Pham v Minister for Immigration - [2007] FMCA 827

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PHAM v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 827

MIGRATION – Spouse visa – whether failure to take into account relevant witness statements – whether statements posted and/or received by Tribunal before decision – obligation to consider material – jurisdictional error – Regulation 1.15A(3) – whether relevant evidence ignored – whether necessary to make finding of claims regarding domestic violence where adverse finding made in relation to genuine spousal relationship – application allowed.

Migration Regulations 1994
Acts Interpretation Act 1901, s.29
Evidence Act 1995 (Cth), s.160
Migration Act 1958, ss.357A, 359A, 362A, 375, 375A, 376

Applicant:

DIEU BAO TRAM PHAM

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File number:

PEG 287 of 2005

Judgment of:

McInnis FM

Hearing date:

2 August 2006

Date of last submission:

24 January 2007

Delivered at:

Melbourne (and by video link to Perth)

Delivered on:

31 May 2007

REPRESENTATION

Counsel for the Applicant:

Mr R.E. Lindsay

Solicitors for the Applicant:

Wojtowicz Kelly Legal

Counsel for the First Respondent:

Mr J. Allanson

Solicitors for the First Respondent:

Australian Government Solicitor

ORDERS

The name of the First Respondent be changed to “Minister for Immigration and Citizenship”.
A writ of certiorari issue directed to the Second Respondent, quashing the decision of the Second Respondent dated 24 November 2005.
A writ of mandamus issue directed to the Second Respondent, requiring the Second Respondent to determine according to law the application for review.
Costs reserved.
Liberty to apply is granted to the parties in relation to the issue of costs within 7 days of the date of these orders.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PERTH

PEG 287 of 2005

DIEU BAO TRAM PHAM

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The Applicant seeks judicial review of a decision of the Migration Review Tribunal (the Tribunal) dated 24 November 2005.
In its decision the Tribunal affirmed a decision of a delegate of the First…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Pham v Minister for Immigration and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2007] FMCA 827
Decision Date: 31 May 2007

CaseChat Overview and Summary

The case of Pham v Minister for Immigration and Citizenship involves the Applicant, Pham, challenging a decision made by the Migration Review Tribunal (MRT) regarding her application for a visa. The Applicant asserts that the MRT failed to properly consider relevant evidence and made several errors in its assessment of her case, including misunderstanding the evidence requirements and failing to consider the impact of domestic violence on her relationship with her former spouse. The Federal Court of Australia was tasked with reviewing the MRT's decision and determining whether it was legally sound.

The primary legal issues in this case centred on whether the MRT correctly applied the relevant regulations and whether it properly assessed the evidence presented. Specifically, the Court examined whether the MRT adequately considered the statutory declarations and other evidence submitted by the Applicant and her husband. The Court also scrutinized whether the MRT correctly interpreted the regulations governing the evidence required for spousal relationships and whether it appropriately weighed the evidence of domestic violence in its decision-making process.

The Court found that the MRT had indeed made several errors in its handling of the case. Firstly, the Tribunal failed to consider two critical statutory declarations provided by the Applicant and her husband, which were relevant to establishing the genuineness of their relationship. Secondly, the MRT did not properly assess the evidence of domestic violence, which should have been a significant factor in determining the nature of the relationship. Additionally, the Tribunal misapplied the regulations concerning the qualifications of a "competent person" who could provide a statutory declaration about the Applicant's domestic situation. The Court concluded that these errors constituted jurisdictional mistakes, as the Tribunal did not adhere to the required legal framework.

Consequently, the Court quashed the decision of the MRT and mandated it to reassess the Applicant's case in accordance with the law. The Court also noted that the Tribunal did not provide the Applicant with an adequate opportunity to respond to certain accusations and withheld relevant documents, which further contributed to the procedural unfairness. The Court emphasised the importance of procedural fairness in administrative decision-making processes.

Orders

Orders of the court

The name of the First Respondent be changed to “Minister for Immigration and Citizenship”.

A writ of certiorari issue directed to the Second Respondent, quashing the decision of the Second Respondent dated 24 November 2005.

A writ of mandamus issue directed to the Second Respondent, requiring the Second Respondent to determine according to law the application for review.

Costs reserved.

Liberty to apply is granted to the parties in relation to the issue of costs within 7 days of the date of these orders.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Regulation 1.24 deals with the evidence required as follows:“Evidence (1) The evidence referred to in subparagraph 1.23 (1A) (b) (ii) is: (a)a statutory declaration under regulation 1.25 (which deals with statutory declarations by or on behalf of alleged victims) together with: (i) a statutory declaration under regulation 1.26 (which deals with statutory declarations by competent persons); and (ii) a copy of a record of an assault on the alleged victim allegedly committed by the alleged perpetrator, being a record kept by a police service of a State or Territory (other than a statement by the alleged victim); or (b)a statutory declaration under regulation 1.25, together with 2 statutory declarations under regulation 1.26. (2)A person must not submit, for the purposes of an application that relies on this Division, 2 statutory declarations by competent persons who both have a qualification specified in: (a)the same subparagraph of paragraph (a) of the definition of competent person ; or (b) subparagraph (b) (ii) of that definition.” Regulation 1.26 provides:“Statutory declaration by competent person A statutory declaration under this regulation: (a)must be made by a competent person; and (b)must set out the basis of the competent person's claim to be a competent person for the purposes of this Division; and (c)must state that, in the competent person's opinion, relevant domestic violence (within the meaning of paragraph 1.23 (2) (b)) has been suffered by a person; and (d)must name the person who, in the opinion of the competent person, has suffered that relevant domestic violence; and (e)name the person who, in the opinion of the competent person, committed that relevant domestic violence; and (f)must set out the evidence on which the competent person's opinion is based.” In the "Re-Amended Application" dated 31 July 2006, the Applicant relies upon the following grounds:“1.1(a) At the hearing on the 20th July 2005 before the Tribunal, counsel for the applicant told the Tribunal that it was proposed to forward statements from the applicant and her husband to the Tribunal.(b)By letter dated the 27th July 2005 the Applicant's solicitors wrote to the Tribunal and said that in a few days detailed statements from the Applicant and her present husband would be forwarded (Court Book 366) and subsequently the statements were faced to the Tribunal.(c)By letter dated the 13th September 2005 the Applicant's solicitor said the Tribunal had not acknowledged the receipt of the witness statements and forwarded further copies of the witness statements (Court Book 373). The Tribunal's case management system recorded receipt by the Tribunal on the 27th July 2005 of witness statements.(d)The Tribunal through its counsel subsequently instructed this Honourable Court that it did not have records of statements from the Applicant and her present husband being the statement referred to as CMC1 and CMC2 in the affidavit of Christina Marie Chang sworn on the 4th April 2006.1.2In failing to consider CMC1 and CMC2 the Tribunal ignored relevant material relevant to determination of central issues and concluded in the absence of this material that it was not satisfied that "the relationship between the parties could properly be regarded as spousal" within the meaning of Regulation 1.15A(3) of the Migration Regulations.1.3Alternatively, if the Tribunal is held not to have received the aforesaid statements then the Tribunal was procedurally unfair in not informing the Applicant's solicitors that these statements had not been received and thereby depriving the Applicant of an opportunity to forward statements CMC1 and CMC2 for consideration by the Tribunal before a decision was made.1.4In failing to have regard to CMC1 and CMC2 as referred to in 1.2 and/or in failing to inform the Applicant if it was believed the statements had not been received as referred to in 1.3 the Tribunal committed jurisdictional error.2.1In relation to the application of regulation 1.15A(3) to the Applicant, the Tribunal erred in holding that:(a)there is no objective evidence tendered in relation to financial aspects of the relationship (Reasons: para 54);(b)that there is no evidence to support the claim that the parties bought a car registered in the name of the visa Applicant (Reasons: para 55);(c)there is no evidence to support the claim that these parties provided financial assistance to the Applicant's mother as to the nature of the household (Reasons: para 55);(d)that there is no evidence to support the Applicant's agent's claim as to how duties were allocated within the household (Reasons: para 56); (e)that there was no evidence that the relationship provided either party with companionship or emotional support, exclusivity, and no evidence of the domestic arrangement (Reasons: para 66); and(f)that the matters referred to in paragraphs 53 to 61 of the Reasons were exhaustive of the relevant considerations.2.2The Tribunal ignored relevant evidence and/or considerations and in so doing committed jurisdictional error relating to the matters referred to in paragraph 2.1.3.1 The Tribunal held that:(a)it "must first determine whether the sponsor and the review Applicant were in a genuine spousal relationship within the meaning of Regulation 1.15A of the Regulations. Only where the Tribunal finds that such a relationship existed is it required to make a further finding in relation to claims of domestic violence" (Reasons: para 49);(b)having found that "the visa applicant does not satisfy the essential criteria (for a "spouse") within Regulation 1.15A ... the Tribunal need not consider the necessary criteria, or make a finding in relation to her claims of domestic violence" (Reasons: para 61).3.2The Tribunal erred in law in considering that the claims and evidence in support of domestic violence meant that the Tribunal need not consider whether the existence of domestic violence was a relevant factor in determining whether the Applicant had been in a genuine spousal relationship.3.3In ignoring the relevant considerations referred to in 3.2 and asking itself the wrong question the Tribunal committed jurisdictional error.4.1The Tribunal erred in finding:(a)that the statutory declaration of Ms De Garcia failed to meet the requirements of sub-Regulation 1.21(2) and 1.26(a) of the Regulations (Reasons: para 67);(b)that Ms De Garcia is not a "competent person" under Regulation 1.21 because:(i) she does not claim to be the manager or coordinator of a crisis or counselling service;(ii) she does not claim that the agency has a collective decision making structure and that she carries a decision making responsibility within the agency.4.2The Tribunal erred in regard to its findings in 4.1 in that Ms De Garcia constitutes a "competent person" under Regulation 1.21:(a)the statutory declaration describes Ms De Garcia as a welfare worker being an ethnic resource supervisor on the Women's Refuges Multi-Cultural Service and therefore a competent person within the meaning of Regulation 1.21(2)(a);(b)the statutory declaration describes Ms De Garcia as having decision making responsibilities on case management referrable to victims of domestic violence within a women's refuge and thus fulfils the requirements of Regulation 1.21(b)(a).4.3In ignoring material contained in the statutory declaration and further in misapplying the provisions the Tribunal committed jurisdictional error.4.4Further or alternatively to paragraphs 4.1, 4.2 and 4.3, if the Tribunal required any further clarification of the status of Ms De Garcia as a "competent person" the Tribunal ought, pursuant to s.359A of the Migration Act 1958, to have given to the Applicant particulars of any information in the Statutory Declaration that the Tribunal considered would be a reason, or part of a reason, for affirming the decision. The Applicant's solicitors, in a letter dated the 18th July 2005, expressly invited the Tribunal to point out whether the statutory declarations in its view met the prescribed requirements.4.5Further, failing to have regard to the "imperative duty" contained in s.359A of the Migration Act the Tribunal committed jurisdictional error.5.1(a) At the Tribunal hearing the Tribunal said it would be sending, through the Applicant's solicitors, a s.359A letter inviting comments, inter alia, upon accusations against Mr Ngo which would be taken into account by the Tribunal when making a decision (transcript pages 11 and 12). The Tribunal further said that it would be giving an opportunity to the Applicant to comment upon any material of an adverse nature (transcript page 13).(b)By letter dated the 27th July 2005 the Tribunal wrote to the Applicant's solicitors inviting comment on attached documents said to be relevant to whether the applicant's relationship with her former spouse was genuine and continuing. None of the attached documents referred to the accusations made against Mr Ngo.(c)The Tribunal said in its reasons that it would seek Mr Ngo's comments under s.359A of the Act on any adverse material (Reasons: para 30).5.2 (a) By letter dated 18th July 2005 the Applicant's solicitors sought copies of documents contained in the chronology prepared by a Tribunal case officer. Amongst the documents sought were documents 14, 15-17, 19, 36, 37, 74, 75 and 85.(b)The documents referred to in 5.2(a) above were withheld from production to the Applicant's solicitors under s.375A of the Migration Act.5.3The Tribunal were procedurally unfair, in having said that it would give Mr Ngo and the Applicant an opportunity to comment upon accusations made against Mr Ngo, as referred to in paragraph 5.1 above and in then failing to do so.5.4The Tribunal were further procedurally unfair in failing to inform the Applicant of the substance of the material contained in the documents referred to in paragraph 5.2 above so that there was an opportunity for the Applicant to comment upon this material.5.5In failing to extend procedural fairness to the Applicant as described in 5.3 and 5.4, the Tribunal committed jurisdictional error.”

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Regulation 1.15A sets out the test to be applied when determining whether one person is the "spouse" of another person, and relevantly provides:“Migration Regulation 1.15ASpouse (1)For the purposes of these Regulations, a person is the spouse of another person if the 2 persons are: 4.(a) in a married relationship, as described in subregulation (1A); or 5.(b) in a de facto relationship, as described in subregulation (2). (1A) Persons are in a married relationship if: 6.(a) they are married to each other under a marriage that is recognised as valid for the purposes of the Act; and 7.(b) the Minister is satisfied that: (i) they have a mutual commitment to a shared life as husband and wife to the exclusion of all others; and (ii) the relationship between them is genuine and continuing; and (iii) they: (A) live together; or (B)do not live separately and apart on a permanent basis. (2) Persons are in a de facto relationship if: … (3)In forming an opinion whether 2 persons are in a married relationship, or a de facto relationship, in relation to an application for: 8.(ad) a Partner (Migrant) (Class BC) visa; or 9.(ae) a Partner (Provisional) (Class UF) visa; or 10.(af) a Partner (Residence) (Class BS) visa; or 11.(ag) a Partner (Temporary) (Class UK) visa; the Minister must have regard to all of the circumstances of the relationship, including, in particular: 12.(a) the financial aspects of the relationship, including: (i) any joint ownership of real estate or other major assets; and (ii) any joint liabilities; and (iii) the extent of any pooling of financial resources, especially in relation to major financial commitments; and (iv) whether one party to the relationship owes any legal obligation in respect of the other; and (v) the basis of any sharing of day‑to‑day household expenses; 13.(b) the nature of the household, including: (i) any joint responsibility for care and support of children, if any; and (ii) the parties' living arrangements; and (iii) any sharing of responsibility for housework; (c) the social aspects of the relationship, including: (i) whether the persons represent themselves to other people as being married or in a de facto relationship with each other; (ii) the opinion of the persons' friends and acquaintances about the nature of the relationship; and (iii) any basis on which the persons plan and undertake joint social activities; 14.(d) the nature of the persons' commitment to each other, including: (i) the duration of the relationship; and (ii) the length of time during which the persons have lived together; and (iii) the degree of companionship and emotional support that the persons draw from each other; and (iv) whether the persons see the relationship as a long‑term one. (4)In forming an opinion whether 2 persons are in a married relationship, or a de facto relationship, in relation to an application for a visa of a class other than a class specified in paragraph (3) (ad), (ae), (af) or (ag), the Minister may have regard to any of the factors set out in subregulation (3). (5)If 2 persons have been living together at the same address for 6 months or longer, that fact is to be taken to be strong evidence that the relationship is genuine and continuing, but a relationship of shorter duration is not to be taken not to be genuine and continuing only for that reason.