Phan v Minister for Immigration
[2016] FCCA 522
•11 March 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PHAN v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 522 |
| Catchwords: MIGRATION – Judicial review – partner visa – Tribunal found applicant did not comply with s.5F and reg.1.15A – no jurisdictional error established. |
| Legislation: Migration Act 1958 (Cth), s.5F Migration Regulations 1994 (Cth), r.1.15A |
| Kumar v Minister for Immigration & Anor [2015] FCCA 3161 WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 SZIAI [2009] HCA 39 |
| Applicant: | NGOC THO PHAN |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1297 of 2015 |
| Judgment of: | Judge Harland |
| Hearing date: | 2 March 2016 |
| Date of Last Submission: | 2 March 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 11 March 2016 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Counsel for the Respondents: | Ms Gangemi |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application for judicial review filed on 9 June 2015 is dismissed.
The applicant is to pay the first respondent’s costs of the proceeding fixed in the sum of $4,200.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1297 of 2015
| NGOC THO PHAN |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for judicial review of the Tribunal’s decision dated 11 May 2015, which affirmed the Delegate’s decision to refuse the applicant’s application for a Partner (Residence) (Class BS) visa. The applicant appeared unrepresented this morning and had the assistance of a Vietnamese interpreter.
The applicant’s application for judicial review filed on 9 June 2015, sets out the grounds for review:
1. The decision of the Tribunal was made without jurisdiction or is affected by an error of jurisdiction;
Particulars:
a. the tribunal has erred in its conclusion that the applicant and sponsor do not meet the requirements of s.5F(2)(b) and (c) and that it does not meet the criterion contained in cl.801.221(2)(c) of a subclass 801 visa.
b. the tribunal when considering the financial and social aspects of the parties relationship and the nature of their commitment has taken irrelevant factors into account and not taken into account relevant factors.
Her application does not give any particulars which is not uncommon when applicants do not have the assistance of a lawyer. After explaining the nature of the proceedings today and the differences between these proceedings and the proceedings before the Tribunal, I invited the applicant to expand on her complaints about the Tribunal decision. The issues that the applicant raised and, again, this is not uncommon, really went to the issue of merit. I acknowledge that it is difficult for applicants without the benefit of legal assistance to navigate through this very technical area of law.
The applicant complained about the Tribunal finding that her relationship was not genuine because of their lack of use of their joint bank account. She sought to give additional evidence as to the reasons why the applicant and her spouse do not use their joint account, except on a very limited basis. She also sought to give further evidence as to why she and her husband have not yet had a wedding ceremony or party. She also sought to expand on the issue of the attitude of her in-laws to their marriage.
As the solicitor for the Minister correctly pointed out, these are issues which go to findings of fact, which is the exclusive domain of the Tribunal and not this Court. Turning to the first complaint of the applicant, which is that the Tribunal erred when finding that the applicant did not meet the requirements of the legislation, it is first useful to set out the applicable legislation. In order to meet the visa requirements, it is necessary for the applicant to satisfy the requirements of s.5F of the Migration Act 1958 (Cth) which defines when a person is a spouse of another person.
It is very clear from the legislation that there is a specific application as to the definition of spouse for the purposes of the Migration Act and it is not referring to the definition of spouse as is understood in ordinary usage. That is, it is not enough for the parties to be married; they must satisfy the requirements set out in subsection (2). Section 5F is set out as follows:
(1) For the purposes of this Act, a person is the spouse of another person if, under subsection (2), the 2 persons are in a married relationship.
(2) For the purposes of subsection (1), persons are in a married relationshipif:
(a) they are married to each other under a marriage that is valid for the purposes of this Act; and
(b) they have a mutual commitment to a shared life as husband and wife to the exclusion of all others; and
(c) the relationship between them is genuine and continuing; and
(d) they:
(i) live together; or
(ii) do not live separately and apart on a permanent basis.
(3) The regulations may make provision in relation to the determination of whether one or more of the conditions in paragraphs (2)(a), (b), (c) and (d) exist. The regulations may make different provision in relation to the determination for different purposes whether one or more of those conditions exist.
It is also necessary to consider the requirements set out in the Migration Regulations 1994 (Cth) which inform the factors that the Tribunal must consider when determining whether or not an applicant satisfies the conditions of a visa. Regulation 1.15A deals with this. Subsection (2)(c) applies to the applicant, as that refers to a partner (residence) (class BS) visa. When considering whether or not to grant that visa, the Minister must consider all of the circumstances of the relationship, which include the matters set out in sub-regulation (3):
(3) The matters for sub-regulation (2) are:
(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 person in the relationship owes any legal obligation in respect of the other; and
(v) the basis of any sharing of day‑to‑day household expenses; and
(b) the nature of the household, including:
(i) any joint responsibility for the care and support of children; and
(ii) the living arrangements of the persons; and
(iii) any sharing of the responsibility for housework; and
(c) the social aspects of the relationship, including:
whether the persons represent themselves to other people as being married to each other; and
the opinion of the persons’ friends and acquaintances about the nature of the relationship; and
any basis on which the persons plan and undertake joint social activities; and
the nature of the persons’ commitment to each other, including:
the duration of the relationship; and
the length of time during which the persons have lived together; and
the degree of companionship and emotional support that the persons draw from each other; and
whether the persons see the relationship as a long‑term one.
It is clear from the decision of the Tribunal at paragraph 13 and 14 that the Tribunal understood the legislative requirements which it was required to apply when considering whether or not to affirm the Delegate’s decision to refuse the applicant’s visa application. The solicitor for the Minister referred to a decision of Judge Street in Kumar v Minister for Immigration & Anor [2015] FCCA 3161, which dealt with a partner temporary class UK visa. The same requirements as set out in regulation 1.15A apply. At paragraph 10 of that decision Judge Street said:
“It is not necessary for the Tribunal to individually address each of the subcategories in its reasoning, provided it has had regard to each of those subcategories. On a fair reading of the Tribunal’s decision there is no basis to infer that the Tribunal did not have an intellectual engagement with and have regard to each of the mandatory matters identified in regulation 1.15A.”
I agree with Judge Street’s comments. It will become clear that I am satisfied that in this case the Tribunal also had proper regard to the factors it was required to consider. It is clear from the Tribunal’s decision that its focus was on s.5F(2)(b) and (c). The Tribunal accepted that the parties were validly married and met the requirements of s.5F(2)(a). They also met the requirements of s.5F(2)(d) as they are living together and they supplied evidence of bank account statements and other documents which showed their joint address.
It is important to note, however, the wording of ss.(2), which clearly indicates that the parties must satisfy each of those subsections and that is clear by the use of the word “and” at the end of subsections (a), (b) and (c). Therefore, if the applicants are unable to satisfy one of those subcategories then they are unable to satisfy the requirements of the visa.
The focus of the decision of the Tribunal is on the two subcategories that it was not satisfied about. The first category is subsection (2)(b), which is the financial aspects of the relationship. Regulation 1.15A, subsection (3)(a) refers to relevant factors to consider when considering the financial aspects of the relationship, including joint ownership of real estate or other assets, joint liabilities, the extent of any pooling of financial resources, whether one person in the relationship owes any legal obligation with respect to the other, and the basis of sharing day-to-day household expenses.
The Tribunal considered this issue at paragraphs 18 to 21. The Tribunal indicated that given the Tribunal had only been provided with one statement for their joint account and given the limited use of the joint account, the Tribunal placed little weight on the existence of the joint account as being indicative of their genuine relationship. The Tribunal’s comments were not limited to that factor alone, however were also informed by inconsistencies in the parties’ evidence about the use of their funds, the payments made to each other, and payments with respect to the household.
Those inconsistencies which the Tribunal put to the parties caused it to be dissatisfied about the applicant’s credibility. And the Tribunal also noted that parts of the applicant’s evidence was inconsistent with what she had earlier put in her application. I am satisfied that the Tribunal had proper consideration of the factors it was required to under section 5F subsection (b) and that it was open to the tribunal to reach the conclusion that it did based on the evidence before it. The tribunal then turned to consideration of section 5F subsection (2) subsection (c). I shall withdraw that. The tribunal then had consideration of the requirements at regulation 1.15A subsection (3)(b) which addresses the nature of the household, which includes living arrangements and shared responsibility for housework and the like. The tribunal noted at paragraph 24 of its decision that the applicant and sponsor gave generally consistent evidence with respect to the nature of their household, but the tribunal gave this less weight due to the other concerns it had about their relationship, which is outlined later in its decision.
The Tribunal next considered the factors set out at regulation 1.15A subsection (3)(c) which is the social aspects of the relationship including whether they represented themselves to other people as being married and the opinion of their friends and acquaintances about the nature of their relationship and the basis upon which they had any plans and undertook any joint social activities. The tribunal addressed this factor at paragraphs 25 to 29 of its decision. The tribunal considered that the evidence that the parties gave in this respect was limited. The parties had not met each other’s friends and, to their knowledge of each other’s friends, appeared to be often quite negligible and not consistent with a genuine relationship spanning over five years, three and a half of which they have been married.
The Tribunal also considered the inconsistent evidence that the parties gave with respect to the sponsor family’s reaction to her marriage and the tribunal sets out some of those inconsistencies. The tribunal found that the social aspects of the parties’ relationship is limited and appears largely to be confined to the applicant’s family members and whilst the tribunal was satisfied that the parties undertake joint social activities among this small circle of mainly family members, it was not satisfied that they represent themselves as a couple outside of this group and that the tribunal was not satisfied that the evidence showed that the social aspects of their relationship demonstrated a spousal relationship.
The next factor that the Tribunal had to consider pursuant to regulation 1.15A subsection (3)(d) was the nature of their commitment to each other, which includes the duration of the relationship, the length of time they have lived together, the degree of companionship and emotional support and whether or not they see their relationship as a long-term one. The Tribunal addressed this at paragraphs 30 to 36. The Tribunal was satisfied that the parties had been married since November 2011. The Tribunal noted that the evidence the parties gave was vague about each other’s employments and they were unable to name each other’s employers, although they gave consistent evidence about their respective work days, hours and location of each other’s employments.
The Tribunal expressed concern that the applicant and sponsor’s knowledge of fairly basis but significant aspects of each other’s daily lives was not consistent with a genuine and committed relationship of several years. The Tribunal also considered the evidence that the parties gave which was inconsistent about when they first met and formed their relationship. When the Tribunal put these inconsistencies to the parties, the parties said that these events happened a long time ago. The Tribunal acknowledged that but said that given that the accounts the parties gave were completely different, that raised concerns for the Tribunal that their relationship is a contrived one.
The Tribunal also noted the applicant’s apparent lack of knowledge of the circumstances surrounding the sponsor’s child. The final factor that the Tribunal mentioned was the fact that although the parties married in November 2011 they have not had a traditional wedding ceremony or party. The Tribunal notes that in the applicant’s statement she said their plan was to have a wedding in Melbourne in two years’ time once they were more financially stable. The Tribunal further noted that the parties said at the hearing that they were also waiting until the visa application was final. At the hearing before me the applicant further said that they were planning to have a wedding in Vietnam when they could afford to.
The Tribunal expressed concern about the parties’ commitment to each other and their relationship in light of a failure to have a wedding ceremony over the last three and a half years of their relationship. Whilst, with respect to that aspect, I might have reached a different conclusion, that is not the appropriate test. All of the factors the applicant raised at the hearing before me were addressed in the Tribunal’s decision. It is also clear that the Tribunal has considered the relevant factors set out in the legislation and regulations. The Tribunal is the sole arbiter of facts. The issue of the parties’ credibility is a matter for the Tribunal and not this Court. What the applicant really asks this Court to do is to engage in a merits review, which this Court does not have the power to do.
I accept the submissions made by the solicitor for the Minister, both in writing and orally, that the Tribunal has properly considered what it was required to consider and that there is no jurisdictional error established. The Minister’s written submissions correctly state that it was not necessary for the Tribunal to refer to every piece of evidence and every contention made in its written submissions and the authority for that is WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at [46].
Finally, in submissions-in-reply the applicant complained that if the Tribunal did not believe that theirs was a genuine relationship, the Tribunal member should have visited their home. She also said that whilst there may have been inconsistencies, she and her husband are not educated people but they told the truth. The solicitor for the Minister referred to the High Court decision of SZIAI which makes it clear that the Tribunal does not have a duty to make inquiries and, therefore, does not have a duty, nor is there anything in the framework or guidelines that would allow for the Tribunal member to make a home visit. In any event, that would not have addressed the issues that the Tribunal has clearly considered in its decision and, as the solicitor for the Minister pointed out, the applicants were on notice about the insufficiency of the evidence as to the genuineness of their relationship because this is something that was raised by the Delegate in the Delegate’s decision.
I am satisfied, considering the decision as a whole, that the Tribunal properly considered the factors that it was required to and has not placed reliance on any irrelevant factors. For these reasons, I will dismiss the application for judicial review.
At the end of the hearing I raised the issue of costs and explained to the applicant that in matters of this type, the successful party is normally entitled to costs and that if she was successful she would be entitled to the costs she incurred such as filing fees which the solicitor for the Minister readily conceded. I informed the parties that I was dealing with the issue of costs now to save the parties having to come back to argue that issue when the decision is handed down. The solicitor for the Minister sought costs in the sum of $4,200 in the event the Minister was successful, noting that this is below the court scale which allows costs of $6,824 on a final hearing of this type. The applicant did not wish to say anything with respect to the costs issue. I am satisfied that it is appropriate to award the first respondent its costs in the sum of $4,200 and I will so order.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Harland
Associate:
Date: 11 March 2016
0