Nguyen v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 208
•29 March 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Nguyen v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 208
File number(s): SYG 2764 of 2017 Judgment of: JUDGE MANOUSARIDIS Date of judgment: 29 March 2022 Catchwords: MIGRATION – application for remedies under s 476 of the Migration Act 1958 (Cth) (Act) in relation to a decision made by the Administrative Appeals Tribunal (Tribunal) affirming decision not to grant Partner visa – whether Tribunal relied on dob-in letter in making adverse credibility findings against applicant – whether Tribunal relied on adverse credibility findings in rejecting or discounting evidence – whether Tribunal failed to give genuine and realistic consideration to the evidence – no jurisdictional error. Legislation: Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) Schedule 2, Part 2
Migration Act 1958 (Cth) ss 5F(2), 375A, 376, 476
Migration Regulations 1994 (Cth) Schedule 2, cl 820.211(2)(a)
Cases cited: Fattah v Minister for Home Affairs [2019] FCAFC 31
Smith v New South Wales Bar Association (1992) 176 CLR 256
STCB v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 61
Division: Division 2 General Federal Law Number of paragraphs: 45 Date of hearing: 3 August 2021 Place: Sydney Counsel for the Applicant: Mr B Zipser, by video Solicitor for the Applicant: Andy Pham Lawyers Counsel for the First Respondent: Mr T Liu, by video Solicitor for the First Respondent: Clayton Utz ORDERS
SYG 2764 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: THI Y NGUYEN
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE MANOUSARIDIS
DATE OF ORDER:
29 MARCH 2022
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The applicant pay the first respondent’s costs set in the amount of $7,853.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION
The applicant applies for remedies under s 476 of the Migration Act 1958 (Cth) (Act) in relation to the decision of the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant a Partner (Temporary) (Class UK) visa (Partner visa).
BACKGROUND
The applicant is a citizen of Vietnam. She first entered Australia in May 2013 as the holder of a subclass TU-573 student visa. On 15 October 2014 the applicant applied for a Partner visa on the basis that she was married to a Vietnamese citizen who is an Australian permanent resident (Sponsor).
Criteria
To have been entitled to be granted a Partner visa the applicant had to satisfy, among other things, the criterion specified in cl 820.211(2)(a) of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations). That paragraph requires that at the time of application for a Partner visa the applicant is the spouse or de facto partner of an Australian citizen. Subsection 5F(1) of the Act provides that a person is the “spouse” of another person if, under s 5F(2) of the Act, the two persons are in a “married relationship”. Under s 5F(2) of the Act, persons are in a “married relationship” if:
(a)they are married to each other under a marriage that is valid for the purposes of the Act; and
(b)they have a mutual commitment to a shared life as a married couple to the exclusion of all others; and
(c)the relationship between them is genuine and continuing; and
(d)they live together, or do not live separately and apart on a permanent basis.
Subsection 5F(3) of the Act provides that the Regulations “may make provision in relation to the determination of whether one or more of the conditions in paragraphs (2)(a), (b), (c) and (d) exist”. The Regulations have made provision, and this is to be found in reg 1.15A of the Regulations. Subregulation 1.15A(2) of the Regulations provides that, when considering an application for, among other subclasses of visas, a Partner visa, the Minister must consider all the circumstances of the relationship, including the matters set out in reg 1.15A(3) of the Regulations. Those matters are:
(a)the financial aspects of the relationship, including any joint ownership of real estate or 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 obligation in respect of the other; and the basis of any sharing of day-to-day household expenses; and
(b)the nature of the household, including any joint responsibility for the care and support of children; the living arrangements of the persons; and any sharing of the responsibility for housework; and
(c)the social aspects of the relationship, including whether the persons represent themselves to other people as being married to each other; the opinion of the persons’ friends and acquaintances about the nature of the relationship; and any basis on which the persons plan and undertake joint social activities; and
(d)the nature of the persons’ commitment to each other, including the duration of the relationship; the length of time during which the persons have lived together; the degree of companionship and emotional support that the persons draw from each other; and whether the persons see the relationship as a long-term one.
Application for Partner visa
In her application for a Partner visa the applicant stated that the Sponsor had been married from 7 September 2008 to 1 January 2013, when that marriage had broken down; the Sponsor was granted permanent residency on 12 July 2012; the applicant and the Sponsor met on 14 February 2014; and the applicant married the Sponsor on 25 July 2014. The applicant supported her application with statutory declarations made by three supporting witnesses – Mr Van Sang Le (the applicant’s uncle), Ms Thi Huyen Truong (the applicant’s aunt), and Ms Van Minh Le, the applicant’s employer at a nail salon.
By letter dated 19 January 2016 the Department of Immigration and Border Protection (as the Department of Immigration, Citizenship, Migrant Services and Multicultural Affair was then known) (Department) requested the applicant provide information of the nature identified in the letter.[1] The applicant provided documents that included bank statements, a rental agreement, and a statutory declaration made by each of the applicant and the Sponsor.
[1] CB58
In her statutory declaration,[2] the applicant said she met the Sponsor on 14 February 2014 in Cabramatta when they were both doing their groceries; the “culmination of” their relationship developed over four weeks after which the applicant and the Sponsor started dating by the middle of March 2014; the applicant and Sponsor were very much in love and they became intimate with each other after which they agreed “to commence cohabitation on 25 July 2014”; the applicant told her family about her decision to marry the Sponsor when she turned 21 years of age in 2014 when the Sponsor proposed to her; she and the Sponsor agreed to cohabitate after the applicant accepted the Sponsor’s proposal at a property the applicant and Sponsor shared with the applicant’s uncle and aunt; the marriage was solemnised on 25 July 2014; and the applicant and Sponsor held a wedding party in Vietnam in the presence of the applicant’s and the Sponsor’s families. The applicant repeated information she included in her application for a Partner visa in relation to the financial aspects of the relationship between the applicant and Sponsor, the nature of their household, the social aspects of their relationship, and the nature of their commitment.
[2] CB159
In his statutory declaration,[3] the Sponsor said he first met the applicant in Cabramatta; after a few days the Sponsor called the applicant and asked a number of questions about her personal life; the applicant told him she was a student doing her English studies in Sydney; by the middle of March 2014 the Sponsor and applicant constantly went out at various places, played games, and watched movies; the Sponsor fell for the applicant before she turned 21 when they both made a decision to marry each other; and the Sponsor spoke to the applicant’s family in Vietnam and Australia.
[3] CB165
On 6 May 2016 the delegate refused to grant the applicant a Partner visa.[4]
[4] CB195
Before the Tribunal
By letter dated 9 January 2017 the Tribunal invited the applicant to appear before the Tribunal on 21 February 2017. Between 16 and 21 February 2017 the applicant’s agent provided a statutory declaration made by the applicant’s aunt and uncle,[5] and a statement made by the Sponsor’s mother and father.[6] On 7 March 2017 the applicant’s agent provided post hearing submissions to the Tribunal.[7]
[5] CB285
[6] CB289
[7] CB293
In the meantime, on about 6 March 2017, a delegate of the Minister issued a certificate under s 376 of the Act.[8] The certificate stated that s 376(1)(b) of the Act applies to a fax received on 6 March 2017 (dob-in letter) because the fax was given to an officer of the Department in confidence and s 375A of the Act does not apply. It appears the Tribunal received the certificate on 24 April 2017. That prompted the Tribunal on 26 April 2017 to send a letter to the applicant inviting her to appear before the Tribunal on 26 May 2017:[9] In that letter the Tribunal stated as follows:
[8] CB310
[9] CB316
On 24 April 2017, before the Tribunal had made a decision in your matter, the Tribunal received a s.376 certificate from the Department of Immigration which is considered to be valid.
The nature of the information is that it is adverse information in the form of a handwritten note sent to the Department in confidence. The information is therefore, in the view of the Tribunal subject to the provisions of s.376(3) of the Act.
The adverse information included the following allegations:
1. The marriage between you and the sponsor is fake;
2. You live with your aunty in West Hoxton and the sponsor lives in Yagoona with his wife and two children, and that you and the sponsor do not live together;
3.In February the sponsor travelled to Vietnam with his ex-wife, to Hai Phong City.
The Tribunal invites you to a further hearing and intends to put these matters to you at the hearing, under s.359AA, as they are matters that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review.
On 14 May 2017 the applicant’s agent sent an email to the Tribunal attaching a “Request for access to written material under Section 362A of the Migration Act” requesting the Tribunal provide “all departmental file [sic] and AAT written materials, including any adverse information in the form of a hand written note sent to the Department in confidence”.[10] A delegate of the Tribunal’s Registrar responded by letter sent by email on 18 May 2017. The letter refused to release most of the documents requested. These included documents the Tribunal decided not to release on the ground that “they are subject to a certificate made by the department under section 376 of the Migration Act and [in the delegate’s discretion] decided not to release the information”.[11]
[10] CB318
[11] CB322
A further hearing occurred before the Tribunal on 26 May 2017, and the Tribunal made its decision on 4 August 2017 affirming the delegate’s decision not to grant the applicant a Sponsor visa.
TRIBUNAL’S REASONS
The Tribunal accepted the applicant and the Sponsor are validly married.[12] The Tribunal, however, was not satisfied the applicant and the Sponsor have financial arrangements commensurate with what might reasonably be expected of a genuinely married couple.[13] The Tribunal relied on the following matters:
(a)Both the applicant and the Sponsor claimed they earned more income than they had declared in their income tax returns. The Tribunal considered that if the applicant and the Sponsor knowingly misrepresent facts about their financial circumstances to the Australian Tax Office (ATO), they may also be inclined to make misrepresentations in the information they have provided the Department in relation to the applicant’s application for a Partner visa.[14] Further, the Sponsor did not provide substantiating evidence about the source of his income over and above what he considers to be his taxable income.[15]
(b)Although the applicant and Sponsor provided receipts for grocery, household, and personal purchases, the receipts did not show who bought the items, or for whom they were bought.[16]
(c)The Sponsor and applicant gave consistent evidence that when the Sponsor visited Vietnam the applicant sent him a total of $4,000; and that, when in Vietnam, the Sponsor spent $2,000 on medical expenses for his father and $5,000 on traditional Lunar New Year gifts. The Tribunal found, however, that despite its attempts to have the matter explained, the applicant and the Sponsor did not adequately explain where the money came from, given the applicant’s and the Sponsor’s low incomes. The Tribunal found the applicant and Sponsor “were somewhat evasive about this, although consistent”.[17]
(d)The Tribunal found that the Sponsor attempted to clarify confusion about other sums deposited into the joint bank account by claiming that people borrow money from him in Vietnam and he is there, who then get other people to bring back money with them from Vietnam. The Tribunal found there was no documentary or other reliable evidence to support this.[18]
[12] CB334, [23]
[13] CB335-336, [34]
[14] CB334, [25]
[15] CB335, [27]
[16] CB334, [26]
[17] CB335, [30]
[18] CB335, [31]
Although the Tribunal found the documentary evidence supports the applicant and the Sponsor live at an address at Yagoona (Yagoona address), and they have socialised with some family members, the Tribunal did not accept they live at the Yagoona address together in a married relationship, or that they share a household in a manner commensurate with that of a married couple.[19] The Tribunal relied on its finding that the parties had given conflicting and inconsistent evidence about who lives at the Yagoona property.
(a)At the first hearing before the Tribunal, the parties said there was a single mother with one child who shared the three bedroom house they rent, and a man lived in the granny flat at the back.[20]
(b)The Sponsor’s parents provided a written statement claiming they lived at the Yagoona property from September 2014 to July 2015 when they visited from Vietnam. The Tribunal accepted this evidence, and also accepted that the Sponsor’s parents lived at the Yagoona property from 2015 to January 2016.[21]
(c)At the second hearing the parties gave evidence there is no-one but the two of them living at the main house at the Yagoona property, and that a man, a woman, and her two children live in the granny flat.[22] The parties said that the single mother who lives in the granny flat pays the sponsor $150 per week rent, and he then pays the total rent to the landlord, but the parties provided no documentary evidence of this.[23]
(d)The Tribunal was not satisfied the information contained in the dob-in letter was not without foundation, and gave it “weight to confirm the view the Tribunal has formed, on the evidence, that the parties’ lack credibility”.[24] The Tribunal relied on the dob-in letter providing a “fair amount of personal information, including the names the parties have used to set up Facebook accounts, the address . . . where the parties lived before they were married, the address they claim to live at now in Yagoona, the name of a relative of the applicant, where the applicant works and that the sponsor travelled to Vietnam in early 2017”. The Tribunal also relied on the “lack of documentary evidence to satisfy the Tribunal that there was no substance to it and the overall concerns about other aspects of the matter relating to the parties’ credibility”.[25]
[19] CB336, [38]
[20] CB336, [35]
[21] CB336, [35]
[22] CB336, [35]
[23] CB333, [19]
[24] CB333, [20]
[25] CB333, [20]
The Tribunal accepted the applicant and the Sponsor represent themselves to others as being legally married, but it was not satisfied that the evidence they provided strongly supports their relationship is genuine and is represented as such to the wider community.[26] The Tribunal was also not satisfied “on the evidence – and particularly when considered together with credibility concerns with regard particularly to the evidence about the living arrangements at the Yagoona house – that the parties have a long term commitment to the relationship”.[27]
[26] CB337, [43]
[27] CB338, [48]
In sections headed “Section 359AA matters” and “The second hearing” the Tribunal identified a number of inconsistencies between evidence the applicant and the Sponsor gave. The Tribunal referred to evidence they had given about whether the applicant or the Sponsor had a Facebook account. The applicant initially said “no” but when shown a print-out of a page from Facebook in the name different from that of the applicant, the applicant said that was her Facebook account. The Tribunal did not accept the applicant’s explanation for initially having stated “no” that she had misunderstood the question.[28] The applicant also initially said the Sponsor did not have a Facebook account but, when shown a printout of a page from Facebook, she said it was the Sponsor’s Facebook page.[29] The Sponsor also had initially said he did not have a Facebook account but then accepted he did.[30] The same occurred when asked whether the Sponsor was aware the applicant had a Facebook account.[31] The Tribunal concluded as follows:[32]
Whilst the parties gave some consistent evidence and presented generally as co-operative witnesses the weight of their inconsistent and conflicting responses have, on balance, so negatively affected their credibility that the Tribunal is not satisfied their claim to be spouses in a married relationship are, on the whole, reliable when all facts and matters are considered individually and cumulatively.
[28] CB341, [65]
[29] CB341, [65]
[30] CB342, [68]
[31] CB342, [70]
[32] CB342, [73]
GROUND 1
The applicant relies on grounds 1 and 3 stated in the amended application filed on 19 August 2021. Ground 1 is as follows:
The Tribunal accepted that the applicant and the sponsor lived in a house in Yagoona (paragraphs 36 and 38 of Tribunal’s decision) and implicitly accepted that the applicant did not live with her aunty in Wext [sic] Hoxton. The Tribunal also accepted that in January 2017 the sponsor travelled to Vietnam without his ex-wife. It followed from these findings that two significant assertions in the dob-in letter (that the applicant lives with her aunty in West Hoxton and does not live with the applicant in Yagoona, and that the sponsor travelled to Vietnam in early 2017 with his ex-wife) was were wrong. This matter, in turn, cast significant doubt on the reliability of the dob-in letter as a whole. The Tribunal did not take this matter into account in making its decision. This was a jurisdictional error.
Parties’ submissions
In her counsel’s written submissions, the applicant submits as follows:
(a)The dob-in letter contained four allegations: the marriage between the applicant and the Sponsor is fake (sham marriage allegation); the applicant lives with her aunt in West Hoxton (live separately allegation); the Sponsor lives at the Yagoona property with his ex-wife and two children (live with ex-wife allegation), and in February 2017 the Sponsor travelled to Vietnam with his ex-wife (travel together allegation).[33]
(b)There is a real possibility the dob-in letter was written by the Sponsor’s ex-wife.[34]
(c)The Tribunal found the applicant and the Sponsor live together at the Yagoona property and, on a fair reading of the Tribunal’s reasons, it found the applicant and Sponsor lived together at the Yagoona property at all relevant times. [35]
(d)The Tribunal accepted that in January 2017 the Sponsor visited Vietnam without the applicant, and it accepted he did so without his ex-wife.[36]
(e)The dob-in letter was written by a person who refused to disclose his or her identity.[37]
[33] Outline of Submission for Applicant [26]
[34] Outline of Submission for Applicant [29]
[35] Outline of Submission for Applicant [30]
[36] Outline of Submission for Applicant [31]
[37] Outline of Submission for Applicant [32]
The applicant further submits that the Tribunal expressly placed weight on the sham marriage allegation and implicitly placed weight on the live with ex-wife allegation yet, at the same time, it overlooked the fact that the travel together allegation “was false based on the Tribunal’s findings”, and that the travel together allegation “was rejected by the Tribunal, or at least not accepted to be true”.[38] This rendered the sham marriage allegation and the live with ex-wife allegation “extremely unreliable”, and, for that reason, it was perverse for the Tribunal to place any weight on the remaining allegations in the dob-in letter. The applicant further submitted as follows:[39]
[38] Outline of Submission for Applicant [33]
[39] Outline of Submission for Applicant [36]
One way of characterizing [sic] the Tribunal’s error is that its reasoning process in placing weight on some allegations in the dob-in letter, when the document was extremely unreliable taking into account findings of the Tribunal concerning other allegations in the letter and features of the letter, was irrational or illogical. Where a decision-maker makes a finding based on an irrational or illogical reasoning process, this may be a jurisdictional error. A reasoning process may be irrational or illogical in a manner involving jurisdictional error:
a) “if the decision to which the decision-maker came was simply not open on the evidence”: Minister v SZMDS (2010) 240 CLR 611 at [135];
b) “if there is no logical connection between the evidence and the inferences or conclusions drawn”: Minister v SZMDS at [135];
c) if there is no “rational or probative evidence to support” the finding, or the finding is “made without any probative foundation” or “without any material to found” it; Hands v Minister [2018] FCAFC 225; 364 ALR 423 at [44]-[47]; DAO v Minister [2018] FCAFC 2; 258 FCR 175 at [30(2)]; AOJ18 v Minister [2018] FCAFC 220 at [31];
d) if the finding of fact is “simply incapable of being reasonably made by any decision-maker, there being no evidence at all to support [the finding] and all evidence to the contrary to a reasonable decision-maker”: Hands v Minister at [45];
e) if the finding of fact lacks an evident and intelligible justification: Gupta v Minister [2017] FCAFC 172; 255 FCR 486 at [48]; Singh v Minister [2019] FCAFC 3 at [61];
f) if there was no evidence to support a necessary step or element for the finding of fact: FSG17 v Minister [2020] FCAFC 29 at [61]-[63];
g) if the finding of fact is not “based upon facts having logical and probative weight”: CQG15 v Minister [2016] FCAFC 146 at [41].
The Minister,[40] on the other hand, submits that ground 1 is to be determined by applying the principle stated in the following passage from the Full Federal Court in Fattah v Minister for Home Affairs (Minister’s emphasis):[41]
To discern illogicality (or irrationality) one must demonstrate that there is only one conclusion open on the evidence or that there is no logical connection between the evidence and the inferences drawn: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at 649 at [135] per Crennan and Bell JJ; Gupta v Minister for Immigration and Border Protection [2017] FCAFC 172; 255 FCR 486 (‘Gupta’) at [34] per Gilmour and Mortimer JJ; DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; 258 FCR 175 at [30] per Kenny, Kerr and Perry JJ. As to unreasonableness, this may appear in the decision-making process or merely from the outcome and one may ask whether the decision lacks an evident or intelligible justification: Gupta at [36] per Gilmour and Mortimer JJ; Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 at [8] and [21] per Allsop CJ.
[40] First Respondent’s Outline of Submissions, [12]
[41] Fattah v Minister for Home Affairs [2019] FCAFC 31, at [45]
The Minister submits that, to succeed on this ground, the applicant must establish that the only conclusion available to the Tribunal was to reject any reliance on the dob-in letter, or the applicant must establish the Tribunal’s reliance on the dob-in letter to call into question the applicant’s and the Sponsor’s credibility had no logical basis. The Minister submits such conclusions are not available. The Minister further submits that the Tribunal’s reliance on the dob-in letter must be seen in the context that the applicant asked the Tribunal to rely solely on the oral evidence of the applicant, the Sponsor, and the applicant’s aunt and uncle, to consider the allegations contained in the dob-in letter to be false.
Determination
Ground 1, and the applicant’s submissions, are premised on the Tribunal’s having expressly found that the applicant and the Sponsor lived at the Yagoona property and, implicitly, had been living there at all relevant times; and on the Tribunal’s having further accepted that the Sponsor visited Vietnam without his ex-wife. None of these premises is correct.
As to the first of the two premises, the applicant relies on what the Tribunal said in paragraphs 36 and 38 of its reasons. In paragraph 36 of its reasons the Tribunal observed that some utility bills in joint and individual names had been provided as evidence that the applicant and the Sponsor live at the Yagoona property and that, “[o]n the face of it, it appears that the applicant lives at the three bedroom house in Yagoona at the time of this decision”. The Tribunal, therefore, went no further than making the guarded observation that on the face of the documents it appears the applicant lived at the Yagoona property at the time of its decision. In paragraph 38 of its reasons, however, the Tribunal said that, although the documentary evidence seemed to support that the applicant and the Sponsor live at the Yagoona address and that they have socialised with some family members, the Tribunal did not accept the applicant and Sponsor live at the Yagoona address together in a married relationship.
As to the second of the two premises, it is the case that in paragraphs 20, 28, and 30 of its reasons the Tribunal accepted the Sponsor travelled to Vietnam, and that in paragraph 46 of its reasons the Tribunal accepted the Sponsor travelled to Vietnam without the applicant. The Tribunal, however, did not find or accept that the Sponsor travelled to Vietnam without his ex-wife; and it is not possible to conclude the Tribunal impliedly so found or assumed. The possibility of any such implication is removed by what the Tribunal said in paragraph 72 of its reasons:[42]
The “dob-in” allegation also included that the sponsor travelled to Vietnam with his ex-wife in January 2017. This was put to him under s.359AA at the second hearing and he said that he did not travel with her and was not aware that she was in Vietnam at the same time he was. As there is no evidence that the sponsor and his ex-wife did in fact travel together to Vietnam, no reliance is placed on this particular allegation in the “dob-in” and no negative weight given to it by the Tribunal in reaching a decision.
[42] CB342, [72]
The applicant submits this passage indicates the Tribunal accepted the Sponsor’s evidence that in 2017 he travelled to Vietnam without his ex-wife.[43] The applicant relies on the following passage from the plurality’s judgment in STCB v Minister for Immigration and Multicultural and Indigenous Affairs:[44]
The failure of the Tribunal to criticise this account, and its acceptance of the appellant's claim “that his family is involved in a blood feud with the Paja family because the [appellant's] grandfather killed a member of the Paja family in 1944-45”, suggest that the Tribunal made implicit findings that this account was correct.
[43] Outline of Submission for Applicant [31]
[44] STCB v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 61, at [23]
This passage does not apply to the circumstances of the case before me. In STCB the Tribunal set out without criticism an account the visa applicant in that case had given to the Tribunal. That, however, does not correctly characterise how the Tribunal in the case before me dealt with the Sponsor’s evidence that he visited Vietnam without his ex-wife. In paragraph 72 of its reasons the Tribunal addressed the Sponsor’s evidence that he visited Vietnam without his ex-wife, not by saying nothing about it, but by the Tribunal concluding that it placed no reliance on that part of the dob-in letter that asserted the Sponsor visited Vietnam with his ex-wife. In other words, the Tribunal formed the view it was not in a position to make a finding that the Sponsor travelled to Vietnam with his ex-wife because there was no documentary evidence that could corroborate that claim. That does not imply a finding by the Tribunal that the dob-in letter was false in asserting the Sponsor travelled to Vietnam with his ex-wife, and that, therefore, the Sponsor travelled to Vietnam without his ex-wife. As it was said in Smith v New South Wales Bar Association:[45]
There is a difference between the rejection of a person’s evidence and a finding that he or she deliberately lied. . . . [A]s a matter of logic and common sense, something more than mere rejection of a person’s evidence is necessary before there can be a positive finding that he or she deliberately lied in the giving of that evidence.
[45] Smith v New South Wales Bar Association (1992) 176 CLR 256, at page 268. Note also the observation: “The true opposites of belief, psychologically considered, are doubt and inquiry, not disbelief.” (James, Principles of Psychology, quoted in C C Moore A Treatise on Facts, Vol.1 Edward Thompson Company 1908, at page 8).
For these reasons alone, ground 1 fails.
There is, however, an additional reason why ground 1 fails; and that relates to the relevance of the dob-in letter to the Tribunal’s reasons as a whole. The applicant submits the Tribunal relied on the dob-in letter by giving weight to the sham marriage allegation, that it contributed to the Tribunal’s finding that the parties lack credibility, and that the live with ex-wife allegation caused the Tribunal to be concerned about the identity of the other people who lived at the Yagoona property.[46] I do not accept these submissions.
[46] Outline of Submission for Applicant [27]
The question the Tribunal addressed in relation to the dob-in letter was the applicant’s and the Sponsor’s submission that the allegations made in the dob-in letter are false. The Tribunal answered that question by concluding that, given the level of detail in the allegations contained in the dob-in letter, the lack of documentary evidence to satisfy the Tribunal that there was no substance to them, “and the overall concerns about other aspects of the matter relating to the parties’ credibility”, it was not satisfied the allegations made in the dob-in letter were without foundation; and, for that reason, the Tribunal decided to give the matters alleged in the dob-in letter some weight “to confirm the view the Tribunal formed, on other evidence, that the parties’ lack credibility”. Thus, rather than relying on the contents of the dob-in letter to form an adverse view of the credibility of the applicant and the Sponsor, the Tribunal relied on the adverse view the Tribunal had formed about their credibility, for reasons not connected with the dob-in letter, to conclude it was not satisfied the dob-in letter was without foundation; and to rely on that conclusion to confirm the adverse view the Tribunal had already formed about the applicant’s and the Sponsor’s credibility.
Ground 1, therefore, does not succeed for the additional reason that the Tribunal did not rely on the dob-in letter to form an adverse view of the credibility of the applicant and the Sponsor, but instead found it confirmed the adverse view of the credibility of the applicant and the Sponsor the Tribunal had formed without reference to the dob-in letter.
GROUND 3
Ground 3 is as follows:
The Tribunal undertook a balancing exercise as a step in reaching its ultimate conclusion that it was not satisfied that the marriage between the applicant and sponsor was genuine. The balancing exercise, which involved balancing evidence which would support a conclusion that the marriage between the applicant and sponsor was genuine against the Tribunal’s credibility concerns about the applicant and sponsor, appears in paragraphs 12, 34, 42-43, and 73-74 of the Tribunal’s decision. The Tribunal fell into jurisdictional error in applying the balancing approach in two ways. First, the Tribunal used its credibility concerns about the applicant and sponsor to reject or discount evidence not rationally affected by their credibility. Second, the Tribunal failed to give, proper, genuine and realistic consideration to the evidence of the applicant’s aunt and uncle, sponsor’s parents and the applicant’s employer, which, combined, strongly supported a conclusion that the marriage between the applicant and sponsor was genuine and continuing.
Parties’ submissions
In her counsel’s written submissions the applicant submits the Tribunal relied on particular credibility concerns in relation to the applicant and the Sponsor to reject or discount evidence or findings that could not rationally be affected by those credibility concerns. The credibility concerns (Credibility Concerns) on which the applicant submits the Tribunal relied are:[47]
(a)The Tribunal’s finding that the applicant and the Sponsor may be inclined to make misrepresentations to the Department, given they have made misrepresentations to the ATO.
(b)The Tribunal’s having given unsatisfactory and inconsistent evidence about the identity of the persons who live at the Yagoona property.
(c)Allegations contained in the dob-in letter.
(d)Inconsistent evidence the applicant and the Sponsor gave about whether they held a Facebook account.
[47] Outline of Submission for Applicant [24]
The applicant submits the Tribunal’s irrational reliance on the Credibility Concerns in rejecting or discounting evidence is apparent in the manner in which the Tribunal balanced those concerns with three classes of evidence and findings.
(a)The first class is documentary evidence the applicant provided, and the Tribunal’s finding that the applicant and the Sponsor had given consistent evidence in support of a conclusion that they pooled their financial resources to some degree. The applicant submits that, given this evidence and this finding, the mere fact the Tribunal had credibility concerns about the applicant and the sponsor does not rationally support a conclusion that their financial arrangements were not commensurate with what might be expected of a genuine married couple.[48]
(b)The second class of evidence and findings are photographs and statements given by the Sponsor’s parents, the applicant’s aunt and uncle, the applicant’s employer, and the Tribunal’s acceptance of that evidence. The applicant submits the Tribunal’s credibility concerns do not rationally affect the reliability of the evidence the Sponsor’s parents, the applicant’s uncle and aunt, and the applicant’s employer gave. The applicant further submits that the Tribunal discounted, or placed less weight on, evidence given by these witnesses, because of the Tribunal’s concerns about the credibility of the applicant and the Sponsor.[49]
(c)The third class is the evidence to which the Tribunal referred in concluding it was not satisfied the parties have a long term commitment to the relationship. Again the applicant submits the Tribunal’s reasoning process was irrational.[50]
[48] Outline of Submission for Applicant [39(a)]
[49] Outline of Submission for Applicant [39(b)], [41]
[50] Outline of Submission for Applicant [39(c)]
Additionally, or in the alternative, the applicant submits the Tribunal failed to give genuine and realistic consideration to the evidence.[51]
[51] Outline of Submission for Applicant [42]
The Minister submits the applicant’s submissions are based on an incomplete characterisation of the Tribunal’s reasoning.
Determination
The applicant’s submissions are premised on a number of assumptions that are not correct. The first assumption is that the Credibility Concerns relate to the applicant’s and the Sponsor’s credibility in general. That is a correct characterisation of the Tribunal’s findings based on the applicant and the Sponsor having provided misleading information to the ATO, and in having given inconsistent evidence in relation to their having a Facebook account. It is not a correct characterisation of the Tribunal’s findings about the inconsistent evidence the applicant and the Sponsor gave about who lives at the Yagoona property. Evidence about who lives at the Yagoona property was directly relevant to whether the applicant and the Sponsor lived at that address, and, if they did, whether they did so in a manner that could rationally affect the assessment of the nature of the household that existed, and, further, the social aspects of the relationship, and the nature of their commitment to each other.
The second assumption is that the Tribunal relied on the dob-in letter to form an adverse view of the credibility of the applicant and the Sponsor. That is incorrect. As I have already concluded, the Tribunal relied on adverse views it formed of the applicant’s and the Sponsor’s credibility, without reference to the dob-in letter, to conclude it was not satisfied that the allegations made in the dob-in letter were without foundation; and to rely on that conclusion to confirm the adverse view the Tribunal had already formed about the applicant’s and the Sponsor’s credibility without reference to the dob-in letter.
The third assumption is that the Tribunal discounted or gave less weight to the evidence of the Sponsor’s parents, the applicant’s uncle and aunt, and the applicant’s employer, because of the Credibility Concerns. That is not correct.
(a)The Tribunal accepted the Sponsor’s parents’ evidence; and on the basis of that acceptance found it supported the applicant’s claims that she and the Sponsor are legally married, and that they did some sightseeing with the applicant and Sponsor during their visit to Australia. The Tribunal, however, found that this evidence did not support the claim that the relationship between the applicant and the Sponsor is widely or socially declared as one of spouses in Australia or Vietnam.[52] The Tribunal did not make this finding after weighing against the Sponsor’s parents’ evidence any of the Credibility Concerns; and given the contents of the Sponsor’s parents’ statutory declaration,[53] this was a finding that was reasonably open to the Tribunal.
(b)The Tribunal gave some weight to the evidence of the applicant’s uncle and aunt to support the parties being legally married, and to support the aunt and uncle having occasionally been to the house in Yagoona. In making these findings the Tribunal did not refer to, or otherwise take into account any of, the Credibility Concerns; the Tribunal relied on a number of other matters. These were the applicant’s aunt and uncle stating that the applicant and the Sponsor have “structured financial planning” in circumstances where the Tribunal saw very little evidence of the parties having any type of structured financial planning; and the applicant’s aunt and uncle having stated in their written statements that they regularly went to the applicant’s house, but in the second hearing the applicant’s aunt having stated that they only went there “occasionally”, which the Tribunal found suggested irregular visits.[54]
[52] CB337, [39]
[53] CB289-291
[54] CB337, [40]
A fourth assumption is that a general adverse credibility finding in relation to the applicant and the Sponsor is not relevant to assessing the weight to be given to the documents on which the applicant and Sponsor relied, and to the evidence of the Sponsor’s parents and the applicant’s aunt and uncle. That would be incorrect. Although inferences may be, and often are, drawn on the basis of documents about the truth of the matters stated in documents and the purposes and circumstances in which such documents were created, it would be open to a reasonable decision-maker not to draw such inferences in relation to documents that have been produced by a person (person in question) whom the decision-maker has found had provided misleading documents to government authorities such as the ATO. Similarly, where a decision-maker has reasonably formed the view that the person in question is not credible because he or she has shown a willingness to misrepresent things to others, it would be reasonably open to the decision-maker not to draw inferences favourable to the person in question based on evidence given by another person about what the person in question had said or done; and that would be because it would be open to the decision-maker to find that, although the person giving the evidence has given an accurate account of what the person in question said or did, the person in question said or engaged in the conduct to convey a misrepresentation. These considerations, however, do not apply in the case before me, because I have not accepted the applicant’s submission that the Tribunal discounted or rejected the evidence of the applicant’s aunt and uncle, or the evidence of the Sponsor’s parents, on the basis of any of the Credibility Concerns.
A fifth assumption on which the applicant might be relying is that, given the documentary evidence on which the applicant relied, together with the evidence of the Sponsor’s parents and the applicant’s aunt and uncle, no reasonable decision-maker in the position of the Tribunal could have concluded otherwise than that the applicant and the Sponsor were in a married relationship within the meaning of s 5F(2) of the Act and, for this reason, it was not reasonably open to the Tribunal to rely on any of the Credibility Concerns. To the extent the applicant relies on any such assumption, I would not accept it. It would have been open to a reasonable decision-maker in the position of the Tribunal not to be satisfied on the basis of such material that the applicant and the Sponsor were in a married relationship within the meaning of s 5F(2) of the Act.
I then turn to the applicant’s submissions that the Tribunal failed to give genuine and realistic consideration to the evidence. I do not accept that submission. The Tribunal identified, considered, and made findings in relation to each item or class of items of evidence on which the applicant relied. The Tribunal then considered those findings together with other material to make findings in relation to each of the circumstances of the relationship between the applicant and the Sponsor that reg 1.15A(3) of the Regulations required the Tribunal to consider.
For these reasons, ground 3 fails.
DISPOSITION
I propose to order that the application be dismissed.
Counsel agreed that costs should follow the event. Counsel for the Minister submitted that if the Minister were to succeed the Minister would seek an order that the applicant pay the Minister’s costs set in the amount provided for by Part 2 of Schedule 2 to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth). That amount is $7,853. I will therefore also order that the applicant pay the Minister’s costs set in the amount of $7,853.
I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis. Associate:
Dated: 29 March 2022
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