Nhoung v Minister for Immigration
[2019] FCCA 1195
•6 June 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| NHOUNG v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 1195 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a partner visa – applicant providing false or misleading information about the relationship – Tribunal refusing to waive the public interest criterion – whether the Tribunal misunderstood or overlooked a submission made on behalf of the applicant concerning the public interest in protecting victims of family violence – no jurisdictional error as the submission was considered adequately. |
| Legislation: Migration Act 1958 (Cth), s.351 Migration Regulations 1994 (Cth) |
| Cases cited: CDH16 v Minister for Immigration [2018] FCA 668 Minister for Immigration v Guo (1997) 191 CLR 559 Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 MZABA v Minister for Immigration (2015) 234 FCR 425 Salahuddin v Minister for Immigration (2013) 140 ALD 1 SZOVB v Minister for Immigration (2011) 125 ALD 38 SZSSC v Minister for Immigration (2014) 317 ALR 365 |
| Applicant: | VEASNA NHOUNG |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3114 of 2017 |
| Judgment of: | Judge Driver |
| Hearing date: | 7 May 2019 |
| Delivered at: | Sydney |
| Delivered on: | 6 June 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr L Karp |
| Solicitors for the Applicant: | D'Ambra Murphy Lawyers |
| Counsel for the Respondents: | Mr C Lenehan |
| Solicitors for the Respondents: | HWL Ebsworth |
ORDERS
The application filed on 9 October 2017 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3114 of 2017
| VEASNA NHOUNG |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant (Mr Nhoung) seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 4 September 2017. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant Mr Nhoung a partner (residence) visa.
The following statement of background facts is derived from written submissions filed on behalf of Mr Nhoung on 23 April 2019.
Mr Nhoung, a Cambodian national, first entered Australia in 2008 to visit family. He made another short visit in 2010 for the same reason.[1] During another visit, in mid 2012, he married Ms Phally Khuth.[2] Ms Khuth is an Australia citizen by grant.[3] Mr Nhoung applied for a partner visa on 29 January 2013, sponsored by Ms Khuth.[4] Mr Nhoung’s subclass 820 temporary visa was granted on 8 May 2013.[5]
[1] Court Book (CB) 2
[2] CB 70
[3] CB 111
[4] CB 1ff
[5] CB 121ff
Mr Nhoung’s application for a subclass 801 permanent visa was to be considered on or after 29 January 2015, that being the end of the two year period after application referred to in clause 801.221(2)(d) of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations). In preparation for the assessment of his subclass 801 visa application both Mr Nhoung[6] and Ms Khuth[7] made statutory declarations attesting to the continued existence and genuineness of the relationship. Those statutory declarations were made on 21 January 2015. Two of their friends[8] made supporting statutory declarations dated 29 January 2015.
[6] at CB 138-140
[7] at CB 150-152
[8] CB 155-158
The difficulty was that at the time that those statutory declarations were made, the situations described therein were no longer true. On 21 April 2015 an officer of the Minister’s Department contacted Ms Khuth via a Khmer interpreter and she admitted that Mr Nhoung had left her on 20 January 2015.[9] Mr Nhoung was invited to comment on that information in a letter dated 6 May 2015.[10] Despite a short reply, the subclass 801 visa application was rejected on 29 July 2015. A delegate reasoned that the relationship was not genuine and continuing.[11]
[9] CB 170-171
[10] CB 176-178
[11] CB 192
On 27 October 2016, the Tribunal remitted the matter to the Minister’s Department on the basis of what it called substantial evidence that the relationship had been genuine and that family violence occurred during the relationship.[12]
[12] CB 210-214, especially CB 214
Upon remitter the Minister’s Department reasoned differently. It wrote to Mr Nhoung on 2 January 2017 suggesting that he may have acted in breach of Public Interest Criterion (PIC) 4020.[13] PIC 4020 states:
[13] CB 228-231
(1)There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal during the review of a Part 5‑reviewable decision, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:
(a)the application for the visa; or
(b)a visa that the applicant held in the period of 12 months before the application was made.
…
(4)The Minister may waive the requirements of any or all of paragraphs (1)(a) or (b) and subclause (2) if satisfied that:
(a)compelling circumstances that affect the interests of Australia; or
(b)compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;
justify the granting of the visa.
(5) In this clause:
information that is false or misleading in a material particular means information that is:
(a)false or misleading at the time it is given; and
(b)relevant to any of the criteria the Minister may consider when making a decision on an application, whether or not the decision is made because of that information.
Note:For the definition of bogus document, see subsection 5(1) of the Act.
Mr Nhoung’s migration agent conceded that false and misleading information was given to the Minister’s Department, but submitted that the waiver provisions of PIC 4020(4) applied.[14] Documents sufficient to satisfy the evidentiary requirements for proving family violence were also submitted.[15] On 10 February 2017 the delegate refused the application for a permanent partner visa because of a breach of PIC 4020, and consequent failure to meet clause 801.226 of Schedule 2.[16] The application for review was lodged on 27 February 2017.[17]
[14] CB 233-234
[15] CB 235-247
[16] CB 257
[17] CB 274-276, 283
The matter before the second Tribunal
On 27 August 2017 Mr Nhoung’s new solicitor and migration agent, Mr Murphy, lodged an extensive submission with the Tribunal (differently constituted) arguing that the requirements of paragraph (1)(a) of PIC 4020 should be waived. Mr Murphy submitted that family violence was both an endemic problem in Australian society and a matter of considerable public and political debate. He submitted, addressing PIC 4020(4)(a), that:[18]
a)the discretion requires a balancing of the nature of the false information with the competing circumstances and the national interest;
b)the context of the provision of the false information was that Mr Nhoung had limited knowledge of the support options available to him and no concept of counselling, and indeed no knowledge that he could have relied on family violence to support his visa application;
c)Mr Nhoung has not benefited from his mistake. Indeed, he would have been better off giving the correct information. The finding of a marriage breakdown due to family violence would have been possible in 2015. Therefore the effect of the PIC 4020 decision was to punish him for not giving the correct information sooner. This is inconsistent with the intention of PIC 4020, which is to prevent people benefiting from giving false information;
d)there are strong community attitudes reflected in government action in countering the scourge of family violence; and
e)protecting the victims of family violence is a compelling issue affecting the interests of Australia and Australians, and in these circumstances the grant of the visa is justified.
[18] at CB 303-304
The Tribunal decision
The breach of PIC 4020 having been admitted, the issue before the Tribunal was whether the waiver should be applied. The Tribunal made extensive reference to Mr Murphy’s submissions. The Tribunal at [31][19] stated that it did not consider that public sentiment and community condemnation of family violence were reasons to find that, “in the circumstances of this case, [Mr Nhoung] should not have to meet PIC 4020 criteria because his suffering of family violence is in the interests of Australia”.
[19] CB 326
It then commented, correctly, that “compelling matters that would affect the interests of Australia” (sic) are not defined in the legislation, but they have in the past included interests affecting Australian businesses, economic ties, cultural development, foreign relations and so forth. It found that whether a particular case constitutes compelling circumstances affecting Australia is a question of fact and evidence.[20]
[20] CB 326 at [33]
The Tribunal, whilst accepting that family violence had occurred, then addressed a rhetorical proposition; that family violence is a crime. It accepted that family violence is a crime, and did not dispute the findings of the independent expert, but found that the fact that there was family violence was not determinative of waiving the PIC 4020 criteria. The Tribunal then moved to the strength of Mr Nhoung’s ties with Australia and whether he could return to Cambodia. It found that he could return to and live in Cambodia. It found itself not satisfied that the requirements of PIC 4020 should be waived.[21]
[21] CB 327 at [36]-[38]
The Tribunal accepted that Mr Nhoung had suffered family violence, but found that there was no reason why he could not return to Cambodia given that he had relatives there and had lived there most of his life. It was not satisfied that the requirements of PIC 4020 should be waived.[22]
[22] CB 327-328 [42]-[44]
The present proceedings
These proceedings began with a show cause application on 9 October 2017. Mr Nhoung continues to rely upon that application. The single ground in that application is:
1. The Tribunal misunderstood and failed to consider and address written submissions made by the applicant’s solicitor and migration agent on whether clause 4020(4) of Schedule 4 of the Migration Regulations 1994 applied in the applicant’s case.
Particulars
(a) The submission was to the effect that given the importance that Australia’s governments and society has placed on family violence, protecting individuals from its effects is in the national interest and that in these circumstances the grant of the visa is justified.
I have before me as evidence the court book filed on 31 January 2018. Both Mr Nhoung and the Minister filed pre-hearing written submissions and made oral submissions through their representatives at the trial of this matter on 7 May 2019.
Consideration
Mr Nhoung’s contentions
The essence of Mr Nhoung’s complaint is that the Tribunal failed to properly engage with the submission put to it by Mr Nhoung’s representative before the Tribunal, concerning the public interest in protecting victims of family violence from forced removal.
It has been accepted, at least since the judgment of Griffiths J in SZSSC v Minister for Immigration[23] that a failure of the Tribunal to consider and determine a submission of substance can amount to jurisdictional error.[24] In CDH16 v Minister for Immigration,[25] Kerr J referred to the following statement of principles at [62], in the context of a protection visa case:
The principles to be applied in determining whether a jurisdictional error of this nature has been made include that:
a.the submission should be one of substance and that is clearly articulated. Substantiality may be established, for example, where the submissions is [sic] made in response to an important issue that the decision maker has raised: SZSSC at [81(a)];
b.it is appropriate to “pay careful attention to the structure” of the decision maker’s reasons, including the manner in which the reasons describe and deal with the submissions made by the applicant: SZSSC at [81(e)];
c.in determining whether the submission is one that the decision maker was obliged to consider, regard should be had to its place in the assessment of the applicant's claims: SZSSC at [81(f)];
d.if the submission is a contention which, if accepted, might have established that the applicant “had a well-founded fear of persecution for a Convention reason”, it is more likely to be a submission to which consideration had to be given: SZSSC at [81(c)]; MZABA v Minister for Immigration and Border Protection [2015] FCA 711; (2015) 234 FCR 425 at [57]. The same must be true if the submission is one which, if accepted, might have established that the applicant satisfied the criterion in s 36(2)(aa).
[23] (2014) 317 ALR 365
[24] at [75]
[25] [2018] FCA 668
In the context of a non refugee case, point “d” in [17] above could fairly be applied to a submission which, if accepted, could have established the whole or part of the applicant’s case.
The relevant part of Mr Murphy’s submission of 27 August 2017 was:[26]
There are strong community attitudes towards protecting people who are victims of family violence … These views have not diminished over time, as the scourge of family violence continues to bedevil the community.
Governments around the country continue to speak out against this scourge and provide funding support for organisations working with the victims and for the individual victims as well. The provision giving a pathway for residence for those who are victims of family violence in the family migration stream is a long established provision, going back 26 years to 1991.
Protection of victims of family violence is a compelling issue affecting the interests of Australia, and of Australians in general. It is submitted that in these circumstances the grant of the visa is justified and therefore the discretion ought to be exercised in favour of the applicant.
[26] at CB 304
This submission directly addressed the central issue before the Tribunal. Central to it was the argument that protection of victims of family violence, through giving the victims access to a pathway to residence was in the interests of Australia. The Tribunal stated at [28][27] and [31][28] that it had considered the submissions. Whether it did so is to be approached as a question of substance, rather than form.[29] In Mr Nhoung’s submission, there is nothing in the Tribunal decision that addressed the submission about protection of victims of family violence as clearly articulated by Mr Murphy.
[27] CB 325
[28] CB 326
[29] SZOVB v Minister for Immigration (2011) 125 ALD 38 at [43]
Minister’s contentions
In addition to the authorities cited by Mr Nhoung, a useful summary of the approach to be applied appears at [24] of MZABA v Minister for Immigration.[30] As Bromberg J noted in that matter, the burden is on the appellant to persuade the Court that any failure to deal with a submission is a jurisdictional error.[31]
[30] (2015) 234 FCR 425
[31] and see also SZSSC at [81(g)]
Further, in considering whether jurisdictional error has been established, it is important not to lose sight of the oft-cited principle that the Tribunal’s reasons are not to be approached with an eye keenly attuned to detection of error.[32]
[32] Salahuddin v Minister for Immigration (2013) 140 ALD 1, [19]-[20]; Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259
Mr Nhoung’s submissions isolate a particular written submission made by his legal representative to the Tribunal. This submission is said to have addressed (in effect) the importance that the Australian community has placed upon the protection of individuals from family violence.[33] It seems to be said that, had the Tribunal taken this submission into account, it could have resulted in a different outcome, ie, the Tribunal could have found that the requirements of clause 4020(1) and (2) of Schedule 4 to the Regulations should be waived, by reason of “compelling circumstances that affect the interests of Australia”.[34] It is also said[35] that the Tribunal failed to take this submission into account, notwithstanding that the Tribunal actually stated[36] that it did. In this regard, Mr Nhoung goes as far as to say there is “nothing in the Tribunal decision that addressed the submission about protection of victims of family violence”.
[33] Mr Nhoung’s submissions at [14], referring to CB 304
[34] see Mr Nhoung’s submissions at [13], and see clause 4020(4)(a) of Schedule 4 to the Regulations
[35] Mr Nhoung’s submissions at [15]
[36] at [28], [31]
The Minister submits that, paying due regard to the structure of the decision and to the terms of the reasons themselves,[37] and giving those reasons the appropriately beneficial construction,[38] the Tribunal’s consideration of the written submission isolated by Mr Nhoung was not limited to mere assertions that it took that submission into account.[39] Rather, the Tribunal addressed the submission and seriously considered it, including by discussing it in detail and accepting the factual premise upon it was based, and found that it was not persuaded by it, having regard to the circumstances of Mr Nhoung’s case.
[37] and see SZSSC at [81(e)]
[38] see Wu Shan Liang at 271-772
[39] cf. Minister for Immigration v Guo (1997) 191 CLR 559, 595, contra Mr Nhoung’s submissions at [15]
The Tribunal identified the relevant question, being whether the requirements of clause 4020(1) or (2) should be waived. The Tribunal further isolated the question, noting that it had confirmed the relevant provision upon which Mr Nhoung relied was clause 4020(4)(a).[40]
[40] see CB 325 at [27]
The Tribunal then identified the gist of the very submission which Mr Nhoung claims it ignored,[41] stating Mr Nhoung had submitted that “particularly in the last five or six years family violence has been high on the political and social agendas which is why family violence comes with the waiver provisions now”. The Tribunal then went on[42] to summarise Mr Nhoung’s written submission concerning that matter. It referred to external sources that made good the proposition that family violence was the subject of community concern, including:
a)a report by the Victorian Royal Commission into Family Violence;[43]
b)the fact that the Regulations had created an exception, granting partner visas to persons who were the subject of family violence;[44] and
c)the then Prime Minister’s address to a White Ribbon breakfast in 2015.[45]
[41] CB 325 at [28]
[42] CB 325 at [29]
[43] and see CB 297-298 for the primary submission making reference to that report
[44] and see CB 300 for the primary submission making reference to that exemption
[45] and see CB 300 for the primary submission making reference to that address
The Tribunal also accepted the factual basis for the submission, stating:[46]
The Tribunal accepts that community attitudes, and attitudes of law enforcement agencies, and politicians, favour supporting victims of family violence and that the prevailing sentiment is that family violence should not be tolerated and the Tribunal agrees.
[46] CB 325-326 at [29]
After noting, and accepting, that an independent expert’s report contained “significant” findings, the Tribunal then noted an apparently separate submission that there should be a “balancing of the nature of the false information with the compelling circumstances and national interest”, and that balancing favoured Mr Nhoung because he was not aware he could rely upon an exemption in the Regulations concerning family violence, and because Mr Nhoung had not benefited from his mistake in providing false information to the Minister’s Department.[47]
[47] CB 326 at [30]
At [31], the Tribunal stated that it had “considered the submissions”. In context this is said to be plainly a statement that the Tribunal had considered both the submission summarised concerning “community attitudes”, and the further submissions summarised above. After summarising various factual findings concerning Mr Nhoung’s circumstances and provision of false information, the Tribunal concluded:[48]
There is no question or argument that family violence is unacceptable and, when reported to police and prosecuted, becomes a criminal matter. However, the Tribunal does not consider that public sentiment and community condemnation of family violence are reasons to find that, in the circumstances of this case, the applicant should not have to meet PIC 4020 criteria because his suffering of family violence is in the interests of Australia.
[48] CB 326 at [31]
The Tribunal then went on to explain the basis for that conclusion by reference to the particular circumstances of Mr Nhoung’s case.
In that regard, first, at [33], the Tribunal set out the noted various matters which might be considered to be compelling within the meaning of clause 4020(4)(a).[49] The Tribunal commented:[50]
Ultimately, it is a question of fact and evidence for the Tribunal whether a particular case constitutes compelling circumstances affecting Australia.
[49] eg “an adverse effect on Australia’s trade or business opportunities, damage to the relationship between Australia and a foreign government”
[50] CB 326 at [33]
Secondly, at [34]-[35], the Tribunal acknowledged the Tribunal had remitted Mr Nhoung’s matter to the Minister’s Department because there was an independent expert’s report to the effect that family violence had occurred.
Thirdly, at [36]-[38] the Tribunal considered and rejected a submission that the relevant family violence was criminal in nature, noting that the allegations made had never been tested “in a criminal court”.
Fourthly, at [39]-[40], the Tribunal noted that Mr Nhoung’s relationship with the alleged perpetrator of family violence had ended (so there was no suggestion he would be sent back to Cambodia to avoid being a victim of domestic violence), and found there was no suggestion he would be returning to any family violence in Cambodia.
Fifthly, at [41]-[42], the Tribunal addressed Mr Nhoung’s personal and family circumstances, including where he had lived during his life, and concluded there was “no reason, in the view of the Tribunal, why he cannot return to Cambodia”.
The Tribunal then concluded:[51]
The Tribunal is not satisfied, having considered all facts and matters, that there are compelling reasons in the interests of Australia that justify waiving the PIC 4020 criteria and finds that requirements of cl. 4020(1) or (2) should not be waived.
[51] at CB 328 at [43]
This reasoning is said to represent a considered engagement with the submission said to have been ignored, by reference to the particular circumstances confronted by Mr Nhoung. The Minister submits that no jurisdictional error has been established.
Resolution
I prefer the Minister’s submissions in respect of the ground raised. The extensive submissions made on behalf of Mr Nhoung[52] required careful consideration by the Tribunal and, in my opinion, they received that consideration, regardless of what one may feel about the merits of the outcome. The Tribunal dealt specifically with those submissions at [28]-[39].[53] For present purposes, the heart of that consideration is relevantly at [31]:[54]
The Tribunal has considered the submissions. The applicant was in a relationship with the sponsor characterised by family violence. An Independent Expert found that he had suffered family violence. He left the family home on 20 January 2017 and moved in with his sister Linda and, after that date, provided false or misleading information to the Department claiming to still be in a genuine and continuing marriage with the sponsor. He provided statutory declarations from himself, his sponsor and two other witnesses. They were declared in front of a migration agent who is also a community advocate for Cambodian people ,who he says he started to seek help from in late 2014. The relationship broke down on 20 January 2017, the applicant has received ongoing support from family and from professionals regarding the family violence since 2016. Evidence was heard at the hearing that he “…now feels better because he got a lot of counselling”. There is no question or argument that family violence is unacceptable and, when reported to police and prosecuted, becomes a criminal matter. However, the Tribunal does not consider that public sentiment and community condemnation of family violence are reasons to find that, in the circumstances of this case, the applicant should not have to meet PIC 4020 criteria because his suffering of family violence is in the interests of Australia.
[52] CB 295-304
[53] CB 325-327
[54] CB 326
In my view, the Tribunal in this case did actively engage intellectually with the submission made by Mr Nhoung. The Tribunal clearly understood the point that was sought to be made on behalf of Mr Nhoung but rejected, at least on the facts of this case, the proposition that the public interest in providing protection against family violence should override the public interest in protecting the integrity of the visa assessment process from false or misleading information.
That said, however, in my view, there are unsatisfactory aspects of this case that merit further consideration being given to it by the Minister. First, it is accepted that Mr Nhoung is a victim of family violence and the first Tribunal concluded that Mr Nhoung met the criterion in clause 801.221(6)(b) and (c) of Schedule 2 to the Regulations.[55] The approach taken by the delegate on remittal (and the Tribunal on review) diverged substantially from both the spirit and the letter of the first Tribunal decision.
[55] CB 210
Secondly, there is no real doubt that Mr Nhoung and Ms Khuth were in a genuine relationship for a period of about two years. They were granted a temporary partner visa on the basis of that relationship and there is no suggestion that that visa should not have been granted.
Thirdly, the false or misleading information in this case was provided in statutory declarations made on 21 January 2015 by Mr Nhoung and Ms Khuth. Two friends made supporting statutory declarations on 29 January 2015. Something happened on 20 January 2015 that caused Mr Nhoung to leave the family home. He never returned. Although, with the benefit of hindsight, it can be said with certainty that the relationship broke down the day before the statutory declarations were made by Mr Nhoung and Ms Khuth, I doubt that it could be said with any certainty that either Mr Nhoung or Ms Khuth knew that they were making false declarations on the day that they made them. The declarations were made the day after Mr Nhoung left the family home and it may well be that Mr Nhoung was giving an honest appraisal of the situation to the second Tribunal when he told it that he was unsure on the day after he left that the relationship had irretrievably broken down. His difficulty was that this had become clear by April 2015 when the Minister’s Department contacted Ms Khuth and later invited him to comment on the proposition that the relationship was not genuine and continuing. It was conceded on behalf of Mr Nhoung that he had made false or misleading statements in support of his visa application. It may be that that concession was too readily made but, by the time of the second Tribunal decision, it was too late to retreat from it.
It is also relevant, in my view, that one of the false declarations was made by Ms Khuth, who may have had her own reasons for maintaining the pretence of an ongoing relationship. The report of the independent expert who found that relevant family violence had occurred provides reasons why that may have been so. The relative fault of Mr Nhoung and Ms Khuth in making those declarations the day after he left is something that, in my view, should be taken into account.
The family violence criterion for a partner visa provides in effect, a “safe house” for victims of family violence. Mr Nhoung is such a victim. The public interest criterion supports the integrity of the assessment process by permitting decision makers to deny entry to that safe house to persons who have been untruthful. Where that untruthfulness relates to false allegations of family violence, the force of that public interest is obvious. Where, however, that untruthfulness is unrelated to the family violence, the situation is more nuanced.
In my view, the unusual circumstances of this case merit consideration by the Minister, pursuant to s.351 of the Migration Act 1958 (Cth). That is a matter for consideration by the Minister’s Department in the first instance.
Conclusion
Mr Nhuong has failed to establish that the decision of the Tribunal is affected by any jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 6 June 2019
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