Phong Quoc Tran v Minister for Immigration - [2005] FMCA 1926

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PHONG QUOC TRAN v MINISTER FOR IMMIGRATION

[2005] FMCA 1926

MIGRATION – Review of MRT decision – partner (migration) class BC Visa – allegation of domestic violence – failure to produce appropriate declarations.

Applicant:

PHONG QUOC TRAN

Respondent:

MINISTER OF IMMIGRATION OF MULTICULTURAL AND INDIGENOUS AFFAIRS

File Number:

BRG397 OF 2005

Judgment of:

Baumann FM

Hearing date:

22 November 2005

Delivered at:

Brisbane

Delivered on:

22 November 2005

REPRESENTATION

Counsel for the Applicant:

Mr Nguyen (directly briefed)

Counsel for the Respondent:

Ms Brennan

Solicitors for the Respondent:

Clayton Utz

ORDERS

That the Application be dismissed.
That the Applicant pay a contribution to the costs of the Respondent fixed in the sum of $7 000 within 30 days.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BRISBANE

BRG 397 of 2005

PHONG QUOC TRAN

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

I give some extempore reasons in respect of this issue. The applicant seeks an order for review of a decision of the Migration Review Tribunal (MRT). The applicant is a national of Vietnam born

23 August 1982 and applied for a partner (migrant) class BC visa on

19 April 2002. It is common ground that after arrival in Australia the relationship between the applicant and the supporting spouse broke down. The applicant asserts that the relationship broke down because he had suffered domestic violence. There is a very clear legislative and regulatory process when such events occur.
As the MRT in its decision delivered on 15 June 2005 correctly identifies, at paragraph 36 -
At the time of the decision, the visa applicant must continue to meet those requirements, unless the relationship has ceased and under paragraph 100.221(4)(c)(i) domestic violence is taken to have occurred.
Further at paragraph 37 the MRT correctly identifies that:
For the visa applicant to meet the requirements of subclause 100.221(4) the only issue to be determined is whether domestic violence has occurred.
The method in which that issue is determined has been the subject of earlier authorities and in particular requires, pursuant to regulation 1.23 that where a person is taken to have suffered or committed domestic violence, and provides appropriate evidence, then the decision maker can be so satisfied. Of particular relevance in this case is regulation 1.24 which provides that a statutory declaration under regulation 1.25 (which deals with statutory declarations by or on behalf of the alleged victim) must be by a “competent” person.
It is common ground in this matter, that a statutory declaration was provided by a person who claimed to be both a social worker with formal qualifications and a person who was eligible to be a member of the Australian Association of Social Workers. That person, Nga Hahthi Haydon provided the declaration to the applicant. It is common ground that Ms Haydon was not so qualified to give that declaration and was not a “competent” person.
It is apparent from the decision of the Tribunal and from the discussion I have had today with Mr Nguyen who is counsel directly briefed on behalf of the applicant, who is not present in court and Ms Brennan, who is counsel for the respondent Minister for Immigration and Multicultural and Indigenous Affairs, that the MRT was in a position where, if the declaration did not comply with the obligations of law, then the MRT had no other alternative but to dismiss the application before it.
Whilst that may be seen to be somewhat harsh to the applicant, that is the clear legislative intent. That is the basis upon which the decision of the MRT was made. I am satisfied from the “relevant documents” (being the documents prepared and filed by the Respondent as usually directed), that the issue of competency of the persons relied upon by the applicant, (it being remembered that the applicant, bears the evidentiary onus of satisfying those conditions), was identified as an issue by the MRT after the application for review to that Tribunal had been filed consequent upon the refusal by the delegate of the Minister to grant the application.
It is worth remembering, of course, that the MRT effectively stands in the shoes of the decision maker but is entitled to seek further evidence and to further explore matters that were before the delegate. In this case, it is absolutely clear from the “relevant documents”, in particular the letter to the Solicitors/Migration Agents appearing on behalf of the applicant, that as early as 4 January 2005, the MRT had invited the applicant to provide additional information. That information was requested within 28 days. The information included
a)documentary evidence that Ms Haydon is a "competent person" as defined by the Migration Regulations and
b)documentary evidence that Dr Truong is also a "competent person" as defined in the Migration Regulations.
By letter on 29 January 2005, the solicitors for the applicants sought an extension of time until 31 March 2005, to respond to their requests. In that letter, the solicitors say in part -
Dr Truong is on holidays. Our client is waiting for his return in order to obtain a copy of his qualifications. As to Ms Haydon, we are advised that she is waiting for advice from her supervisor before releasing information. We will revert to you when your requests are available.
An extension of time as requested was given by the MRT by letter of 1 February. On 17 February 2005, the solicitors for the applicant provided correspondence to the MRT, which attached appropriate certification of qualification by Dr Truong. They further say in that letter that -
As to Ms Haydon, we can no longer locate her.
Subsequently, on 1 April 2005, the MRT gave notice to the applicant that the matter would be heard by the Tribunal in Brisbane on 19 May 2005. Appropriate Vietnamese interpreters were made available. A transcript of those proceedings is attached. The proceedings reflect that the critical issue before the Tribunal was the qualifications of Ms Haydon. It is clear that due to the persistence of the person appearing for the applicant, and not without hesitation, the Tribunal member allowed the applicant's representative to address the member, Ms Nguyen who was apparently representing the applicant at the Tribunal, acknowledged that Ms Haydon whilst providing a statutory declaration had confessed that she did not hold the qualifications as a social worker.
The representative sought to explain the delay to the member, in providing further information about the alleged social worker. The member says
I have asked for documentary evidence that she is a competent person as defined in the regulations. That she is a member of the Australian Association of Social Workers or is recognised by that Association as a person who is eligible to be a member of that association, is performing the duties of a social worker. At the moment I don't have documentary evidence of that. That's all I am trying to say about it.
Ms Nguyen then responds -
Yes, can the Tribunal give me time to try and –
Member: Well, you've had plenty of time plus you've received an extension of time.
Ms Nguyen: Yes, I have but I will try to ask her to give that qualification.
Member: But you have asked for that and that is specifically what I've asked for.
Ms Nguyen: But she refused to give it to me, member.
Member: Well, how is that going to assist by me giving further time. You've had since, what, January, I sent that letter.
Ms Nguyen: Yes, well, she has refused to give it to me and then she went on leave and I could not locate her member so I am now going to come back to her and say, look, it's crucial for my client's case. I tried to ask her to give that. There's also one issue.
Member: No, I'm sorry, as I said to you, you don't have the right to make submissions at the hearing.
Ms Nguyen: All right, that's fine. Member: I am not going to give you any more, you've had opportunities to put everything in writing that you wanted to. We had detailed submissions earlier but not in relation to this. Look, I will allow you and with no further extensions, I will allow you seven days to provide that information but I will not give you a further extension after that.
Ms Nguyen: Yes, thank you.
Member: All right, and specifically the information that has been sought and I am just letting you know that you will need to be certified copies.
Ms Nguyen: Yes.
Member: All right, I'm going to finish the hearing now. I'm going to call the hearing attendant.
It is apparent from that exchange that the member was given the impression by Ms Nguyen that there was some prospect of certification of qualifications of the social worker being provided. It became apparent by letter dated 23 May 2005, after the hearing that Ms Haydon could not provide the certification because she was not qualified. I spent some time in these ex tempore reasons setting out the history. It is in my view important both to the application which is made by Mr Nguyen, who is the advocate for the applicant today for an adjournment in which he would hope to put an argument that there has not been procedural fairness offered to the applicant.
In my view, the history of this matter shows that there is no basis for such an allegation. It would in my view, be futile to allow either an adjournment or an amendment of the application. As a result, I refuse the application for an adjournment. Furthermore, there has been ample time for the Applicant to articulate any new grounds.
The written submissions, some of which I have referred to in these extempore reasons, make it clear that it was a critical, in my view, a fatal failure by the applicant to produce to the Tribunal the evidence required under the regulations. Whilst I have some sympathy for the applicant who says now, that he was mislead into believing Ms Haydon had the required qualifications, as I have already indicated he was on notice many months earlier before the hearing about the concerns the MRT had about Ms Haydon and it seems that rather than take steps at that time, to see whether further evidence could have been obtained, he chose not to do so.
In my view, there is no basis that has been identified by the applicant to establish jurisdictional error. As a result of s.474 of the Migration Act, the decision is a privative clause decision and I am bound by law to dismiss the application. I do so.
It is appropriate in this case, in accordance with many authorities that costs ought follow the event in the usual course. Costs should follow the event in this course. I make an order for costs. I order that the applicant pay a contribution to the respondent's costs fixed in the sum of $7000.00 within 30 days.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Baumann FM

Associate:

Date: