Pham v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2023] FCA 394
•3 May 2023
FEDERAL COURT OF AUSTRALIA
Pham v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 394
Appeal from: Pham v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 487 File number(s): QUD 195 of 2022 Judgment of: SARAH C DERRINGTON J Date of judgment: 3 May 2023 Catchwords: MIGRATION – appeal from decision of Federal Circuit and Family Court of Australia dismissing application for review of decision of Administrative Appeals Tribunal to affirm decision of delegate of the Minister not to grant partner temporary UK visa – whether Tribunal complied with s 359AA of the Migration Act – whether failure to comply was material – whether failure to comply with s 359A in relation to spouse’s evidence – whether leave should be granted to raise appeal ground not raised before primary judge Legislation: Migration Act 1958 (Cth) ss 5F(2), 65, 359A, 359AA
Migration Regulations 1994 (Cth) reg 1.15A, Schedule 2 cl 820.211(2)(a)
Cases cited: Malhi v Minister for Immigration (2017) FCCA 119
Nathanson v Minister for Home Affairs [2022] HCA 26; 96 ALJR 737
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; 127 CLR 297
VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; 238 FCR 588
Division: General Division Registry: Queensland National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 26 Date of hearing: 20 April 2023 Counsel for the Appellant Mr R Chia Solicitor for the Appellant Williams & Williams Lawyers Counsel for the Respondent Ms C De Marco Solicitor for the Respondent SparkeHelmore ORDERS
QUD 195 of 2022 BETWEEN: DONG PHAM
Appellant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
SARAH C DERRINGTON J
DATE OF ORDER:
3 MAY 2023
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first respondent’s costs to be assessed if not agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
SARAH C DERRINGTON J:
In March 2015, Mr Pham, a citizen of Vietnam, arrived in Australia for the first time under a Student (Class TU) (subclass 573) visa. In February 2016, Mr Pham married an Australian citizen, Ms Vo. There is no dispute the marriage is valid.
Ms Vo sponsored Mr Pham’s application of 19 April 2016 for a Partner (Temporary) (Class UK) (subclass 820) visa (temporary partner visa) and a Partner (Residence) (Class BS) (subclass 801) pursuant to s 65 of the Migration Act 1985 (Cth). Section 65 of the Migration Act vests the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs with a power and duty to grant a visa if, amongst other matters, the Minister is satisfied the criteria prescribed in the Migration Act and the Migration Regulations 1994 (Cth) have been met and, if not, to refuse to do so: s 65(1)(a)(ii). The criteria relevant to the grant of a temporary partner visa are prescribed in cl 820.211(2)(a) of Schedule 2 to the Regulations.
One condition for the grant of the visa for which Mr Pham applied is that, at the time of the application, the visa applicant be the “spouse” of the sponsor. Section 5F(2) of the Migration Act identifies when, for the purposes of the statutory regime, “a person is the spouse of another person”. So far as is presently relevant, that provides that the Minister be satisfied the persons concerned “have a mutual commitment to a shared life as husband and wife to the exclusion of all others”, that “the relationship between them is genuine and continuing”. Regulation 1.15A of the Regulations makes provision in relation to the determination of whether one or more of the conditions in s 5F(2)(a)-(d) exist.
On 24 April 2018, a delegate for the Minister refused to grant the temporary partner visa, finding that Mr Pham did not satisfy the visa criterion prescribed in cl 820.211(2)(a) of Schedule 2 to the Regulations.
On 7 May 2021, the Minister’s decision was affirmed by the Administrative Appeals Tribunal. On 12 May 2022, the Federal Circuit and Family Court of Australia dismissed Mr Pham’s application for judicial review of the Tribunal’s decision. The application for judicial review was based on the sole ground that the Tribunal’s decision was affected by jurisdictional error because it failed to comply with s 359AA(1)(b)(i) of the Migration Act.
That section provides:
Information and invitation given orally by Tribunal while applicant appearing
(1) If an applicant is appearing before the Tribunal because of an invitation under section 360:
(a)the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) if the Tribunal does so – the Tribunal must:
(i) ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and
(ii)orally invite the applicant to comment on or respond to the information; and
(iii)advise the applicant that he or she may seek additional time to comment on or respond to the information; and
(iv)if the applicant seeks additional time to comment on or respond to the information – adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.
(Emphasis added.)
The primary judge held there had been no jurisdictional error on the part of the Tribunal because there was no evidence, nor any submission, that there would, or even could, have been a different outcome had there been strict compliance with s 359AA: J[51].
Was the Tribunal’s failure to comply with s359AA material?
By grounds 1 and 2, Mr Pham contends: first, that the primary judge erred in finding the Tribunal’s failure to comply with s 359AA(1)(b)(i) of the Migration Act was not material; and secondly, that the primary judge ought to have found that Mr Pham was denied the realistic possibility of a favourable outcome.
The exchange between the Tribunal and Mr Pham said to enliven s 359AA was as follows:
MEMBER: Okay. Now, I need to put this to you in a somewhat formal manner.
INTERPRETER: Yes.
MEMBER: And that is to say that the Tribunal has information that it considers would be the reason or a part of the reason for affirming the decision that is under review, subject to anything you may wish to say in comment.
INTERPRETER: Yes.
MEMBER: Okay. Now, you don’t have to rush into commenting on this, and you should take your time, and if you want more time you let me know, and I will consider that request if it’s reasonable.
INTERPRETER: Yes.
MEMBER: Now, this will be a bit confronting, sir, so you take your time in responding.
INTERPRETER: Yes.
MEMBER: Okay. So the information that I have is relevant because, as I say, it could be part of the reason or the reason for affirming the decision under review.
INTERPRETER: Yes.
MEMBER: Okay. So the information is that your marriage is contrived for the purposes of immigration. And that you are in fact not the husband – the father of the baby. And the wife was forced into marrying you by her parents. So you may take your time to respond. And you don’t have to comment, but you may wish to, because it is important to your case.
(Emphasis added.)
The Minister did not contend the primary judge was wrong to find that the Tribunal did not clearly explain to Mr Pham the consequences of the information being relied on in affirming the decision under review, despite the portions emphasised above. Having made that concession, the sole matter arising for consideration under grounds 1 and 2 is whether the Tribunal’s failure to give a more fulsome account of how the information might be relied on in affirming the delegate’s decision to refuse the temporary partner visa.
Although the burden of demonstrating, on the balance of probabilities, a realistic possibility that the Tribunal could have reached a different outcome had it complied with s 359AA remains with Mr Pham, that burden is undemanding. As was held by the High Court in Nathanson v Minister for Home Affairs [2022] HCA 26; 96 ALJR 737, Mr Pham is not required to demonstrate what steps he might have taken to advance the case, nor is he required to provide evidence as to what he would have done. None has been adduced. Mr Pham submitted only that the evidence gives rise to an inference, drawn on the balance of probabilities, that he could have responded differently if the Tribunal had explained the relevance of the information and the consequences of it being relied upon.
Mr Pham submitted that his failure to respond to the issue of Ms Vo’s commitment to him, in light of the allegation that she had been forced to marry him, showed that he did not fully understand the relevance of the allegations and the consequences of it being relied upon.
That submission cannot be accepted.
First, the very basis for the delegate’s refusal to grant Mr Pham a temporary partner visa was the insufficiency of evidence demonstrating that Mr Pham and Ms Vo were spouses at the date of his application. Consequently, the nature of their relationship was front and centre of the hearing before the Tribunal. Mr Pham could not have misunderstood that the determinative issue on review was whether he was in a genuine spousal relationship with Ms Vo at the relevant time and that the information put to him by the Tribunal concerned allegations that the relationship was contrived.
Secondly, Mr Pham was represented at the review by his registered migration agent. When the information was put to Mr Pham was granted a 15 minute adjournment. The Tribunal then enquired as to whether he had had sufficient time to consider the information. Mr Pham said that he had: Tribunal’s reasons at [32]-[34]. At that point, Mr Pham denied the truth of the information.
Nevertheless, and thirdly, at the conclusion of the hearing the Tribunal asked Mr Pham’s representative whether he had any further comment or whether anything had been overlooked. As the transcript reveals, the Tribunal acceded to a request to provide further submissions after the representative said in relation to the s 376 certificate and the allegation, “I didn’t know, obviously didn’t get the full details, so therefore I could not make any submission prior to the Hearing … Because I didn’t know all the details, so I would like to have a chance to make further submissions”. Those submissions did not deal with the information the Tribunal had put to Mr Pham. Rather, the submission put, apparently in reliance on the decision in Malhi v Minister for Immigration (2017) FCCA 119 was:
parties can enter into the relationship in the first place for motives that are not necessarily genuine. In fact they may enter into the relationship for the very purpose of a person obtaining a visa! ... And the Court said, with regard to the requirement that a relationship be continuing that an applicant and sponsor need only satisfy the Tribunal that the relationship will endure for the foreseeable future.
On the basis of the foregoing, Mr Pham’s submission that he did not fully understand the relevance of the allegation and the consequences of it being relied on by the Tribunal cannot be accepted. Nor can any reasonable inference be drawn that he would have responded differently.
Grounds 1 and 2 must be dismissed.
Did the Tribunal fail to comply with s 359A(1) in relation to Ms Vo’s evidence?
Mr Pham’s third ground of appeal was not raised before the primary judge and so requires leave. By that ground, Mr Pham contends that the Tribunal breached s 359A(1) in relation to Ms Vo’s evidence before the Tribunal.
Mr Pham contends that an insufficient explanation for not raising the ground below is not fatal: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; 238 FCR 588. He submitted there is no prejudice to the Minister in relying on the new ground of appeal and it is in the interests of justice to grant leave as no further evidence is required to determine the ground.
The Minister objected to leave being granted for two reasons: first, there has been no explanation as to why the argument was not promulgated in the court below in circumstances where Mr Pham was represented by the same solicitors, albeit by different counsel; and secondly, where the Minister submitted the ground is without merit.
There is no merit to the proposed new ground. Ms Vo gave evidence as to her feelings about the relationship at the time of hearing in these terms:
MS VO:I think it has changed. After I had the baby, he’s two years now, so I think that has brought us even more closer than before. Yeah, I feel like a lot more commitment and yeah, just a kid that brought us together and feelings changed.
MEMBER: It brought you together?
MS VOYeah, like it bring us a lot closer than before, like before we were close, but having this kid, like we know like – like there’s like a future for us, like you know, caring for the child and everything.
Mr Pham submitted this evidence enlivened the obligation under s 359A(1) of the Migration Act because it contained a “rejection, denial or undermining” (SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; 127 CLR 297 at [17]) of his claims to have been in a genuine spousal relationship at the time of his application.
The Tribunal found that Ms Vo’s evidence did tend “to undermine the concept of a genuine relationship at the time of the visa application”: Tribunal’s reasons at [39]. That finding came after the Tribunal had considered all of the material before it, including Mr Pham’s submission to the effect that “parties may enter into the relationship for the very purpose of a person obtaining a visa!” But the statutory requirement to inform an applicant for the purposes of s 359A “does not turn on the ‘reasoning process of the Tribunal’, or ‘the Tribunal’s published reasons’”: SZBYR at [17]. The evidence as given to the Tribunal by Ms Vo did not, in terms, reject, deny nor undermine Mr Pham’s claim that he was in a genuine relationship with Ms Vo at the time of his application. Indeed, her evidence was to the effect that they were “close before” and having a child together has brought them even closer to the point where they can see a future together. If the Tribunal had accepted that evidence on its face, it would have tended to lead the Tribunal to reject, rather than affirm, the decision under review. For that reason, no obligation on the part of the Tribunal under s 359A(1) arose.
For these reasons, the proposed ground 3 is without merit and leave to raise it must be refused.
Disposition
For the reasons given, the appeal must be dismissed. There is no reason why the Minister should not have his costs.
I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Sarah C Derrington. Associate:
Dated: 3 May 2023
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