Pham v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 411
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Pham v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 411
File number(s): SYG 2098 of 2018 Judgment of: JUDGE HUMPHREYS Date of judgment: 30 May 2022 Catchwords: MIGRATION – Administrative Appeals Tribunal – Partner Temporary (Class UK) (Subclass 820) – whether second respondent, the Administrative Appeals Tribunal (Tribunal) fell into jurisdictional error in refusing the application for a Partner (Temporary) (Class UK) visa – whether jurisdictional error is made out – no jurisdictional error made out – the application is dismissed. Legislation: Migration Act 1958 (Cth) s 359AA
Migration Regulations 1994 (Cth) cl 820.211 reg 1.15A
Cases cited: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184
He v Minister for Immigration and Border Protection [2017] FCAFC 206
Li v Minister for Immigration and Citizenship (2008) 102 ALD 354
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348
Division: Division 2 General Federal Law Number of paragraphs: 44 Date of last submission/s: 24 May 2022 Date of hearing: 24 May 2022 Place: Sydney Solicitor for the Applicant: Ms Anang Solicitor for the Respondents: Ms Lloyd ORDERS
SYG 2098 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS THI NAM PHAM
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:
30 MAY 2022
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The Applicant is to pay the First Respondents costs fixed in the amount of $5600.00.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order 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
JUDGE HUMPHREYS
INTRODUCTION
The applicant is a citizen of Vietnam. On 13 February 2015, the applicant applied for a Partner Temporary (Class UK) (Subclass 820) visa on the basis of her relationship with the sponsor, Mr Thanh Ha Deng.
On 21 June 2016, the delegate of the Minister for Immigration (“the delegate”) requested that the applicant provide further information in support of her Partner visa application. The applicant provided further documentary evidence including photographs, an extract from the Vietnamese household registrar, records of joint travel bookings and other documents, including bank account statements.
On 14 December 2016, the delegate refused the applicant’s Partner visa application on the basis, that the delegate was not satisfied that the applicant met the requirements of cl 820.211 of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”), as the delegate was not satisfied that the applicant was the spouse or de facto partner of the sponsor.
The applicant sought merits review at the Administrative Appeals Tribunal (“the Tribunal”). In a decision dated 25 June 2018, the Tribunal affirmed the delegate’s decision not to grant the applicant a Partner visa.
The applicant now seeks judicial review of the Tribunal’s decision.
THE ADMINISTRATIVE APPEALS TRIBUNAL DECISION.
After setting out the relevant law and background, the Tribunal at paragraph 12 of its decision, found that the applicant and her sponsor (“the parties”) were validly married on 14 January 2015.
The Tribunal then went onto consider whether the parties met the criteria set out in
reg 1.15A(3) of the Regulations, as to whether the other requirements for a spousal relationship were met.
In relation to the financial aspects of the relationship, the Tribunal was informed that the parties had no major assets or joint liabilities. Limited information was provided in relation to the pooling and sharing of financial resources or sharing of daily living expenses. Evidence was provided of joint bank account open on 8 April 2015 for the period 9 October 2017 to 2 March 2018. The statement showed a few transactions of $1000 deposits online from Piermont Sydney Migration, which were then withdrawn the same day at an ATM account in Piermont. The Tribunal concluded that there were no indicators of the joint account being used for joint expenditure, such the paying of shared bills and daily household expenses or daily today living expenses. The Tribunal was of the view that the applicant had little knowledge of the sponsor’s financial affairs. The Tribunal concluded that the financial aspects of the relationship did not support the existence of a genuine spousal relationship.
In terms of the nature of the household, the Tribunal noted that the applicant lived in Adelaide for a year from 2015 to 2016 after the parties were married. The applicant told the Tribunal that the sponsor visited her where she worked as a kitchen hand. The applicant stated that she returned to Sydney to live with the sponsor in 2017. Evidence was adduced of the lodgement of a rental bond for their address in Carramar dated 9 July 2017. The Tribunal accepted that the parties were listed as tenants and paid a bond for this address.
In terms of the living arrangements, the applicant told the Tribunal that she did everything around the household. The applicant told the Tribunal that the parties lived together at their Carramar address on their own. The sponsor however, told the Tribunal their address in Carramar is an Airbnb, and he lets people stay there charging them $30-$50 per night. The sponsor stated that one other person is living at the address at the moment but he will ask them to leave next week.
Given the inconsistency of the evidence of the applicant and the sponsor, the Tribunal put these inconsistencies to the applicant pursuant to s 359AA of the Migration Act 1958 (Cth) (“the Act”). The applicant sought additional time and responded in writing following the hearing. In the applicant’s response, she claimed that Vietnamese culture did not allow her to talk about the sponsor’s dealings with clients and friends and whether or not they paid him for staying there. Further, the applicant did not consider the sponsor’s friends or clients living with them because they only stayed for a short time, then left.
The Tribunal concluded that the applicant and the sponsor were not credible, based on the evidence that the sponsor had given regarding he was running an Airbnb and renting rooms out to people of all nationalities.
The Tribunal asked the parties if they had informed any government agencies that they were in a spousal relationship. The applicant responded that she was illiterate and left it up to her husband. The sponsor told the Tribunal that he had not informed any government agencies because he did not think it was necessary to do so. At paragraph 32 of its decision, the Tribunal concluded based on inconsistent evidence provided by the parties, that they had not established a joint household together. Further, the parties did not share the household duties or responsibilities for housework. There were no children of the relationship.
In terms of the social aspects of the relationship, the Tribunal noted that the parties provided various photographs taken of themselves with each other and with family and friends are different settings with their visa application. This included photographs of the wedding. The parties stated that they travelled to Vietnam to celebrate their wedding in March – April 2015 but that they left for Vietnam on separate dates and returned on the same flight. The sponsor told the Tribunal that the applicant had returned to Vietnam on her own account on one occasion, to visit family and friends but he was too busy to go with her. The parties provided Statutory Declarations from friends to attest to their relationship. The three statements are from one family that state that the applicant has been a long-term servant for the family in Australia. The Tribunal place some weight on the statements.
The applicant told the Tribunal that she has not met the sponsor’s family. The applicant said that the sponsor had met her family in Vietnam. The sponsor told the Tribunal that he only remembered sister number four, because she was friendly towards him at their wedding reception Vietnam. The sponsor stated that he did not have time to visit the applicant’s family in Vietnam because they all have their own families. The Tribunal concluded that the parties had little knowledge of each other’s family or personal history. At paragraph 38 of its decision, the Tribunal concluded that the parties do not represent themselves as being in a married relationship to family or the wider community or that they have undertaken planned regular joint social activities together. The Tribunal was not satisfied that the evidence supported the parties as being in a committed spousal relationship, or that they were regarded by others as such.
At paragraph 41 and onwards of the Tribunal decision, it considered the nature of the parties commitment to each other including the duration of the relationship, the length of time the parties had lived together, the degree of companionship and emotional support they provided each other and whether the parties view the relationship as a long-term one.
The parties provided near identical statements attesting to their relationship. The parties stated that they were going to purchase their own home and start a family as soon as possible. The applicant said that she had never been married before, and, it might be a bit late to start a family because she was 51 years of age. The applicant said that she had no other plans for the future. The parties provided evidence that the joint account as at March 2018 showed a current balance of $2.12. The parties provided no convincing evidence of how they propose to finance the purchase their own home or outlined any future financial plans or commitments
At paragraph 44 of its decision, the Tribunal queried the emotional support and companionship that the parties draw from each other. The applicant stated that when the sponsor comes home, he sometimes helps with the cooking and washes the dishes. The sponsor stated that he brings happiness to the applicant because she has no family in Australia. The Tribunal concluded that the parties draw little emotional support and companionship from each other.
Whilst accepting that the parties had known each other for a period of time exceeding 3 ½ years, based on the evidence provided by the parties of the hearing, the Tribunal was not satisfied that the evidence was indicative of the parties being in a genuine spousal relationship or that they view their relationship was a long-term one. Accordingly, it affirmed the delegate’s decision not to grant the applicant a temporary spousal visa.
GROUNDS OF JUDICIAL REVIEW
The grounds of judicial review relied upon are set out in the Initiating Application filed with the Court on 30 July 2018. In written submissions filed with the Court, the applicant did not press grounds 1(a), 1(c) and 2 but continued to rely upon Ground 1(b) which is as follows:
Ground One
The second respondent, the Administrative Appeals Tribunal (Tribunal) fell into jurisdictional error in refusing the application for a Partner (Temporary) (Class UK) visa.
Particulars
a. Not pressed
b. The Tribunal failed to take into account all relevant matters required by Regulation 1.15A (2) and (3) of the Migration Regulations.
THE APPLICANT’S SUBMISSIONS
The applicant filed lengthy written submissions. In essence, it was complained that the Tribunal should have made specific findings in relation to three items of evidence, being; first, joint bank account statements for the period 8 April 2015 to 8 October 2015 and 12 March 2016 to 10 July 2016. Second, handwritten rental receipts for the premises they occupied and third, a Rental Bond Board receipt in joint names for their rental premise.
This failure constituted jurisdictional error as found in He v Minister for Immigration and Border Protection [2017] FCAFC 206 at [50] (“He”).
It was conceded during oral submissions, that the rental Bond Board receipt, although in joint names, did not provide evidence as to the source of the funds in relation to that bond. It was submitted that a specific finding made in relation to the rental Bond Board receipt as to whether it was not supportive of pooled financial resources of the parties.
It was further submitted that there was a failure to make a specific finding as to whether or not the bank account statements for earlier periods of time are either supportive, or not, of pooled financial resources of the parties. It was submitted such a finding is necessary, and in its absence, jurisdictional error existed. The same error applied to the Rental Bond Board receipt.
THE FIRST RESPONDENT’S SUBMISSIONS.
It was submitted on behalf of the first respondent that, the Tribunal decision does not demonstrate that it accepted or rejected certain bank statements from the applicant’s joint bank account during the periods of 8 April 2015 to 8 October 2015 and 12 March 2016 to 10 July 2016 (joint bank statements), as well as handwritten rental receipts for the period 8 June 2017 to 24 February 2018. The applicant contends that the Tribunal erred in proceeding to find the overall balance of the circumstances did not support a finding that the applicant was the sponsor spouse for the purposes of reg 1.15A of the Regulations, and in accordance with He at [23] – [30].
It was submitted that the Tribunal gave proper, genuine and realistic consideration to the prescribed matters and made findings in relation to each of those matters.
Contrary to the applicant’s submission, the Tribunal was aware that the applicant’s joint bank account had been open since 2015 and it expressly stated so. The Tribunal had regard to the information provided by the applicant to the Department at paragraph 15 of its decision. This included the joint bank account statements. The Tribunal referred to the latest, most relevant, form of evidence regarding the applicant’s joint bank account, being the joint bank account statement from 9 October 2017 until 2 March 2018.
The weight to be given to evidence as a matter for the Tribunal as part of its fact-finding function: (see; NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10). Although the Tribunal did not refer to the joint bank statements in its decision, it cannot be concluded that the Tribunal failed to consider them simply because it did not mention them in the decision record: (see; Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184 (“Applicant WAEE”) at [46] – [47]).
It was submitted that the requirement in He to consider the circumstances in
reg 1.15A of the Regulations, does not mean that the Tribunal must make findings in relation to each and every piece of evidence provided by the applicant. Rather, it must make findings upon each of the prescribed matters numbered with Roman numerals in the Regulation: (see; He at [77], [83]). The Tribunal did this, in relation to the financial aspects of the relationship.
In terms of the submission by the applicant that they are assisted by Li v Minister for Immigration and Citizenship (2008) 102 ALD 354 (“Li”), the Tribunal’s error in that case, was its failure to make a finding in relation to the applicant’s claim that she and her partner were attempting to have a child which was relevant to the requirement to have regard to “all the circumstances of the relationship”. In the current case, the Tribunal has not failed to have regard to any of the considerations prescribed in reg 1.15A of the Regulations.
In relation to the joint bank statements it is not clear what difference they could have made. On inspection of them, the first respondent submitted that there is nothing to indicate that there was information in the statements that is inconsistent with the Tribunal’s finding that there were no indicators of the joint account being used the joint expenditure. In relation handwritten receipts for rental payments for the period 18 June 2017 to 24 February 2018, the Tribunal expressly considered these at paragraph 18 of its decision. The Tribunal found that the evidence was not credible in relation to the living arrangements at paragraph 31 of its decision. These were findings that were reasonably open to it.
CONSIDERATION.
It is appropriate to make a number of general observations before turning to the particular areas of complaint by the applicant. It is well established that the Tribunal is not required to uncritically accept any and all claims made by an applicant: (see; Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at [451]). Nor does the Tribunal have to possess rebutting evidence, before holding that a particular assertion is not made out: (see; Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at [348]).
In Applicant WAEE, the following was said at [47]:
The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality…
The sole complaint by the applicant is a failure to take into account all relevant matters required by reg 1.15A(2) and (3) of the Regulations.
The Tribunal conducted an orthodox consideration of the evidence before it. It specifically turned its attention to each of the matters set out in reg 1.15 (3) (a)-(d) of the Regulations, by dealing with each heading in turn and discussing the particular evidence before it and then making a conclusion as to whether or not is was supportive of their being a spousal relationship.
During the course of oral submissions, the legal representative for the applicant confirmed that the only complaint in relation of the consideration of the matter related to the financial aspects of the relationship. No dispute was made in relation to the other aspects of the relationship, being the nature of the household, the social aspects and the commitment of the parties to each other.
It was submitted that there were only a small number of documents where it was alleged that the Tribunal did not consider them, and should have. These documents were firstly a joint bank account statement during the period of 8 April 2015 to 8 October 2015 which showed a number of debit card purchases, for example, at Chemist Warehouse. It was submitted that this was evidence of a pooling of financial resources. The next item it was submitted that was not considered, related to hand written receipts in relation to the rent of the premises they occupied. The third document, related to a Rental Bond Board receipt that was in joint names.
It was submitted that the failure to refer to these documents and make a specific finding as to whether the Tribunal either accepted the documents as evidence of the parties financial relationship, or rejected them or it was unable to make any determination as to the evidentiary value, meant that the Tribunal fell into jurisdictional error as described in Li at [24], per Jessup J. That case concerned a failure of the Tribunal to make any finding as to the intention of the applicant and her sponsor to have a baby.
The legal representative for the first respondent pointed out that in relation to hand written receipts for rent for the period 18 June 2017 to 24 February 2018, this was specifically referred to in paragraph 18 of the decision record. Although not referred to under the heading of “financial aspects”, the Tribunal also specifically referred to the fact that the parties were listed as tenants and posted a bond in both names for the residential address. The Court does not accept in the circumstances that these items of evidence were overlooked. They were appropriately considered by the Tribunal in coming to the conclusions that it did, at paragraph 48 of its decision, that the parties did not pool or share the financial resources, or share the daily expenses or have a planned financial future together. No error is apparent from the manner in which the Tribunal dealt with these items of evidence.
That leaves the issue in relation to the bank account statements from 2015. The Tribunal at paragraph 8 of the decision record noted that it had before it, a copy of the Department of Immigration file which included those documents. The legal representative for the first respondent noted that the Tribunal had focused its attention in its decision record on the Westpac joint bank account was opened on 8 April 2015, for the period 9 October 2017 to 2 March 2018. Given that the hearing took place in March 2018, these would have been the most recent bank account statements available to the parties.
It was submitted that it was appropriate for the Tribunal to do so, as it was the most recent and relevant evidence available, regarding the pooled nature of the parties’ resources. The Tribunal noted that there were a few $1000 deposits online from Pyrmont Sydney Migration, which were then withdrawn the same day from an ATM by the sponsor. In the Court’s view this evidence was clearly supportive of the conclusion that the parties did not have pooled financial resources.
In the Court’s view, the reference to the account being opened on 8 April 2015 at paragraph 18 of the decision record, clearly indicates that the Tribunal was aware that the bank account had been in operation for some time. This is inferential that the Tribunal considered the entirety of the statements as part of its consideration of the financial aspects of the relationship. The failure to reference that there may have been some debit card withdrawals in 2015, is simply not a matter that required specific reference to, or a finding, as the Tribunal made a finding of greater generality as the parties financial aspects, based on the entirety of the evidence. There was nothing legally unreasonable, illogical, or irrational in that finding, nor is it tainted by any lack of procedural fairness.
Even if the Court is wrong in its finding that there was no jurisdictional error in relation to the matters raised by the applicant, the Court is of the view that any error was not material, in that, it would not have made a difference to the overall outcome, based on the findings in relation to the undisputed considerations set out in the decision record.
CONCLUSION
The sole ground of judicial review has no merit. Accordingly, the application must be dismissed.
I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys. Associate: Nazrana Saheb
Dated: 30 May 2022
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