PHUNG v Minister for Immigration

[2015] FCCA 1302

FEDERAL CIRCUIT COURT OF AUSTRALIA

PHUNG v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1302

Catchwords:
MIGRATION – Migration Review Tribunal – no jurisdictional error – application dismissed.

Legislation:  
Migration Act 1958 s.476

Applicant: BINH PHUNG

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 3213 of 2013

Judgment of: Judge Street

Hearing date: 14 May 2015

Date of Last Submission: 14 May 2015

Delivered at: Sydney

Delivered on: 14 May 2015

REPRESENTATION

Counsel for the Applicant: Mr N. Poynder

Counsel for the Respondent: Mr M.J. Smith

Solicitors for the Respondent: DLA Piper Australia

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the sum of $6646.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 3213 of 2013

BINH PHUNG

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act in respect of a decision of the Tribunal made on 12 December 2012 affirming a decision of the delegate not to grant the applicant a provisional class UF visa. The grounds of the application are as follows:

   1. The second respondent affirmed a decision of the first respondent to refuse a subclass 309 Partner visa to Mr Chao Ma, who is a child of the applicant’s wife.

   2. The reason for the deicison of the second respondent was that it was not satisfied Mr Ma was a “member of the family unit” of the applicant’s wife within the meaning of reg 1.12 of the Migration Regulations 1994 (the regulations), nor a “dependent child” of the applicant’s wife within the meaning of reg 1.03, nor “dependent” within the meaning of reg 1.05A(1) of the regulations.

   3.In affirming the decision of the first respondent, the second respondent committed jurisdictional error.

   Particulars

   (a) The second respondent failed to carry out its duty to review the decision of the first respondent by failing to make an obvious inquiry about a critical fact; namely, whether documents provided by Fang Yuan International Pty Ltd relating to the transfer of funds by the wife of the applicant to her sister in China were genuine.

   (b) The second respondent misconstrued the requirements of regs 1.12, 1.03, and 1.05A(1) of the regulations by failing to appreciate that the dependency of Mr Ma on the wife of the applicant could be met by evidence of funds sent by the wife of the applicant to her sister in China for the benefit of Mr Ma.

2. The first ground in substance is asserting a jurisdictional error by failing to conduct the review required by the statute.  There is no substance in relation to that ground.  It is clear the Tribunal conducted the review in accordance with its statutory obligations.  It was not necessary for the Tribunal to make further inquiry about matters concerning the alleged transfer of the $16,000 the subject of supplementary evidence by the applicant after the hearing. 

3. At the time of the hearing before the delegate in which the critical issue was the dependence of the son on the mother, the only evidence of payments adduced in respect of the son who was then living with his grandparents amounted to $4,600.  The Tribunal found as a fact that that amount was inadequate to provide for the son.  That finding of fact was open on the evidence.  The further material advanced purported to reflect a transfer of funds in excess of $16,000 up to the relevant time which was the 9 August 2010 in respect of the dependence of the son at the time of the making of the application.. 

4. It defies credibility to assume that if there was evidence of the transfer of the sums amounting to $16,000 when dependence was the issue before the delegate that that was not something that the applicants would have advanced at that time.  It is not a matter, however, for this Court to make findings of fact.  The allegation advanced in the application identified the alleged money, food, clothing, accommodation and daily expenses required by the son at para.47.  It is clear the accommodation was provided by others than the mother including the grandparents and then the sister. 

5. In the application the type of support identified as referrable to the son is clearly wrong in relation to the assertion of accommodation, but to the extent it refers to money, food, clothing and daily expenses it gives an estimate amounting to $2,000 per year for tuition and $135 per year.   That alleged dependence identified by the son in no way reflects payments to the amount of the $16,000 now advanced as being a source of alleged error by the Tribunal.  Moreover, on the evidence given by the mother to the Tribunal it is clear that the remittances that the mother was referring to were remittances for the $4,600.  The concern that the Tribunal had with the credibility of the applicants is obvious.  Relevantly, the Tribunal made findings:

   16.    The review applicant argued that he and the primary applicant had substantially supported the visa applicant.  The review applicant’s representative stated that the rate of exchange for the Chinese Yuan to Australian dollar was such that there was ample to support the visa applicant.  The Tribunal indicated it would check independent sources on that information as cost of living can be high in China.  The representative further argued that the primary visa applicant took cash back to China.  The Tribunal asked how this was possible given the review applicant’s evidence is that she only worked for short periods of time i.e. three months and then stopped work at the time of application.  The Tribunal asked if there were any tax returns to support the claim that the primary review applicant made enough money to support the visa applicant.  They indicated there were not.  The Tribunal indicated it would research the cost of living.  The link below indicated that the cost of living was not significantly cheaper than Australia for basic items.  The average monthly disposable income was just over $500AUD.  That amount times 24 months would be $12,000AUD.  The amount sent to the visa applicant’s aunt by the primary visa applicant at the time of application and for a substantial period prior to the application was just over one third of the average monthly disposable income.

   …

   22.    The Tribunal does not accept this.  The application was made in August 2010.  The decision was attached to the application for review and clearly set out the issues.  The review applicant has had ample time to collate financial records.  The review applicant did provide documents of financial transfers and seemed to understand the issue.  The Tribunal does not accept his evidence that the primary visa applicant was unaware she could get records from financial institutions.  The Tribunal found the evidence provided by the review applicant to be evasive and contradictory.  The review applicant at first stated that the primary visa applicant did not work.  His evidence was that she did not work at the time of application and when they married.  Later in the hearing he said she did some cash in hand work.  The representative, in response to discussion of the issue at the hearing, stated that the primary visa applicant took cash when she visited China.  At no time during the hearing was it mentioned that substantial amounts of money was sent via another financial institution other than the institutions previously identified in evidence presented to the Department and Tribunal.  There was no explanation as to why the primary visa applicant would use a different institution from the ones she provided evidence of to the Department and Tribunal.  There was no explanation as to why receipts for such large amounts of case were not kept when receipts for small amounts were.  The previous receipts, supplied to the Tribunal, showed small amounts being transferred; they were transferred directly to the visa applicant and were signed and dated. 

   …

   24.    The documents indicate money sent to the visa applicant’s aunt they were not sent to the visa applicant or his grandparents with whom he lived.  The documents do not give any detail of the money being received and in the column listing RMB detail indicate 0 was received and no date of receipt.  The documents are not signed or dated.   The Tribunal does not accept these documents as credible evidence that money was sent to the visa applicant.

   25.    The Tribunal accepts that the primary visa applicant sent some money to her sister in China.  The Tribunal accepts that some of that money may have been sent to assist with the financial needs of the visa applicant.  However the evidence from the review applicant and visa applicant, as set out in the delegate’s decision attached to the application for review, and at hearing is that at the time of application the visa applicant was provided shelter by his grandparents, his food needs were met by his Aunt and any additional requirements met by his mother or Aunt.

   26.    On the evidence provided the Tribunal is not satisfied that the visa applicant was wholly or substantially reliant on the primary visa applicant for financial support and that he was reliant at the time of application and for a substantial period immediately before that time.  The Tribunal finds that the visa applicant’s basic needs for shelter, food and clothing were not being met by the primary visa applicant. 

   27.    The Tribunal accepts that the review applicant and primary visa applicant have been providing financial support to the visa applicant and that they feel obliged to continue to support the visa applicant. However, the review applicant provided limited persuasive and credible evidence about the nature of such support and its use for the visa applicant’s basic needs at the time of application. Having considered the totality of such evidence, and on the basis of the limited credible evidence of the support provided to the visa applicant, at the time of application and for a substantial period immediately before that time, by the review applicant and visa applicant, the Tribunal is not satisfied that, at the time of application, the visa applicant’s reliance on the review applicant and primary visa applicant is greater than any reliance by him on any other person or source of support for financial support to meet his basic needs for food, clothing and shelter. The Tribunal is not satisfied that he meets r.1.05A(1)(a)(ii) and r. 1.05A.

6. There was no substance in the assertion of the failure to make an inquiry constituting a failure to conduct the review.  It was open to the Tribunal to make the adverse findings it did in relation to that transfer.  Mr Poynder sought to endeavour to read para.24 in its last sentence as if there was some critical step that was missing.  There is no substance in that construction.  It is clear that the critical issue was whether the $16,000 in the supplementary material was sent for the benefit of sustaining the dependence of the son and the words said “to the visa applicant” must be read in the context of the decision as a whole and not with an eye for error.  

7. Accordingly, there is no substance to ground 3 of the application.  Further, in relation to the construction of the issue of dependence it is clear that the Tribunal correctly identified that the critical issue as to whether the son was wholly or substantially dependent on the other person for some financial support as identified in para.5 referring to reg.1.05(1). There is no substance in the contention that the Tribunal misconstrued the requirements in respect of the applicant son. Ground 2 has no merit. In respect of the visa applicant there is no jurisdictional error of the kind alleged in the application.  The application is dismissed. 

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  19 May 2015