Pham v Minister for Immigration

[2019] FCCA 1945

FEDERAL CIRCUIT COURT OF AUSTRALIA

PHAM v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 1945

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Partner (Residence) (class BS) visa – whether the Tribunal considered all integers of the applicant’s claims – wither the Tribunal had an obligation to adjourn the matter – whether the Tribunal breached s.360 of the Act – no jurisdictional error made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5F, 360, 476

Applicant: VAN SON PHAM

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3666 of 2016

Judgment of: Judge Street

Hearing date: 15 July 2019

Date of Last Submission: 15 July 2019

Delivered at: Sydney

Delivered on: 15 July 2019

REPRESENTATION

Counsel for the Applicant: Mr P Bodisco

Solicitors for the Applicant: Andy Pham Lawyers

Counsel for the Respondents: Mr T Reilly

Solicitors for the Respondents: DLA Piper

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $6,000.00.

DATE OF ORDER: 15 July 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3666 of 2016

VAN SON PHAM

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 24 November 2016 affirming the decision of the delegate not to grant the applicant a Partner (Residence) (class BS) visa.

2. The applicant is a citizen of Vietnam who arrived in Australia on 6 January 2010. The applicant lodged the application for a partner visa on 10 October 2012. On 22 October 2015, the delegate found the applicant failed to meet the criteria for the grant of the Partner visa.

3. The applicant applied for a review on 5 November 2015. The parties were found to have been legally married by the Tribunal and the Tribunal found that the applicant moved out of the sponsor’s home on 10 October 2016. The applicant asserted that the relationship had come to an end because of domestic violence and there were on foot at the time of the review before the Tribunal, proceedings in which there had been made an interim domestic violence order dated 10 November 2016 which was to be returnable before the local Court on 23 February 2017.

4. By letter dated 20 September 2016, the applicant was invited to and attended a hearing before the Tribunal on 17 November 2016. A transcript of that hearing has been tendered. The transcript identifies a late provision of some 300 pages of material relating to the applicant’s claims concerning domestic violence. The transcript expressly identifies that the Tribunal member had read that 300‑page material. At the commencement of the hearing the Tribunal member explained that if there was a finding that there was genuine spousal relationship, then the Tribunal would defer the making of a decision until after the final Court hearing date for the Apprehended Domestic Violence Order.

5. That statement appears on page 3 of the transcript which explained in detail that the Tribunal would first consider whether there was a genuine and continuing spousal relationship with the sponsor. This issue was re-agitated before the Tribunal where the Tribunal member explained, on page 23:

   I’ve not made a determination about whether you were in a genuine spousal relationship with your sponsor. Should I find that you were not in a genuine spousal relationship with your sponsor, I will go directly to making a decision. Should I find that you were in a genuine spousal relationship, I will then go on to consider your claim for family violence. If that is the case, and in respect of fairness, I will then defer my decision until one week after 23 February 2017.

6. The applicant’s representative acknowledged what was said by the member at the hearing.

7. The Tribunal identified the requirements of r 1.15A of the Migration Regulations 1994 (Cth) (“the Regulations”) and found that it was not satisfied that the parties melded together to manage household matters. The Tribunal found there was little evidence to support that the sponsor committed to a shared life with the applicant or to show how the parties offered each other companionship and support. The Tribunal referred to the evidence, when combined with the lack of any committed plans by the parties for their future together as husband and wife, led the Tribunal to not be satisfied the parties shared a spousal relationship. The Tribunal found there was little evidence about how the parties shared their lives together, cared for each other, offered each other emotional support or were committed to the relationship.

8. It was in these circumstances the Tribunal was not satisfied that a spousal relationship ever existed between the parties.

9. The Tribunal found the applicant could not satisfy the requirements of cl 801.221(2) of Schedule 2 of the Regulations. The Tribunal expressly identified that it had considered the information about the claims of family violence insofar as it related to the parties’ relationship. The Tribunal found, however, that it was not satisfied the parties shared a spousal relationship and, in those circumstances, did not proceed to determine the claims of family violence. The Tribunal found that the applicant did not meet the requirements of cl 801.221 of Schedule 2 of the Regulations and affirmed the decision under review.

Before this Court

1. The grounds in the original application are as follows:

   Ground One:

   The Tribunal has failed to have regard to the full integers of the Applicant's claim.

   Particular

   The Tribunal failed to have regard to evidence of family violence when assessing the credibility of the Applicant.

   Ground Two:

   The Tribunal has denied the Applicant procedural fairness to the Applicant and/or breached section 360 of the Migration Act 1958 (Cth).

   Particular

   The Tribunal failed to have regard to submission forwarded to the Tribunal from the Applicant's Migration Agent requesting an adjournment of the matter to be postponed until a hearing had occurred at the Burwood Local Court into the Police Domestic Apprehended Violence Order listed on 23 February 2017.

2. Mr Bodisco of counsel on behalf of the applicant confirmed that ground 3 was not pressed.

Ground 1

1. At the commencement of the hearing, the Court raised with Mr Bodisco whether ground 1 could be pressed in light of paragraph 30 of the Tribunal’s reasons. Although Mr Bodisco initially indicated that he did not press the same, his argument clearly re-enlivened the proposition that there was a failure to have regard to the domestic violence material in determining whether there ever existed a genuine spousal relationship. Paragraph 30 is directly inconsistent with that contention and accordingly there is no substance in ground 1 of the application. It is clear that the Tribunal expressly took the same into account insofar as it related to the parties’ relationship. Ground 1 fails to make out any jurisdictional error.

Ground 2

1. In relation to ground 2, Mr Bodisco contended that the circumstances of the present case in relation to the claims of domestic violence meant that the Tribunal needed to have considered the material on domestic violence before determining whether there was a spousal relationship. It is clear the Tribunal did take into account the evidence that was adduced in respect of the domestic violence as referred to in paragraph 30.

2. Mr Bodisco submitted that the Tribunal should have adjourned the matter. It is apparent on the material that there was only a limited proposition advanced in respect of an adjournment in the written submissions sent on behalf of the applicant to the Tribunal. That request for an adjournment was heavily qualified and was contained in a communication sent by email on 16 November 2016. The hearing before the Tribunal occurred on 17 November 2016. There was no suggestion that there should be a further adjournment of the proceedings advanced on the applicant’s behalf at the hearing on 17 November 2016.

3. There was no objection at the hearing to the course identified by the Tribunal member in determining whether or not there was a spousal relationship before proceeding to deal with the issue of whether there had been established family violence or whether the Tribunal was required to refer the matter for expert determination. The Tribunal was correct in holding that it did not have to determine those issues in circumstances where it found there was no spousal relationship.

4. It is apparent from the request that was made at page 661 of the Court Book and the letter dated 16 November 2016 that the request for an adjournment was only based on the proposition if the Tribunal did not accept the sponsor’s solicitor sought an opportunity to be heard on 10 November 2016 before the Court it was then requested that the Tribunal postpone the making of a decision in this matter until one week after 23 February 2017.

5. The Tribunal expressly identified that if it found there was a genuine spousal relationship it would defer the making of a decision until one week after the hearing on 23 February 2017. It is also apparent from the communication that what was occurring on 23 February 2017 was the next listing of the matter and it was likely that the Court would then continue the interim order on that occasion or make a final order in its place. There is no denial of procedural fairness in the circumstances of the present case in the Tribunal not adjourning the proceedings until after 23 February 2017 where the Tribunal had made clear of its intention to first determine whether there was a spousal relationship.

6. No further request for an adjournment was pressed or advanced on behalf of the applicant. The applicant clearly had adduced the evidence which the applicant contended was relevant to the existence of the relationship in the context of the domestic violence material that was belatedly provided and which the Tribunal expressly acknowledged it has read before the commencement of the hearing. Mr Bodisco put an argument that the final determination of whether there had been relevant domestic violence could impact on the existence of the domestic relationship.

7. In circumstances where the applicant was invited to and attended a hearing to determine whether there was a spousal relationship and had a real and meaningful hearing consistent with the requirements of s 360 of the Act. There was no further obligation upon the Tribunal to adjourn the matter for the purpose of having before it all material in respect of a judicially-determined or a non-judicially determined domestic violence issue. That is because it was not necessary for the Tribunal to deal with that issue having found there was no spousal relationship.

8. The applicant was clearly on notice as to the nature of that issue and had the opportunity of putting on submissions in relation to the issues capable of arising, including domestic violence and did so prior to the hearing and upon the face of the transcript it is apparent that the applicant had a real and meaningful hearing on the issues as to whether there was a spousal relationship before the Tribunal. To the extent that Mr Bodisco contended the Tribunal must proceed to determine the issue of domestic violence, either judicially determined or non-judicially determined, before concluding whether or not there is a spousal relationship, there is no authority to support that proposition.

9. The applicant had a real and meaningful opportunity to address the issue in respect of whether there was ever a spousal relationship within the meaning of the Act and the Tribunal provided logical and rational reasons in support of its adverse finding. In these circumstances, where the Tribunal had identified what would occur if it found there was a spousal relationship and what would occur if it did not find there was a spousal relationship, there is no substance in the contention that there was any denial of procedure fairness and no substance in the contention that there was any breach of s 360 of the Act.

10. The applicant did appear before the Tribunal to give evidence and present arguments in relation to the issues arising in relation to the decision under review. Insofar as the particulars contend the matter should have been postponed until the hearing had occurred on 23 February 2017, it is apparent that at the hearing before the Tribunal, the Tribunal explained the course it proposed to take. That course was logical and rational and it cannot be said that the absence of an express consideration of an adjournment of the proceedings until after 23 February 2017 lacks an evident and intelligible justification.

11. Moreover, the only adjournment application that was advanced was of a very confined nature in relation to whether the Tribunal was not satisfied as to the sponsor’s solicitor’s opportunity to be heard on 10 November 2016. That does not identify any basis upon which it could be said the Tribunal acted legally unreasonably or in breach of the requirements of procedural fairness by not further adjourning the proceedings until after 23 February 2017.

12. Mr Bodisco took the Court to the material in support of the domestic violence allegations and, in particular, to the statement provided by the applicant to the police and sought to agitate the significance of the making of a statement with the consequences that would flow if it were false. This was, in substance, an invitation to this Court to engage in merits review. There is no basis to find that the Tribunal did not take into account the material that was advanced in respect of the alleged domestic violence insofar as it impacted on the relationship.

13. It is apparent from the Tribunal’s reasons that the Tribunal did accept that the parties were married and that the parties lived together for a time and shared some social interaction. The Tribunal, however, correctly identified the relevant law in respect of the requirements of the meaning of s.5F of the Act and made adverse findings that were open to it. No jurisdictional error is made out by ground 2.

14. As ground 3 is not pressed, there is no need for the Court to address ground 3.

15. As the application fails to make out any jurisdictional error, the application is dismissed.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:  

Date:  4 September 2019