proceeding Nhut Hong Nguyen (the Applicant) “applies for an order that the Respondent (sic) shows cause why a remedy should not be granted in exercise of the Court’s jurisdiction under section 476 of the Migration Act 1958 in respect of a decision made 13 November 2006”.[1] The decision in question was a decision of the Migration Review Tribunal (the Tribunal) following its review of a decision of the delegate of the Minister for Immigration and Citizenship (the Minister) made on 1 July 2005 refusing the Applicant’s application to grant him a Partner (Migrant) class BC visa.[2]
[1] Amended application filed 22June 2007.
[2] The Federal Magistrates Court Rules, Part 4 permits an application to show cause to be disposed of summarily: FMCR44.05 and show cause hearing FMC44.12.
In the amended application five grounds were identified, they being:
a)the Tribunal fell into jurisdictional error in that it denied procedural fairness to the Applicant as well as acted in breach of its obligations under section 359A of the Migration Act (the Act) in drawing an inference upon the basis,
i)that there was “little reliable documentation” provided without particularising the same or affording the Applicant an opportunity to provide comment or explanation; and
ii)drawing an inference that “since there has been little reliable evidence of spousal relationship prior to 2005” any documentation subsequently provided was “deliberately obtained” and accordingly there was no basis for making such statement.
b)The Tribunal fell into jurisdictional error in that it failed to take into account relevant material considerations and in particular:
i)evidence given by the father in support of the application;
ii)it refused to accept explanations without legal basis or reasonable justification; and
iii)it did not express any indications as to whether or not it had considered two videos tendered in evidence.
c)The Tribunal fell into error in that it misinterpreted the law or failed to apply the law relevant to the application in that it misapplied Regulation 1.15A of the Migration Regulations by adopting an investigative role which thereby is alleged to have set up a “much higher standard for the Applicant to then disprove such facts or evidence [that the Tribunal regarded] of concern”.
d)The Tribunal breached section 368(1) of the Act by not expressing any finding or reason for its “ultimate conclusion”.
e)The Tribunal’s decision was an unreasonable decision because no reasonable decision maker could have come to the same conclusion particularly because,
i)it did not examine the two home videos;
ii)it contradicted itself by stating on the one hand that evidence was not sufficient and on the other hand when evidence was provided it was said to have been “created”; and
iii)it gave too much weight to irrelevant considerations and insufficient weight to “crucial evidence”.
Background Facts
The Applicant was born on 6 August 1971 in Saigon, Vietnam. His lawful wife, the sponsor, Linh Thi Truc Nguyen was born on 15 May 1979 and became an Australian citizen in 1992. The Applicant and the sponsor met in Vietnam in 1998 and commenced a relationship in early 2000. They were married on 4 April 2000.
On 22 May 2000 the Applicant applied for a Partner (Provisional) Class UF (sub class 309) visa and Partner (Migrant) (Class BC) visa. On 17 May 2001 a decision was made the Minister’s delegate not to grant the Applicant a Partner (Provisional) (Class UF) (Sub class 309) (Spouse) visa. That matter was subject to review by the Tribunal on 21 August 2002 following which the Applicant was granted a Partner (Provisional) (Class UF) (Sub class 309) (Spouse) visa on 14 November 2002. He entered Australia on this visa on 26 November 2002.
On 1 July 2005 the Minister’s delegate made a decision not to grant the Applicant a Partner (migrant) (class BC) visa. The Applicant lodged an Application for Review with the Tribunal on 26 July 2005. A hearing was conducted on 28 March 2006 and on 13 November 2006 the Tribunal, by its decision, affirmed the decision of the Minister’s delegate not to grant the Applicant a Partner (Migrant) (Class BC) visa.
In it’s decision the Tribunal concluded:
“The Tribunal is not satisfied that the Applicant is the spouse of the sponsor within the meaning of the r1.15A of the Regulations. The Tribunal is not satisfied that the Applicant satisfies the spousal requirement contained in both clauses r.100.221(2)(b) and 100.221(2)A(b) for a sub class 100 visa. Furthermore, the alternative provisions of clause 100.221(3) obviously do not apply and there is no suggestion in the claims or evidence that the alternative provisions contained in clause 100.221(4) apply. Neither is the alternative criterion in clause 100.221(4)A applicable in this case. Therefore, the Applicant does not meet the prescribed criterion contained in clause 100.221(1) and cannot be granted a sub class 100 visa”.
When the matter came on for hearing a number of the grounds which had been stated by the Applicant in his amended application were abandoned. At the hearing the Applicant pursued only grounds 4 and 5 of the amended application which grounds were introduced in the amended application.
Of those grounds the Applicant recast the grounds identified in his application at the commencement of the hearing and provided upon grounds being the decision made was,
a)in breach of s368(1) of the Migration Act 1958; and
b)unreasonable in that no reasonable decision could have been made.
Only these grounds were subject to submissions in the Applicant’s supplementary submissions filed by leave at the hearing. In his earlier submissions filed in accord with the Court’s directions, the Applicant only advanced substantive submissions on one point concerning the “what if I am wrong” test which I have dealt with in any event.
Relevant Legislation
Schedule 2 to the Migration Regulations
The content before the Tribunal revolved around the issue of whether or not the Applicant satisfied the definition of spouse as provided by Regulation 1.15A of the Migration Regulations 1994 and particularly whether they satisfied the matters required by sub-regulation (1A)(b).
Generally, schedule 2 to the Migration Regulations relevantly provides in respect of a Sub class 100 (Spouse) visa in clause 100.221 that, inter alia, the criteria to be satisfied at the time of the decision include “the applicant is the spouse of the sponsoring spouse”: clause 100.221(2)(B). The definition of spouse is provided for in Regulation 1.15A(1) which provides that a person is the spouse of another person if the two persons are, inter alia, in a married relationship as described in sub regulation 1(A). Sub regulation 1(A) provides that persons are in a married relationship if they are married to each other under a valid marriage 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;
B. do not live separately and apart on a permanent basis.”
Sub regulation 1.15(A)(3) provides that in forming an opinion whether two persons are in a married relationship in an application for such a 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; and
B. the nature of the household…
C. the social aspects of the relationship…
D. the nature of the persons’ commitment to each other…”
The Decision
After considering the relevant law the Tribunal turned to the evidence before it. The Tribunal had earlier correctly determined that the substantive factual issue to be determined by it was whether the Applicant was a spouse as defined by regulation 1.15A. It noted that in making that determination that the Tribunal was able to have regard to evidence of subsequent history as an aid to determine facts at an earlier point in time where that subsequent history tended to logically show the existence or non-existence of those facts: Bretag v MILGEA (unreported Federal Court of Australia, Lachlan J, 29 November 1991).[3]
[3] Migration Review Tribunal decision page 6 of the Respondents’ bundle of relevant documents.
After reciting the relevant chronology the Tribunal quickly disposed of the formal matter concerning the marriage of the Applicant and sponsor and turned to the factual issue for resolution namely whether they “have a mutual commitment to a shared life as husband and wife to the exclusion of all others, and whether their relationship is genuine and continuing”. Although there was no express finding that the parties “lived together”: Reg 1.15A(1A)(b)(iii), the matter was clearly considered. The Tribunal accepted the Applicant lived at the sponsoring spouses’ house. Any omission to deal with this issue was not material. The Tribunal was clear in its finding that the Applicant and the sponsoring spouse were in “a genuine spousal relationship”.[4] In respect of that matter the Tribunal noted that it had regard to “all of the circumstances of the relationship, including evidence of the financial and social aspects and the nature of the Applicant’s and review Applicant’s household and of their commitment to each other”.[5]
[4] Migration Review Tribunal decision at p 3.
[5] Respondents’ bundle of relevant documents at page 7.
In particular the Tribunal noted that in respect of the previous file (01/04960) there was nothing adverse contained on the file but there was little substantive evidence going to there being a continuing relationship from 2002. It was noted that despite requests for supporting information little reliable documentation was provided until 2005.
In additional the Tribunal noted that the Department conducted field tests in January 2004 and January 2005 which visits were discussed at the hearing and which apparently gave rise to a doubt that the “couple resided together at the Springfield address and were in a spousal relationship”. The Tribunal particularly examined evidence concerning the living arrangements of the Applicant (noting that whilst the Applicant claimed to live at the same address as the sponsor he also stayed overnight at a Aunt’s house on a regular basis). Concerning financial relations the Tribunal made observations that the Applicant and sponsor had not declared each other on their respective tax returns; the sponsor had purchased a family house in her own name; and there was little other evidence of “financial pooling”. Overall the Tribunal did not accept that the Applicant and sponsor were in a genuine spousal relationship.
The Tribunal proceeded to observe,
“The Tribunal acknowledges their claims that they have been together for six years and throughout that time have been kept waiting by the migration process. However, that lengthy period has given the couple plenty of time to consolidate their relationship and gather evidence to support their claims – yet despite this extensive period there is still quite limited evidence”.
In that regard the Tribunal expressly noted that it gave little weight to evidence that came into being after the delegate’s refusal.
Ground: Failure to take account of relevant material
At the hearing the only ground advanced in support of this contention was an allegation by the Applicant that the Tribunal failed to take into account two home videos showing family activities which videos were produced at the hearing.
As the Respondents submitted in their submissions the Applicant conceded in the amended application that there was no indication as to whether the Tribunal examined the videos or not. It follows that on the face of the Applicant’s own application there is no basis to conclude that the Tribunal failed to take account of relevant material. However as the Respondents submitted:
a)the Tribunal expressly referred in its decision to having received the home videos; it was part of the bundle of relevant documents at page 7, fourth last paragraph, last line.
b)the Tribunal acknowledged the evidence of the Applicant and his wife “undertaking some activities together and of there being some recognition by others”;[6]
c)the home videos did no more than show the Applicant and his wife undertaking some activities together but did not of themselves prove that they cohabitated as husband and wife as was submitted by the Applicant.
[6] Respondents’ bundle of relevant documents page 8 second last paragraph.
I accept the Respondents’ submission that a reading of the Tribunal’s decision taken as a whole clearly leads a conclusion that the videos were taken into account and constituted part of the “evidence of the couple undertaking some activities together” as was expressly acknowledged by the Tribunal.
Generally concerning the failure by the Tribunal to refer expressly to the videos I accept as correct the Respondents’ submissions that there was no obligation upon the Tribunal to set out and reach a conclusion in respect of each item of evidence but rather what was required was for the Tribunal to take account of each of the mandatory considerations in regulation 1.15A(3) drawing its conclusions.[7] The relevant inquiry by the Court of the Tribunal remains “whether the Tribunal has made an error of low, has failed to take account of relevant considerations, or has taken account of irrelevant considerations”.
[7] MIMIA v Yusef (2001) 206 CLR 323 at 348-349 (para [75]).
I consider that the Tribunal correctly considered each of the mandatory considerations in coming to its conclusion and that there is no basis to conclude that the Tribunal failed to take account of any relevant considerations. In particular I accept that there is no basis to conclude that the Tribunal failed to take account of the home videos particularly given its knowledge of the evidence of the couple undertaking activities together.
Section 368(1)
The Applicant submitted that the Tribunal’s obligation was to conduct a review of the decision of the delegate; section 348(1). In so doing the Tribunal had the authority to exercise all the powers and discretions that were conferred by the Act on the person who made the decision: section 349. It was submitted on the Applicant’s behalf that having made its decision the Tribunal was then obliged to prepare a written statement which set out:
a)the decision of the Tribunal on review;
b)its reasons for that decision;
c)the findings on material, questions of facts;
d)references to the evidence or and other material on which those findings of fact were based: section 368(1).
The Applicant submitted that the Tribunal did not in its reasons for decision set out the evidence or any other material on which the ultimate findings of fact which it concluded in relation to clause 100.221(2)(B) 100.221(2)(B) (spouse requirements) was based. It submitted that the Tribunal’s statement that “there is little reliable evidence of a spousal relationship prior to 2005 before the Tribunal” and that “this could be adverse as it may indicate the documents now provided have been deliberately obtained to support the application” gave rise to an unjust inference suggesting that evidence had been fabricated or tainted and that such an assertion by the Tribunal was “premised upon mere speculation”. It was submitted the Tribunal failed to provide reasons for supporting such an inference and ignored certain important relevant documents provided from 2005 onwards which it was submitted would otherwise prove the marriage was genuine and ongoing. Consequently the Applicant submitted the Tribunal exceeded its power by speculating and failed to exercise its discretionary power in ignoring the crucial evidence provided from 2005 onwards.
In addition it was submitted that in its decision the Tribunal stated there were various inconsistencies in (the Applicant’s and the sponsor’s) responses at interview which implied that the Tribunal was of the view that they were not being truthful or genuine in the application. It was complained that the member had failed to detail such inconsistencies and in that regard had not provided reasons as to why there were doubts. It was submitted that this too constituted a breach of the statutory requirements under section 368(1).
Section 368(1) relevantly provides:
“(1) Where the Tribunal makes its decision on a review, the Tribunal must, subject to paragraphs 375A(2)(b) and 376(3)(b), prepare a written statement that:
(a) sets out the decision of the Tribunal on the review;
(b) sets out the reasons for the decision;
(c) sets out the findings on any material questions of fact; and
(d) refers to the evidence or any other material on which the findings of fact were based.
As was correctly submitted by the Respondents the rational underlying a statutory duty to give reasons (as provided for by section 368 of the Act) was expressed by Woodward J in Ansett Transport Industries (Operations) Pty Ltd –v– Wraith[8] where His Honour said,
“Even though I may not agree with it, I now understand why the decision went against me. I am now in a position to decide whether that decision has involved an unwarranted finding of fact, or an error of law, which is worth challenging.”
[8] (1983) 48 ALR 500 at 507. See also Rivers Radio Pty Ltd –v– ABT (1989) 22 FCR 437 at 444; and Chi –v– Minister for Immigration and Multicultural Affairs (1988) 84 FCR 14.
The approach to be applied when reviewing reasons of an administrative decision maker are amply summarised in the Minister for Immigration and Ethnic Affairs –v– Wu Shan & Liang[9]. There the majority stated:
“When the Full Court referred to “beneficial construction”, it sought to adopt an approach mandated by a long series of cases, the best exemplar of which is Collector of Customs –v– Pozzolanic. In that case, a Full Court of the Federal Court collected authorities for various propositions as to practical restraints on judicial review. It was said that a court should not be concerned with looseness in the language…nor with unhappy phrasing of the reasons of an administrative decision maker. The Court continued: The reasons for the decision under review are not to be construed minutely and finally with an eye keenly attuned to the perception of error.
These propositions are well settled. They recognise the reality that the reasons of an administrative decision maker are meant to inform and not to be scrutinised upon over zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.”
[9] (1996) 185 CLR 259 at 271/2.
These remarks endorse the broad principle that a beneficial construction should be taken without undue regard to minute inadequacies, if any, in the decisions of administrative decision makers such as the Tribunal.
In that regard the reasons expressed by the Tribunal are not, in my view, open to fair criticism. The Tribunal made a factual finding that there is “little reliable evidence of a spousal relationship prior to 2005”. That finding was reasonably open to it. Its conclusion that “documents now provided have been deliberately claimed to support the application” attributed a cynical motive of evidence of documents that were subsequently produced. Again the matter, in my view, was one which was open upon the facts and did not constitute speculation in the manner suggested in the Applicant’s submissions. It was a proper inference available to be drawn from the facts. It was not speculation and was not in breach of the Tribunal’s obligations under section 348(1) of the Act.
Likewise the criticisms concerning alleged “inconsistencies” has no basis. As was submitted by the Respondents in their outline; the Applicant’s submission on this point is out of context. It is clear that the inconsistencies referred to in the decision of the Tribunal relate to inconsistencies apparent between records maintained of events preceding the delegate’s determination when compared to responses elicited during the course of field interviews conducted in January 2004 and in January 2005.
In my view this ground fails.
Unreasonable decision
The next ground advanced by the Applicant is that there was a failure by the Tribunal to comply with section 381(1) of the Act in that the Tribunal’s findings were unreasonable because no reasonable decision maker could have come to the decision on the basis expressed in its findings and reasons.
In Minister for Immigration –v– SGLB[10] Gummow and Hayne JJ stated:
“…The critical question is whether the determination was irrational, illogical, not based on findings or inferences of facts supported by logical grounds…. If the decision did display the defects, it will be no answer that the determination was reached in good faith…”.
[10] (2004) 207 ALR 12 at [20] – [38].
The approach submitted by the Applicant as illustrated in the decisions of Avon and Downes Pty Ltd –v– Commissioner of Taxation[11] and in R.V. Australian Stevedoring Industry Board: Ex Parte in Melbourne Stevedoring Co Pty Ltd[12] is distinguishable as they concern circumstances where written reasons had not been provided.
[11] (1949) 78 CLR 353 at 360.
[12] (1953) 88 CLR 100 at 117.
For the purposes of establishing jurisdictional error a decision can only be “unreasonable” if it involves a finding that in truth the power conferred by the statute has not been exercised so a jurisdictional error has occurred: Tran –v– MIMIA[13].
[13] (2006) FCA1229 at para [31].
In order to succeed in establishing that the Tribunal’s decision was unreasonable it is necessary for the Applicant to demonstrate that the Tribunal had no logical basis for its decision, or, in other words, that the decision was perverse.
From a review of the decision it is clear that there was indeed a logical basis for its decision. The decision was premised upon facts, findings in respect of those facts and inferences drawn from those findings. It cannot be said that in respect of any particular finding an inference so drawn that such was not available to the Tribunal.
In particular, in his submissions, the Applicant contended that it was not reasonable for the Tribunal to give little weight to evidence “that has been created after the hearing” being a reference to matters which occurred between the determination of the Delegate and the hearing by the Tribunal. That, however, was a matter open to the Tribunal. It cannot be criticised, in my view, for making an adverse finding and attributing a cynical motive to the Applicant in respect of those matters. Further such a finding in my view is not one that “no reasonable decision maker would have come to”.
Likewise complaints by the Applicant as to the weight attributed by the Tribunal to various parts of the Applicant’s evidence, for instance reasons for lack of financial pooling, does not demonstrate any unreasonableness on its approach. In respect of this complaint the Applicant also submitted that there was an error demonstrated and that in fact the Tribunal had misinterpreted the law concerning its findings in relation to the use of bank accounts. I do not accept the Applicant’s submissions in respect of this matter. As with other matters pertaining to the financial affairs of the Applicant and the sponsor the observation of the Tribunal that “joint bank accounts have been rarely used” was a conclusion premised upon the Tribunal’s review of the banking records. Nowhere within the decision can it be said that the Tribunal required “the Applicant or his spouse to prove where or how they must spend (their) money” as was submitted by the Applicant in his outline. The facts having been established before the Tribunal the challenge can only be to the inference drawn from those facts. In my view the inference drawn was one open to be drawn. It is not to the point that this, or another court, may have not drawn such a conclusion. The question is whether or not the inference was one reasonably open to be drawn. In my view it was.
Accordingly this ground also fails.
What I if am Wrong test
Although not pursued in oral argument it was submitted by the Applicant that having regard to the Tribunal’s findings, particularly where it stated that there was little reliable evidence of a spousal relationship prior to 2005 and “this could be adverse as it may indicate the documents now provided have been deliberately obtained to support the application”, they indicated that the Tribunal was less than conclusive in its finding that the evidence provided was unreliable. It was submitted that where a principal finding is less than conclusive a failure to consider the “what if I am wrong” test is sufficient to amount to a jurisdictional error: Phan –v– Minister for Immigration and Anor[14].
[14] (2007) FMCA88 at paragraph [27].
It was submitted that the Tribunal should have asked itself “what if I am wrong” before satisfying itself as to the lack of credibility in the claim in that the Applicant and the sponsor “deliberately obtained” the evidence in order to support the application. It follows the Applicant submitted that the Tribunal made assumptions and drew conclusions that were unjustified when concluding that the couple were not in a genuine spousal relationship and in giving little weight to the evidence produced after the delegate’s refusal and in turn the evidence created after the Tribunal hearing.
For reasons which have been detailed above even if the Tribunal had not considered the “what if I am wrong test” when regard is had to the findings made by the Tribunal it is apparent that the findings were open to the Tribunal to be reasonably drawn. In such circumstances there is no obligation upon the Tribunal to ask “what if I am wrong”: Minister for Immigration and Multicultural Affairs –v– Rajalingam[15].
[15] [1999] FCA 719 at paragraph [19] (with whom North J concurred).
In any event the “what if I am wrong test” is a test which has greater currency with “Convention” cases as opposed to migration cases as the test evolved out of cases involving applications for protection visas in “Convention” circumstances.[16]
[16] Minister for Immigration & Multicultural Affairs re Rajalingam supra at paragraph [63].
In the circumstances this ground also fails.
Conclusion
It follows from the matters discussed above that the application should fail. The Applicant should pay the Respondent’s costs.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Burnett FM
Associate: Bev Schmidt
Date: 1 August 2007