QMV v Minister for Immigration

[2020] FCCA 444

FEDERAL CIRCUIT COURT OF AUSTRALIA

QMV v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 444

Catchwords:
MIGRATION – Administrative Appeals Tribunal – Subclass 155 (Five Year Resident Return) visa – where applicant is a minor – where the applicant’s application is reliant on his mother’s application – where the mother included incorrect information – where the applicant has spent considerable time in Australia and has siblings who are Australian citizens – no jurisdictional error in Tribunal’s decision – application dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.11.11
Migration Act 1958 (Cth), ss.98, 101, 107A, 109
Migration Regulations 1994 (Cth), reg.2.41

Cases cited:

Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593
Minister for Immigration and Border Protection v Lium [2019] FCA 1850
Minister for Immigration and Citizenship vSZMTS (2010) 240 CLR 611
Minister for Immigration and Multicultural Affairs v Yusuf (2011) 206 CLR 323

Applicant: QMV

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 4012 of 2017

Judgment of: Judge Humphreys

Hearing date: 25 February 2020

Date of Last Submission: 25 February 2020

Delivered at: Parramatta

Delivered on: 25 February 2020

REPRESENTATION

Counsel for the Applicant: Mr Karp

Solicitors for the Applicant: My T Nguyen Solicitors

Solicitors for the Respondents: Mr Gao, Australian Government Solicitors

ORDERS

1. The name of the First Respondent be changed to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.

2. Leave is granted to rely upon the amended application.

3. In relation to the publication of any judgment in relation to this matter, the Applicant is to be referred to using a pseudonym QMV for 5 years.

4. The application is dismissed.

5. The Litigation Guardian to pay the First Respondent’s costs fixed in the amount of $1500.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

SYG 4012 of 2017

QMV

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR EX TEMPORE JUDGMENT

(Revised from Transcript)

Introduction

1. This judgment is in relation to the second applicant, QMV v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs. The applicant is a 14 year old Vietnamese national.

2. On 15 November 2011, the applicant’s mother, TMDN, was granted a temporary Partner (Class UK 820) visa. On 15 August 2012, the applicant arrived in Australia with his mother, having been granted a Child Class TK visa. That visa was granted on the basis of his mother’s partner visa application.

3. On 25 October 2012, the applicant and his mother were both granted permanent Partner (Class UK 801) Visas and subsequently granted a Subclass 155 (Five Year Resident Return) visa.

4. On 6 July 2017, both the applicant and his mother were issued with a Notice of Intention to Consider Cancellation because the delegate formed a view that they had not complied with s.101 of the Migration Act 1958 (Cth) (“the Act”) in relation to the mother’s partner visa. The applicant’s visa was cancelled on 13 September 2017.

5. The applicant sought merits review in the Administrative Appeals Tribunal (“the Tribunal”). In a decision dated 12 December 2017, the Tribunal affirmed the decision to cancel the applicant’s Subclass 155 (Five Year Resident Return) visa.

6. The applicant now seeks judicial review of the Tribunal’s decision. Given the applicant is a minor, the Court previously ordered that the applicant’s mother, who I will refer to as TMDN, be appointed as the applicant’s litigation guardian pursuant to rule 11.11 of the Federal Circuit Court Rules 2001.

7. Further, given that the applicant is a minor, the Court orders that any publication of this judgment, the applicant and his mother, both in this decision and in the mother’s decision, are to be referred to by pseudonyms.

8. By consent, this matter is being heard concurrently with the application of the applicant’s mother, who filed her application at the same time. Whilst a separate decision has been issued in relation to the applicant’s mother, both judgments should be read in conjunction with each other.

Administrative Appeals Tribunal’s Decision

1. The Tribunal decision in respect of the applicant is in many respects similar to the decision that relates to the applicant’s mother. The issues were the same and the consideration of the Tribunal was in most respects, again, the same. The short history of the matter is that on 6 July 2017, the applicant and his mother were issued with a Notice of Intention to Consider Cancellation because the delegate formed the view that the visa holders did not comply with s.101 of the Act in relation to the mother’s partner visa.

2. The applicant provided a response in relation to the Notice of Intention to Consider Cancellation, but his visa was cancelled on 13 September 2017. The cancellation does not relate to any matter or act committed by the applicant. Rather, it relates to the fact that the mother provided untruthful information in her application for a partner visa. Counsel for the applicant, who appears for both the mother and the applicant, conceded in relation to the mother that there was a valid basis for the cancellation of her visa. As a result of the cancellation of her visa, the applicant’s visa was also cancelled.

3. Following a finding that the visa could be cancelled, the Tribunal went on to consider the discretionary matters it was required to consider pursuant to s.109(1)(c) of the Act read in conjunction with Regulation 2.41 of the Migration Regulations 1994. These matters included that the decision to grant the original visa was wholly based on incorrect information provided to the Department by the applicant’s mother. It was on this basis the applicant’s visa was granted.

4. The Tribunal conceded that the applicant himself made no claims regarding the matters the Tribunal ultimately found were incorrect in the mother’s application, as his visa application was undertaken on his behalf entirely by his mother.

5. The Tribunal noted the applicant’s mother had given evidence that the applicant was well-settled in Australia and was attending school. The Tribunal noted there was nothing adverse known about the applicant concerning his behaviour or obligations under the Act and there were no other known instances of non-compliance by the applicant. There was little evidence of his contribution to the community. The applicant is only a minor.

6. The Tribunal noted the applicant’s visa was cancelled and he does not hold any other visa. The applicant may become an unlawful non-citizen subject to mandatory detention and removal from Australia. Whilst the applicant may be eligible to make a valid visa application for certain visas without Ministerial Intervention, he may be the subject to an exclusion period. There is evidence that the applicant’s two younger siblings are Australian citizens and that if the applicant’s visa is reinstated, he may be able to apply for Australian citizenship in the future.

7. The Tribunal noted that as at the date of the decision in 2017, the applicant was still young and had been living in Australia for over five years and attended an Australian school. The Tribunal accepted that a degree of hardship may be caused if the applicant’s visa was cancelled as that may mean that the entire family would return to Vietnam. The Tribunal did not accept that the applicant would be denied household registration or access to services in Vietnam. The applicant is a Vietnamese citizen. The Tribunal formed the view that the best interests of the applicant would not be adversely affected by the cancellation of his visa and the entire family’s return to Vietnam may allow him to be reunited with his father, who is currently a resident in Vietnam.

8. The Tribunal noted that all family members, including the applicant, had spent considerable time in Australia and may be used to life in Australia, although the Tribunal was mindful that the applicant had lived in Vietnam at least until 2011. His father and maternal grandparents and family live in Vietnam and the Tribunal was satisfied that at least some form of family support would be available to the applicant. Critically, at paragraph 47, the Tribunal noted that the applicant had some language skills.

9. The Tribunal was of the view that the circumstances of the applicant’s mother’s travel to Australia and the contrived relationship that she deposed to in her application for a visa were so significant, if the correct information had been known, the applicant’s mother may not have been entitled to the grant of a visa. In turn, the applicant would not have been entitled to the grant of a visa as a dependent child and a member of the family unit.

10. In the Tribunal’s view, that factor outweighed all other considerations. Accordingly, the Tribunal formed a view that the decision of the delegate should be affirmed.

Grounds of Appeal

1. In the written submissions filed to the Court on 13 February 2020, the applicant seeks leave to amend his application such that the grounds of appeal will read as follows:

   (1) The Tribunal erred in that it failed to consider claims or reasons put forward by or on behalf of the applicant and by his mother as to why his visa should not be cancelled pursuant to s.109 of the Migration Act;

   Particulars

   (a) Failure to consider the claim that as a single mother with three children, the applicant’s mother would not be able to find work in Vietnam and support her three children;

   (b) Failure to consider the claim made by the applicant’s mother that he finds it hard to speak Vietnamese and cannot read or write in Vietnamese.

   A new Ground 2 was added, which is as follows:

   (2) The Tribunal erred in failing to find that s.98 of the Migration Act was not engaged in the applicant’s case in that the application form completed by the applicant’s mother, and found to have incorrect information therein was not completed on the applicant’s behalf.

2. In written submissions filed on behalf of the respondents, the first respondent did not oppose leave being granted to rely upon the new grounds. Accordingly, leave was granted to rely upon the amended grounds.

The Applicant’s Submissions

1. In relation to Ground 1, it was submitted that the Tribunal was required to assess in a real and active way the evidence and submissions and material before it. Whilst the Tribunal discussed at some length certain matters raised in the evidence and submissions, it omitted from its decision that the applicant’s mother would not be able to find full-time work in Vietnam and take care of her three children at the same time. Nor did the Tribunal specifically deal with the applicant’s claim that he has trouble speaking Vietnamese and cannot read or write in the language. It was submitted that in failing to consider those claims, this amounted to jurisdictional error.

2. In relation to Ground 2, it was submitted that the application by the mother in September 2010 was on her behalf and did not include the current applicant. The result, it is submitted, is that the applicant was not part of the mother’s visa application and therefore the application was not filled on his behalf. As a result, s.98 of the Act does not apply with the result that the alleged sins of the mother cannot be visited upon him.

3. It was submitted to the Court that s.98 of the Act is, in fact, temporal. It is alleged that as s.98 of the Act does not apply to the applicant, he cannot be said to have given false or incorrect information in his mother’s application.

The First Respondent’s Submissions

1. The first respondent submitted that the decision of the Tribunal must be read as a whole and there is no requirement for the Tribunal to refer to every piece of evidence and every contention made by the applicant (see Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at [46] (“WAEE”)). Further, the Tribunal’s obligations under s 368 of the Act is to prepare a statement of reasons. It does not require the Tribunal to identify or discuss each item of evidence to which it had regard (see Minister for Immigration and Multicultural Affairs v Yusuf (2011) 206 CLR 323 at [346]).

2. It was submitted that it has been recognised there is a need to exercise caution in relation to the use of the expression “proper, genuine and realistic consideration” because there is a danger that they may draw the Court into impermissible merits review (see Minister for Immigration and Border Protection v Lium [2019] FCA 1850 at [38]).

3. The first respondent submits that in considering the claims regarding the family unit, family unity principles, the best interests of the child and the hardships to the mother and her family, the Tribunal accepted at paragraph 55 of its decision there, would be some degree of hardship.

4. At paragraph 53, the Tribunal accepted that the applicant had lived in Vietnam and that his father and grandparents lived in Vietnam, so he would have some family support. The first respondent submits this answers the claim that as a single mother, the applicant’s mother would find it difficult to work and raise her children at the same time. It was submitted that the claims made in the statutory declaration which was relied upon were subsumed by the Tribunal’s findings of greater generality (see WAEE at [47]).

5. In relation to the claim that the applicant finds it hard to speak Vietnamese and he cannot read or write in Vietnamese, the first respondent submitted that the Tribunal’s findings that the applicant has spent time in Vietnam and would be “familiar with life in Vietnam and would have developed some language skills” and may well be used to life in Vietnam. The first respondent also submitted that at his young age, the applicant will have no difficulty in adapting to a new country, particularly as he lived in Vietnam until 2011, are findings of greater generality that subsume the claim the applicant states that he would find it difficult to speak Vietnamese and cannot read or write Vietnamese.

6. As to Ground 2, this asserts that the Tribunal erred in failing to find that s.98 of the Act was not engaged in the applicant’s case in that the application form was completed by the applicant’s mother and was subsequently found to have incorrect information. It was submitted that at its highest point, the applicant’s submission is that because he was not initially included in his mother’s application, s.98 of the Act does not apply to him. The applicant does not appear to dispute that he was granted a partner visa on 25 October 2012.

7. This partner visa must have been made by the applicant or more properly on his behalf. There was no evidence before the Court that the applicant had made an independent application for a partner visa, bearing in mind he was at a very young age at the time. As such, whilst the applicant was not initially included in his mother’s application, s.98 of the Act squarely applies to the applicant’s circumstances because the visa application was made on his behalf.

8. It was further submitted that if the applicant’s submissions were correct, it would create a curious situation where although the grant of a visa to a dependent, where a dependent visa application was based on incorrect information, the subsequent visa cannot be cancelled on the basis that the incorrect information was made by the original applicant and that the applicant in this case was not included at the time of lodgement. It is submitted that the applicant’s submissions are trying to subvert the statutory intention of s.107A of the Act and that the provision of incorrect information may result in the cancellation of a visa, even if the incorrect information was given at a different point in time.

Consideration

1. The first ground boils down to whether or not the Tribunal gave proper consideration to the claims of hardship in relation to the applicant and her children should she be returned to Vietnam and in particular her eldest son. It is to be noted that the two younger siblings of the applicant are Australian citizens. Counsel for the applicant properly conceded that grounds existed for the cancellation of the mother’s visa. In relation to the first particular, I am satisfied that the Tribunal did consider the claim that as a single mother with three children she would find it difficult to work and look after her three children. This, of course then impacted on the applicant in this case.

2. The Tribunal went into considerable detail in considering the issues in relation to the best interests of the children and family unity principles. The Tribunal found, in particular, that this applicant would be reunited with his father, who is currently living in Vietnam. The Tribunal noted that each of the three children and this applicant in particular had spent time in Vietnam. The Tribunal specifically found that all of the three children, including this applicant, would have no difficulty in adapting to a new country particularly as all three had already lived in Vietnam.

3. It is not the role of the Court to engage in merits review. The Court can only quash a decision of the Tribunal if it finds there has been jurisdictional error. I am not satisfied there is evidence before me that the Tribunal failed to engage in a proper, genuine and realistic consideration of the issue that has been raised. I am not satisfied that this matter falls within the exception in WAEE and also in the case of Minister for Immigration and Citizenship vSZMTS (2010) 240 CLR 611, which was referred to the Court. I do not consider that the failure to raise this particular matter was dispositive of the issue and that had it been raised, it may have realistically caused a different outcome.

4. In relation to the second particular of Ground 1, it is submitted that the Tribunal was specifically required to take account of the fact that the applicant finds it hard to speak Vietnamese and cannot read or write in Vietnamese. It was submitted by Counsel for the applicant that the Tribunal was specifically required to consider this because it went directly to the ability of the applicant to adapt and live in Vietnam in his teenage years.

5. The Tribunal made specific findings that all three children, including the applicant, had spent time in Vietnam and would be familiar with life in Vietnam and would have developed some language skills and may well be used to living in Vietnam. Again, I am not satisfied that the Tribunal disregarded the claim that the applicant was not fluent either orally or in particular in writing in Vietnamese.

6. Whilst this would be a challenge to the applicant and the Tribunal acknowledged that, it is clear to me that the Tribunal did consider this but came to a conclusion that there would be a corresponding advantage of him living in Vietnam in that it would enable him to be in contact with both his parents, specifically his father. In these circumstances, I am satisfied that the Tribunal did consider the claim and, again, if anything, this ground invites the Court to engage in impermissible merits review. Accordingly, Ground 1 fails.

7. The second ground contends that the Tribunal erred in failing to find that s.98 of the Act was not engaged in the applicant’s case, in that the application form was completed by the applicant’s mother and found to have incorrect information by him. It is not in dispute that the application was not completed by the applicant. Section 98 of the Act reads as follows:

   A non-citizen who does not fill in some of his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf (emphasis added).

1. In my view, the complete answer to the applicant’s contention is that the latter half of the section contemplates a circumstance where an application may be filled in otherwise than by the applicant. In this case, the application for the partner visa was filled in by the applicant’s mother. There is no suggestion the applicant actively partook in the process. I am satisfied that the words “otherwise filled in on his or her behalf” mean that the first respondent is able to rely upon the original application.

2. As the applicant’s application was dependent upon his mother’s application for her to have a valid visa, I am satisfied that a decision to cancel her original visa or subsequent visa, based on the fact that she provided, as is conceded, incorrect information, has the necessary knock-on effect to the applicant’s visa. I agree with the first respondent that the statutory intention in s.107A of the Act is that the provision of incorrect information in one visa may result in the cancellation of a subsequent visa even if the incorrect information was given at a different point of time.

Conclusion

1. Accordingly, no jurisdictional error is made out and the application is dismissed.

2. The Court notes, however, that as a result of this decision, the applicant’s mother and the applicant will most likely be forced to return to Vietnam. Also returning to Vietnam will be one of the applicant’s younger siblings, who is an Australian citizen. The applicant’s youngest sibling is already in Vietnam. The result of this decision is that two Australian citizens will be forced to reside in a country outside their country of citizenship until such time as they may be able to return.

3. There is also a suggestion that they may be required to give up Australian citizenship because Vietnam does not allow dual citizenship. There is no suggestion that there was any fault committed by this applicant and the issues raised result to the conduct of the applicant’s mother. The Tribunal’s decision was made in 2017. That is some two years ago. The applicant is now some 14 years of age and has been further embedded into the Australian way of life.

4. The applicant’s capacity to successfully relocate to Vietnam with a lack of oral and written and reading fluency in the Vietnamese language has been compounded by the delay in this matter being dealt with by both the Tribunal and the Court. Again, this is not a matter which is attributable to him. Rather, it is reflective of the significant delays in dealing with migration matters within the Tribunal and this Court. This young man has committed no fault. Any fault relates to the conduct of his mother.

5. Whilst the Court has found there is no jurisdictional error in the Tribunal’s decision, the particular circumstances of this case may well be such that there are good grounds for Ministerial Intervention. This young man will find, because of the effluxion of time, it even more difficult to go back to Vietnam as a 14 year old. The applicant may be able to turn in and pick them up, but his deficit in oral and written skills will be particularly difficult to enable him to successfully complete education.

6. Education is paramount to being able to find work, and he will need to have good education in order to find work. The applicant may have enormous difficulties in Vietnam should he be returned at his current age. As I said, he is not a young child. Younger children can find it easier to pick up language skills. At 14, the applicant is now well-embedded and it is English that is his main language as I understand it.

7. Accordingly, I simply make those notes. It is a matter for the Minister. It is not a matter for this Court.

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Judge Humphreys

Associate:  

Date:  11 March 2020