Nguyen v Minister for Immigration
[2006] FMCA 657
•10 May 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NGUYEN v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 657 |
| MIGRATION – Migration Review Tribunal – cancellation of Partner Residence visa – definition of spouse under reg. 1.15A(1a) – defined as a relationship ‘to the exclusion of all others’ – infidelity of applicant precluded relationship from meeting the definition within the regulation – application dismissed. |
| Migration Act 1959, ss.99, 101, 104, 108, 109 Migration Regulations 1994, rr.1.15A(1), 1.15A(1a), 2.41 |
| Brown, L (Ed.) New Shorter Oxford English Dictionary (Clarendon Press, Oxford: 1993) |
| Applicant: | ANH TUAN NGUYEN |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File number: | MLG697 of 2005 |
| Judgment of: | Riethmuller FM |
| Hearing date: | 24 January 2006 |
| Date of last submission: | 20 February 2006 |
| Delivered at: | Melbourne |
| Delivered on: | 10 May 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr Hurley |
| Solicitors for the Applicant: | Phillip Shulman |
| Counsel for the Respondent: | Ms Riley |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application filed on 10 June 2005 and amended, first on 25 November 2005, and second on 8 February 2006, is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG697 of 2005
| ANH TUAN NGUYEN |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant applies for judicial review of the decision of the Migration Review Tribunal (“the MRT”) cancelling his Partner (Residence) Class BS visa.
The applicant entered Australia on 7 November 1995 as the holder of a Student (Temporary) Class TU Subclass 560 (student) visa. He was subsequently granted further subclass 560 visas through to 1998.
On 17 June 2001 the applicant married Sarah Sylvia Masotti and subsequently applied for a permanent visa. On 4 July 2001 the applicant applied for a Partner (Temporary) (Class UK) (Sub-Class 820) (Spouse) visa. He was granted this visa on 13 September 2001.
On 20 August 2003 the applicant was granted a Partner Residence (Class BS) (Subclass 801) (Spouse) visa.
On 28 July 2004 the applicant’s visa was cancelled as a result of non-compliance with sections 101 and 104 of the Migration Act 1959 (“the Act”). The applicant is currently on a bridging E visa pending the outcome of these proceedings.
Background
In support of his permanent visa application the applicant submitted supporting documents including a resume stating that he had obtained a Bachelor of Business degree from Swinburne University of Technology. It later transpired that the applicant had not in fact graduated from Business Studies at Swinburne University.
The applicant omitted from his application form the birth of a daughter on 7 January 2003. It appears that the applicant fathered his daughter to a woman other than his spouse and had not disclosed this to his spouse for a period of time. Once the applicant’s wife became aware of the child (around October 2003), he and his wife attempted to continue the relationship, however the relationship came to an end.
On 18 November 2003 the applicant applied for a Child (Residence) visa (Class BT) (Subclass 802) for his daughter. However, this application was refused. The applicant’s daughter and her mother departed Australia on 7 August 2004. It appears that the mother of the applicant’s daughter had been in Australia on a student visa which was cancelled.
On 27 May 2004 the department issued a “Notice of Intention to Consider Cancellation” under section 109 of the Act to the applicant’s representative. The Notice alleged concerns that the applicant had not complied with sections 101, 104 and 109 of the Act.
Sections 101, 104 and 109 of the Act provide:
s.101 Visa applications to be correct
A non‑citizen must fill in his or her application form in such a way that:
(a) all questions on it are answered; and
(b) no incorrect answers are given.
s.104 Changes in circumstances to be notified
(1) If circumstances change so that an answer to a question on a non‑citizen’s application form or an answer under this section is incorrect in the new circumstances, he or she must, as soon as practicable, inform an officer in writing of the new circumstances and of the correct answer in them.
(2) If the applicant is in Australia at the time the visa is granted, subsection (1) only applies to changes in circumstance before the visa is granted.
(3) If the applicant is outside Australia at the time the visa is granted, subsection (1) only applies to changes in circumstances after the application and before the applicant is immigration cleared.
(4) Subsection (1) applies despite the grant of any visa.
…
s.108 Decision about non-compliance
The Minister is to:
(a) consider any response given by a visa holder in the way required by paragraph 107(1)(b); and
(b) decide whether there was non‑compliance by the visa holder in the way described in the notice.
s.109 Cancellation of visa if information incorrect
(1) The Minister, after:
(a) deciding under section 108 that there was non-compliance by the holder of a visa; and
(b) considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and
(c) having regard to any prescribed circumstances;
may cancel the visa.
(2) If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.
A second Notice of Intention to Consider Cancellation was given to the applicant when he attended for an interview with a delegate of the minister on 29 June 2004. The applicant’s agent made written submissions on 16 June 2004 and 19 July 2004.
The applicant’s visa was cancelled on 28 July 2004 under s.109. It is this decision that the applicant applied to review before the MRT.
MRT decision
The Tribunal recounted the relevant facts and circumstances. The Tribunal identified that the applicant had provided a resume with his application for a permanent spouse visa on 5 July 2001, his child was born on 7 January 2003, and that on 18 August 2003 provided the Minister with a statutory application and documentation guide which contained no reference to his daughter.
There appears to have been little factual dispute about the significant events. The Tribunal member explored the circumstances of the false claim by the applicant to have been awarded a Bachelor of Business and confirmed that the applicant had not lived with his wife since December 2003.
The Tribunal identified that cancellation in this case was not mandatory and proceeded to consider exercising the discretion in conformity with regulation 2.41 of the Migration Regulations 2001. That regulation provides:
Reg 2.41 - Whether to cancel visa -- incorrect information or bogus document (Act, s 109 (1) (c))
For the purposes of paragraph 109(1)(c) of the Act, the following circumstances are prescribed:
(a)the correct information;
(b)the content of the genuine document (if any);
(c)the likely effect on a decision to grant a visa or immigration clear the visa holder of the correct information or the genuine document;
(d) the circumstances in which the non-compliance occurred;
(e)the present circumstances of the visa holder;
(f)the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act;
(g)any other instances of non-compliance by the visa holder known to the Minister;
(h)the time that has elapsed since the non-compliance;
(j)any breaches of the law since the non-compliance and the seriousness of those breaches;
(k)any contribution made by the holder to the community.
Note Under s. 109 of the Act, the Minister may cancel a visa if there was non-compliance by the holder of a kind set out in Subdivision C of Division 3 of Part 2 of the Act. The Minister is to have regard to the prescribed circumstances in considering whether to cancel the visa.
The Tribunal, in making its decision, briefly considered each of the items referred to in regulation 2.41 before concluding that:
33.In considering whether to cancel the applicant’s visa, the Tribunal has regard to the review applicant’s false claims that he had a degree from Swinburne University of technology, his deception in hiding his extramarital child from his wife and from the Department. It is also significant that the review applicant and his spouse have separated. In the circumstances the Tribunal funds that the grounds for cancellation of the review applicant’s visa are made out.
The Tribunal concluded that the decision of the delegate should be affirmed.
The review application
The grounds for the review application of the applicant are as follows:
(a)the MRT erred in applying Reg 2.41(a)-(k) of the Migration (1994) Regulations by failing to constantly distinguish between the two alleged “false” statements made by the Applicant;
(b) the MRT erred in law in failing to properly consider, or consider at all, the operation of Reg 2.41(a), (b), (c) and (d) of the said Regulations in the context where neither of the “false” statements alleged to have been made by the Applicant would require the application for the spouse visa granted to him on either 13 September 2001 (subclass 820) or 20 August 2003 (subclass 801) be refused;
(c) the MRT failed to take into account relevant circumstance being that at all material times that the Applicant held the subclass 820 visa, and when he was granted the subclass 801 visa, the Applicant was in a genuine spousal relationship with the nominator;
(d) the MRT erred by basing its decision on the personal assessment of the member of the conduct of the Applicant rather than on the requirements of the Act and the Regulations;
(e)the MRT erred in law in concluding that the fact that a party to a marriage was involved in the birth of a child outside that marriage and failed to disclose that fact to the other party to the marriage meant the parties not have “a mutual commitment to a shared life as husband and wife to the exclusion of all others ..” within reg.1.15A(1A) Migration(1994) Regulations;
(f)the MRT erred by failing to conduct the review on the basis that it was required itself to determine factual matters and in particular whether the Applicant and Ms. Masotti were in a married relationship on 20 August 2003 and failed to do so acting instead on conclusions made by the delegate of the First Respondent;
(g) the MRT failed to apply ss.101, 104(1), 107(1), 108 and 108(1)(a) and (b) in a way which enabled it to address each of the particulars of the possible non-compliance identified in the notice under s.107(1)(a) Migration Act;
(h) the MRT erred in law in holding [reasons para. 30] that any failure of the Applicant to give details of the birth of the daughter on 7 January 2003 in the application form of 5 July 2001 (D1f.1-17) in answer to either paragraph 37 (folio 12) or paragraph 85 “Documents” (folio 3) and, or, any failure to refer to the birth of the daughter in the Documentation Guide (D1f.149 being p.4 of exhibit 1I in the proceeding) constituted an incorrect answer to “a question” for the purposes of ss.101, 104 or 105 of the Migration Act for the purposes of s. 107(1)(a) of that Act.
The grounds for review can be conveniently grouped as follows:
a)Error of law in interpreting the definition of spouse and imposing a personal assessment of the applicant’s conduct (grounds (d) and (e));
b)errors in the hearing process:
i)relying upon findings of the delegate (ground(f));
ii)failing to deal with each allegation of non-compliance separately (grounds (a), (b), and (g))
c)applicant’s failure to give details of his daughter on his application (ground (h));
d)failure to take into account that the applicant was in a relationship at the time of the visas being granted (ground (c));
Definition of spouse
Counsel for the applicant argued that the Tribunal erred in concluding the requirements for a spouse visa set out in regulations 1.15A(1) and 1.15A (1A) of the regulations meant that the applicant was not in a spousal relationship with Ms Masotti as a result of his infidelity.
The relevant part of the regulations requires the parties to have ‘a mutual commitment to a shared life as husband and wife to the exclusion of all others’ (emphasis added).
It was argued that the infidelity of the applicant would be a relevant factor when considering the ‘mutual commitment’ and whether or not the relationship was ‘genuine and continuing’ (as required by other parts of the regulations). However, the applicant argued, his infidelity did not ‘ipso facto’ exclude a married relationship ‘as husband and wife.’
The words of the regulation are clear. The ordinary meaning of ‘exclusion of all others’ in this context is a relationship where the spouses do not engage in acts of sexual intimacy with others, nor have children with others.
It was suggested that the normal or generally accepted meaning of a marital relationship or marriage-like relationship included sexual relationship with others, save for societies where polygamy is acceptable. While such human foibles are tolerated, and in some areas even tacitly accepted as a part of life, they are not within the well accepted meaning of a relationship that is in the nature of husband and wife. In any event, the term “to the exclusion of all others” makes it clear that the nature of the relationship has to be one only between the husband and wife. The level of intimacy involved in a sexual relationship with another (which in this case involved fathering a child) takes the applicant outside of the definition in reg.1.15A (1A). To argue, as the applicant did, that the Tribunal had substituted its own moral judgment overlooks the clear words of the regulation.
On this issue I find that the applicant does not succeed and that the MRT did not err in finding that the applicant and his wife were not in a relationship of the nature required by the regulations, at least by the time of the conception of the children. On the facts before the MRT it does not appear that the applicant and his wife successfully resumed their relationship following the birth of the child and therefore the question of whether or not a relationship of the type referred to in the regulations could resume after an isolated incident of intimate sexual relations with a third party does not arise in this case.
In any event, in this case the Tribunal had only to consider the likely effect on the visa application. The Tribunal did this and concluded that it was likely to have impacted upon the application and that the applicant was now separated form his wife. I find no error on the part of the Tribunal in this regard.
Errors alleged in the hearing process
The second matter argued by the applicant was that the Tribunal had not conducted a de novo review, but had approached the matter as if it were conducting an appeal or judicial review. In reading the Tribunal’s decision, it appears that the Tribunal relied heavily on facts as found by the delegate. However, the Tribunal reviewed the facts and drew its own conclusions with respect to the exercise of the discretion. An unusual feature of the case was that the facts before the Tribunal were the same as those before the delegate. The applicant does not dispute that he and his wife had separated, that he did not have a business degree from Swinburne University, and that he had fathered a child and sought a visa for that child. As a result, there was no call upon the Tribunal to make detailed findings of fact about these issues, rather the task of the Tribunal in this case was to review the facts and circumstances and exercise afresh the relevant discretion, which the Tribunal did.
The applicant also argued that the Tribunal had failed to consider exercising its discretion with respect to each particular allegation against the applicant. It was argued that the Tribunal should have addressed the consequences of each false statement separately rather than addressing the matter as a whole.
It is appropriate that the Tribunal consider each allegation and false statement separately in order to identify whether each allegation or particular has been proved. In this case there was no dispute about the relevant facts. The Tribunal clearly identify the grounds for cancellation at paragraph [30].
Once the Tribunal has identified more than one ground for cancellation, it is not appropriate to consider each of these statements separately when exercising the discretion as to whether or not to cancel the visa. It would create an absurd situation for the Tribunal not to take the conduct of the applicant as a whole in exercising the overall discretion.
For example, the requirement in regulation 2.41 that the Tribunal take into account matters such as the contributions of the holder of the visa to the Australian community and the present circumstances of the visa holder as well as the circumstances in which the non-compliance occurred: It would create a wholly artificial assessment and exercise of the discretion if these matters were to be balanced against the individual non-disclosures without the Tribunal being able to consider the matter as a whole.
In this regard, I find that the Tribunal has not erred.
Applicant’s failure to disclose his daughter on the visa application
The next matter raised by the applicant was that the Tribunal erred in concluding that the failure of the applicant to give details of the birth of his daughter on 7 January 2003 in the application formally completed on 5 July 2001 constituted an incorrect answer for the purposes of the Act.
The relevant part of the application form was question 37 which stated “37.Give details of all your family…” Thereafter a number of boxes appear requiring full name, gender, date of birth, marital status, country of residence, Australian migration status and whether or not the person is migrating with them. There is also a heading “All your children (including from previous marriages/relationships).”
It was argued that the relevant part of the application form did not contain a question, such as “who are all of your family?” But rather contained a command. As such, it was argued, there was no ‘question’ within the meaning of ss.101 and 104. The word ‘question’ has a broad meaning. It can be limited to the technical grammatical meaning of an interrogative statement. However it has a broader meaning, as included in Brown, L (Ed.) New Shorter Oxford English Dictionary (Clarendon Press, Oxford: 1993) at 2446:
I … 1. A sentence worded or expressed in a form such as to elicit information form a person; inquiry.
As a result I am satisfied that the ‘command’ for information on the application form was a question within the meaning of the sections. In any event, s.99 provides:
s.99 - Information is answer
Any information that a non‑citizen gives, causes to be given or that is given on his or her behalf to the Minister, an officer or a person or Tribunal reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given orally or in writing and whether at an interview or otherwise.
I therefore find that this ground is not a basis for judicial review in this case.
Failure to take into account that the applicant was found to be in a relationship at the time of the grant of the visas
It was argued that the applicant was in a relationship of the type required by the visa conditions at the time of the grant of the visa. The argument continued on the basis that the Tribunal should only look at the nature of the relationship up until the time of the grant of the visa. In this case the marriage did not break down until after the visa was granted because the applicant’s wife only became aware of his extra-marital affair (and child) after the visa was granted, even though he had engaged in the affair, and the child was born before the visa was granted.
The nature of the enquiry for the Tribunal at this time was first to determine whether the applicant, had provided incorrect answers, or failed to advise the minister when circumstances changed, and secondly to consider the exercise of the discretion under reg.2.41. The Tribunal did this. The whole purpose of the provisions would be defeated if the Tribunal were obliged to ignore the undisclosed information in exercising the discretion under reg.2.41 as the very purpose of reg.2.41(c) is to consider the likely effect of the information on the decision.
I therefore find that this ground fails.
As the applicant has not demonstrated a ground for review I dismiss the application.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
Associate: Melissa Gangemi
Date: 10 May 2006
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