Pham v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FCCA 1947

FEDERAL CIRCUIT COURT OF AUSTRALIA

Pham v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1947

File number(s):

SYG 385 of 2017

Judgment of:

JUDGE HUMPHREYS

Date of judgment:

24 August 2021

Catchwords:

MIGRATION – Administrative Appeals Tribunal – Partner (Temporary) (Class UK) (Subclass 820) visa – whether the Second Respondent (the Tribunal) failed to consider relevant evidence – whether The Tribunal failed to comply with s 360(1) and s 359(2) of the Migration Act 1958 (Cth) – whether jurisdictional error is made out – no jurisdictional error is made out – the application is dismissed.

Legislation:

Migration Act 1958 (Cth) s 359, 360

Migration Regulations 1994 (Cth) Sch 2, 3, cl 3001, 820.211,

Cases cited:

Applicant WAEE v Minister for Immigration (2003) 75 ALD 630

Minister for Immigration and Border Protection v SZMTA [2019] 264 CLR 421

Minister for Immigration and Border Protection v SZSRS (2014) 309 ALR 67

MZYPZ v Minister for Immigration and Citizenship [2012] FCA 478

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairsand Anor (2006) 228 CLR 152

Number of paragraphs:

42

Date of last submission/s:

12 August 2021

Date of hearing:

12 August 2021

Place:

Parramatta

Counsel for the Applicants:

Ms Baw

Counsel for the Respondents:

Mr Johnson

ORDERS

SYG 385 of 2017

BETWEEN:

THI MAI PHAM

First Applicant

VIET HOANG PHAM

Second Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE HUMPHREYS
DATE OF ORDER:	24 AUGUST 2021

THE COURT ORDERS THAT:

1.The name of the First Respondent be changed to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.

2.The application is dismissed.

3.The First Applicants is to pay the First Respondent’s costs, fixed in the amount of $7,100.00.

REASONS FOR JUDGMENT

JUDGE HUMPHREYS

INTRODUCTION

1. The first applicant is a Vietnamese citizen. The second applicant is the first applicant’s 11 year old son born in Australia. The second applicant is also a Vietnamese citizen.

2. The first applicant has a second child, who is currently 6 years old. The first applicant’s second child is an Australian citizen. The first applicant’s second child’s father, is the sponsor for the Partner visa the subject of this judicial review.

3. The first applicant arrived in Australia initially as the holder of a Student visa in May 2008.That visa ceased on 15 March 2012. The first applicant remained unlawfully in Australia from 16 March 2012 until 8 May 2015, when she lodged an application for a Partner (Temporary) (Class UK) (Subclass 820) visa. 

4. The sponsor for the Partner visa is Quoc Huy Tran, who is an Australian Permanent Resident. The first applicant and Mr Tran first met in August 2012. The first applicant and Mr Tran were legally married in September 2014 at Fairfield, NSW. The first applicant’s second son was born in June 2015.

5. On 4 February 2017, a delegate of the Minister for Immigration (“the delegate”) refused to grant the first applicant her visa on the basis that the first applicant did not meet cl 820.211 of the Migration Regulations 1994 (Cth) (“the Regulations”) as she did not meet the criteria contained in cl 3001 of Schedule 3 to the Regulations in that she did not lodge her visa application within 28 days of her last substantive visa expiring. The delegate was also not satisfied that there were compelling circumstances to waive the criterion.

6. The first applicant sought merits review at the Administrative Appeals Tribunal (“the Tribunal”). In a decision dated 6 January 2017, the Tribunal affirmed the delegate’s decision not to grant the applicants’ their visas.

7. The applicants’ now seek judicial review of the Tribunal decision.

   THE ADMINISTRATIVE APPEALS TRIBUNAL DECISION

8. After setting out the relevant background, the Tribunal noted that the sponsor is an Australian permanent resident having arrived in Australia in 1997.  The sponsor previously sponsored a different spouse to Australia in 2009, however that marriage ended in divorce in October 2013.  The Tribunal notes that the first applicant claims that she is unaware of who the father of her eldest child is and could not go back to Vietnam because of the stigma attached to this.  The first applicant claimed that she became an unlawful because she could not go home and did not know what to do. The first applicant further claimed that she did not lodge her spouse application until she was well advanced into her second pregnancy because she was afraid of being deported.  The first applicant claimed that her friends convinced her and her current husband to lodge the spouse of visa application in order to resolve her status.

9. At paragraph 11 of its decision, the Tribunal noted that both parties claimed that their marriage and the first applicant had been accepted by their respective families after the sponsor travelled to Vietnam to meet with relevant family and take them gifts in July 2014.  The parties claimed the first applicant would be severely disadvantaged if she was required to depart Australia because she would be unable to support her two children on her own and they would miss the sponsor.  The first applicant further claims that the children would suffer without the help and support of the sponsor.

10. At paragraph 14 of its decision, the Tribunal noted that the delegate sought a deoxyribonucleic acid (“DNA”) report from the parties to confirm that Danny Tran is the biological son of the sponsor, however that request was refused, as the parties claimed they could meet the cost of the test because the sponsor was in Vietnam at the time.

11. At paragraph 17 and 18 of its decision, the Tribunal noted that it is not in dispute that the first applicant in the present case did not have a substantive visa at the time of her application for a Spouse visa. Accordingly, the issue in the present case was whether the first applicant satisfied the Schedule 3 of the Regulations criteria, unless there were compelling reasons for not applying those criteria.  As the first applicant did not lodge her visa application within 28 days of her last substantive visa expiring, the relevant issue was whether or not there were compelling reasons for the first applicant to stay in Australia and not be required to go offshore, in order to make a visa application.

12. At paragraph 22 of its decision, the Tribunal noted that the expression “compelling reasons” is not defined.  However, the reasons should be sufficiently convincing to move the decision-maker to exercise its discretion to waive the requisite criteria in the circumstances and must be sufficiently powerful to lead a decision-maker to make positive findings in favour of waiving the required criteria: (see; MZYPZ v Minister for Immigration and Citizenship [2012] FCA 478 at [10]).

13. At paragraph 23 and onwards of its decision, the Tribunal set out the evidence given by the applicant at the hearing.  The Tribunal noted that the applicant claimed that she had been supported while in Australia through money sent to her by her parents.  At paragraph 26 of the Tribunal decision, in response to a question as to why the first applicant became an unlawful non-resident in Australia, she reiterated that her parents would have been ashamed of her if she went back pregnant or with the child.  It was put to the first applicant that if her parents had been financially supporting her, they were not ashamed of her.  The first applicant claimed that if she went back to Vietnam with the child who had no father, she would be rejected.  The first applicant claimed that she could not face a friends.

14. At paragraph 30 of the Tribunal decision, the first applicant is noted to have asked the Tribunal to consider the compelling reasons as regard to the situation of her family.  The first applicant claimed that they now needed to support both sides of the family and in addition, her eldest son is very slow.  The first applicant claimed that her eldest son had a learning disability and had been diagnosed with autism.  The Tribunal noted that this claim had not been made previously either to it or to the Department of Immigration (“the Department”).

15. At paragraph 31 of its decision, the Tribunal asked if there was any reason why the whole family could not go to Vietnam and wait there until the first applicant’s visa was processed.  The first applicant claimed the medical and health conditions in Vietnam were very bad and that going back to Vietnam without a husband, would be culturally unacceptable.  The first applicant said that life in Vietnam was very difficult and things were not stable.  The first applicant claimed that her eldest child was attending a special class and would not be able to do so in Vietnam.  The first applicant also did not want the children to be separated from their father.

16. The sponsor also gave evidence to the Tribunal.  The sponsor was asked if he provided any financial support to his first born son.  The sponsor claimed that he didn’t have to, when he was unemployed.  The sponsor claimed that he didn’t know about what happens next and that his ex-wife had not told him.  The Tribunal asked the sponsor why the application for a spouse visa for the first applicant was not lodged until eight months after their marriage.  The sponsor claimed that they had financial difficulties and didn’t have the money for the lodgement fee.

17. When asked about compelling reasons, the Tribunal put to the sponsor that he had just taken the child away from his mother to live in Vietnam for six months.  The sponsor said that that the first applicant could not look after two children because she was stressed.  The sponsor also claimed that he wanted to take the child to see his grandmother.  The Tribunal asked the sponsor of there is any reason why the whole family could not go back to Vietnam and wait for the visa to be processed.  The sponsor stated that they wanted to stay in Australia, have a stable life and for the children to continue their education.

18. At paragraph 42 of its decision, the Tribunal found that the first applicant had been evasive, and that her evidence was implausible and lacking in credibility.  The Tribunal did not accept that the first applicant’s distress over her pregnancy was the reason why she did not engage with the Department and inform them of the change of circumstances.  Even if that were true, it did not justify the first applicant’s extended period of unlawfulness.  The Tribunal was not satisfied that the first applicant did not wilfully and knowingly remain unlawful for any other reason except her desire to remain in Australia.

19. At paragraph 47 and onwards of its decision, the Tribunal considered whether not there were compelling reasons.  The Tribunal noted that the first applicant grew up in Vietnam, knows the language and culture and has a mother living there that was clearly prepared to support the first applicant and has done so over many years.  There was no evidence that the first applicant would not be able to get a job if she returned to Vietnam.  The Tribunal concluded that it was unclear as to how or why the first applicant would be discriminated against if she returned with her children and not their father.  The Tribunal noted that the marriage and the sponsor had been accepted by their respective families.  The Tribunal noted that the sponsor has recently spent eight years working in Vietnam and there was no reason why he would not be able to find gainful employment if he returned to spend time with the first applicant while their visa application was processed. As the sponsor had only been working for three months at his current job, the Tribunal found it difficult to imagine that his employer would be disadvantaged in any way if he was to depart.

20. The Tribunal noted the claim that the first applicant’s eldest son has autism and requires special schooling, however, no evidence was provided to support that claim.  Even if it was true, there was no evidence to suggest that the child would be adversely affected if he went back to Vietnam for the time it would take to process the Spouse visa.  The Tribunal also noted that the sponsor remained in Vietnam with his son for six months before returning to Australia in April 2016.  The child remained in Vietnam for an additional two to three months with the first applicant’s mother before coming back to Australia in June or July 2016.  The Tribunal was not satisfied that the younger son, who is an Australian citizen, would be adversely affected by requiring the first applicant to lodge her application offshore.

21. The Tribunal noted the claim that the first applicant would be financially unable to manage, if the she was required to go offshore. While the Tribunal made no finding as to whether not there was a genuine spousal relationship between the parties, the existence of such a relationship in the Tribunal’s view, was not by itself a compelling reason not to apply the Schedule 3 of the Regulations criteria.  The Tribunal noted that the policy guidance provided by the Department focuses on circumstances that resulted in the first applicant becoming unlawful, and emphasises the consideration of whether the circumstances were beyond the first applicant’s control.  While the Tribunal was obliged to consider all circumstances of the case, the Tribunal was not satisfied that the first applicant did not have ample and multiple opportunities to regularise her immigration status. 

22. The totality of the first applicant’s circumstances, including her evasiveness, failure to regularise her immigration status and deliberate manipulation of circumstances in an attempt to give rise to compelling circumstances, in the Tribunal’s mind, was driven by a strong desire to remain in Australia and not a strong desire to be married to the applicant. Accordingly, the Tribunal found that there were not compelling reasons to waive the Schedule 3 of the Regulations criteria, and affirmed the delegate’s decision not to grant the first applicant’s Partner (Temporary) (Class UK) visa.

    GROUNDS OF JUDICIAL REVIEW

23. The Grounds of Judicial review now relied upon, are set out in an Amended Initiating Application filed with the Court on 24 June 2021. They are as follows:

    Ground One

    The Second Respondent (the Tribunal) failed to consider relevant evidence.

    Particulars

    a. The Tribunal, at [42]-[46] of its decision found that among other things, the First Applicant’s evidence about why she could not return to Vietnam after the cessation of her Student visa was implausible and lacking in credibility.

    b. In making the findings at [42]-[46] the Tribunal did not consider the contents of the statutory declaration made by Minh Tuan Dang, which were consistent with and corroborative of the First Applicant’s claims: CB 334-335.

    c. The matters referred to above at (a)-(b) were relevant to the determination of whether there were compelling reasons to waive the Schedule 3 criteria for the purposes of meeting the criterion in cl.820.211(2)(d)(ii) of Schedule 2 to the Migration Regulations 1994 (Cth). Consequently the Tribunal’s decision was affected by jurisdictional error.

    Ground Two

    The Tribunal failed to comply with s.360(1) and s.359(2) of the Migration Act 1958 (Cth).

    Particulars

    a. The Tribunal, at [57] of its decision found that among other things, neither the Applicants nor the sponsor sought a fee reduction from the Department or the Tribunal when lodging their applications.

    b. At [58] the Tribunal went on to state that it was not satisfied that the Applicants would be financially disadvantaged if they were required to go offshore to lodge a new visa application.

    c. The Tribunal did not raise with either the First Applicant or the sponsor, the issue of why they did or did not seek a fee reduction in respect of their visa or review applications, at the hearing held by the Tribunal on 6 January 2017.

    d. No other hearing was held by the Tribunal. As the issue of why the First Applicant and the sponsor did or did not seek a fee reduction in respect of their visa or review applications was an issue that was dispositive to the outcome of the review, the Tribunal failed to comply with s.360(1) of the Act.

    THE APPLICANTS’ SUBMISSIONS

24. Counsel for the first applicant conceded that the first applicant did not apply for the visa within 28 days of her last substantive visa expiring and thus, did not meet Criterion 3001 in Schedule 3 of the Regulations. Consequently, the first applicant did not satisfy cl 801.211(2)(d)(ii) of Schedule 2 to the Regulations. The issue then became whether there were compelling reasons to waive the Schedule 3 to the Regulations, requirements.

25. It was submitted in relation to ground one that, the Tribunal failed to consider the evidence of the corroborating witness Minh Tuan Dong contained in a Statutory Declaration that the first applicant was unable to return to Vietnam after her first son was born, due to the shame it would bring on her. Further, that the applicant and Mr Tran did not lodge the Spouse visa application due to financial difficulties and due to their lack of knowledge of migration law requirements.

26. It was submitted that the Tribunal failed to make any reference to that evidence. In the circumstances of this case, it would be expected that some reference would have been made to it, even to note that it was being given little weight, or that aspects of it were being rejected.

27. In these circumstances, this amounted to a failure to engage in an active intellectual engagement with the first applicant’s claims. The evidence of Ms Dong was material to the outcome, as the consideration of it, could have resulted in a different outcome.

28. In relation to Ground two, objection is taken that the Tribunal did not put to the applicants’ that they claimed financial hardship as a reason why they could not return to Vietnam for the purpose of making an offshore application for a Spouse visa, yet did not seek a fee reduction in relation to the application for review to the Tribunal. As this was a matter that the Tribunal relied upon as part of the reasons for its decision, it should have been put to the first applicant as a matter of procedural fairness and in compliance with s 360(1) of the Migration Act 1958 (Cth) (“the Act”).

    THE FIRST RESPONDENT’S SUBMISSIONS

29. Ground one alleges that the Tribunal failed to consider relevant evidence, namely a Statutory Declaration made by Minh Tuan Dang, dated 30 December 2016. It is alleged that the Tribunal at paragraphs 42 to 46 of its decision found that the first applicant’s evidence about why she could not return to Vietnam after the cessation of a Student visa was implausible and lacking in credibility, but in making these findings, failed to consider the Statutory Declaration.

30. Whilst the Tribunal did not expressly refer to the Statutory Declaration, it is well-established that it is unnecessary for the Tribunal to refer to every piece of evidence and every contention made by the first applicant in its written reasons: (see; Applicant WAEE v Minister for Immigration (2003) 75 ALD 630 (“Applicant WAEE”) at [46]). The issue is whether the particular matter or evidence that has been omitted from the Tribunals reasons, can sensibly be understood as a matter considered, but not mentioned because it was not material: (see; Minister for Immigration and Border Protection v SZSRS (2014) 309 ALR 67 at [34]).

31. It was submitted that the first applicant has not demonstrated that the Statutory Declaration was overlooked.  In any event, the Tribunal’s failure to expressly refer to the Statutory Declaration was not of sufficient importance to the applicants’ case that such a failure to consider it, amounted to a jurisdictional error.  That is, even had the Statutory Declaration been considered, could it have realistically resulted in a different decision: (see; Minister for Immigration and Border Protection v SZMTA [2019] 264 CLR 421 at [45]).

1. The Tribunal had significant concerns risk concerning the credibility of the first applicant’s claim that she was unable to return to Vietnam. The Tribunal did not accept that the first applicant was unable to return to Vietnam with her first born son because of the shame it would bring upon her and did not accept that her distress over her pregnancy was the reason why she did not engage with the Department and inform them of a change of circumstances.  Critically, the Tribunal found, even if it were to accept these claims, it did not justify the first applicant’s extended period of unlawfulness and was not satisfied that the first applicant did not wilfully and knowingly remain unlawful in Australia for any reason except her desire to remain in Australia: (see; paragraph 43 of the Tribunal decision).

2. The Tribunal’s adverse credit findings went well beyond any lack of corroboration from a third party source.  The Tribunal was not only concerned that the claim lacked creditability, but it also found that, even if the claim were true, it did not amount to a compelling reason for the applicants’ to remain in Australia unlawfully.  The Tribunal had concerns that the first applicant had deliberately manipulated the circumstances in an attempt to give rise to compelling reasons for her to stay in Australia and found that there were no reasons beyond the first applicant’s control, for her lengthy unlawful stay in Australia.  The Statutory Declaration could not have realistically overcome these comprehensive adverse credibility grounds.

3. Ground two alleges that the Tribunal breached s 360(1) of the Act in respect of its findings that neither the applicants’ nor the sponsor sought a fee reduction from the Department when lodging each respective application.

4. It was submitted that no breach of s 360(1) of the Act is established and that the Tribunal’s finding at paragraph 47 of its decision, did not include reference to a dispositive “issue” of which the Tribunal was required to put the first applicant on notice in compliance of s 360(1) of the Act. The issue for the purposes of s 360(1) of the Act before the Tribunal, was whether there were compelling reasons to waive the Schedule 3 to the Regulations criteria.  This was the same live issue that was before the delegate.  

   CONSIDERATION

5. In addition to the proposition referred to by the first respondent,  Applicant WAEE at [47] states that it may be unnecessary for the Tribunal to refer to make a finding on a particular matter as it is subsumed by findings of greater generality. Further, reasons of a Tribunal are not to be scrutinised with “an eye keenly attuned to error”.

6. In this case, the Tribunal clearly engaged with the issue of the reasons why the applicant stayed unlawfully in Australia. The Tribunal devoted paragraphs 43 to 46 of its decision to discussing the issue of why the first applicant remained unlawfully in Australia. The Tribunal clearly rejected the first applicant’s claims by stating “the Tribunal does not accept the applicant was unable to return to Vietnam with her first born son”. The Tribunal went on to state that even if it accepted the first applicant’s claims of shame,  “the Tribunal was not satisfied that the applicant did not wilfully and knowingly remain unlawful for any other reason except for her desire to remain in Australia”.

7. The Court is satisfied, as submitted by the first respondent, that these adverse credit findings go well beyond any corroboration from a third party. The findings amount to a complete rejection of the first applicant’s claims. The Court is satisfied that these findings were open to the Tribunal on the evidence before it and for the reasons it gave. It is to be remembered that it was for the applicant to establish compelling circumstances. The Court does not consider that the failure to refer to the evidence of Ms Dong, was material to the outcome as the Tribunal clearly rejected the entire basis of the first applicant’s claims as to why she did not return following her visa ceasing. No jurisdictional error is made out.

8. In relation to ground two, this relates to the issue of the failure to seek a fee reduction in circumstances where the first applicant claimed financial hardship if the first applicant was required to return to Vietnam and make a Spouse visa application offshore. The Tribunal went through the first applicant’s evidence in some detail. It is not disputed that the Tribunal did not specifically put the failure to seek a fee reduction to the applicants’, either during the hearings, or after.

9. There is no requirement for the Tribunal to give “a running commentary about what it thinks about the evidence given”: (see; SZBEL v Minister for Immigration and Multicultural and Indigenous Affairsand Anor (2006) 228 CLR 152 at [48]). The Court is satisfied that there was ample other evidence for the Tribunal to reject the submission that the first applicant would be financially disadvantaged by being required to return to Vietnam. The issue of the fee reduction was not dispositive of the consideration, rather, it was an additional observation, noting at paragraph 57 of the Tribunal decision that the applicants’ had in the past managed to find the financial resources from their family members to meet their obligations.

10. Even if the Court is wrong in the conclusion that there was no requirement to put this matter to the applicants’ for comment, the Court is not satisfied the error, if there be one, was material to the outcome. That is, it did not deprive the applicants’ of the chance of a different outcome. Ground two reveals no jurisdictional error.

    CONCLUSION

11. Accordingly, the application is dismissed.

I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys.

Associate:

Dated:       24 August 2021