Quach v Minister for Immigration
[2020] FCCA 223
•6 February 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| QUACH & ORS v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 223 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – Partner (Temporary) (Class UK) (Subclass 820) visa – whether the Applicants met Schedule 3 Criterion of the Migration Regulations – whether compelling reasons exist to waive the Schedule 3 Criterion – no compelling reasons found to exist – no jurisdictional error established – application dismissed with costs. |
| Legislation: Migration Regulations 1994, clause 820.211(2)(d)(ii), Items 3001, 3002 and 3004 of Schedule 3 |
| Cases cited: ASB17 v Minister for Home Affairs [2019] FCAFC 38 |
| First Applicant: | THOAI LAN QUACH |
| Second Applicant: | PHUNG TAI DIEP |
| Third Applicant: | PHUNG NGUYEN DIEP |
| Fourth Applicant: | PHUNG KIM DIEP |
| Fifth Applicant: | PHUNG AN DIEP |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent | ADMINISTRATIVE APPEALS TRIBUNAL |
| File number | MLG 1227 of 2017 |
| Judgment of: | Judge Blake |
| Hearing date: | 5 December 2019 |
| Date of Last Submission: | 5 December 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 6 February 2020 |
REPRESENTATION
| Counsel for the Applicants: | Dr McBeth |
| Solicitors for the Applicants: | FCG Legal Pty Ltd |
| Counsel for the Respondents: | Mr Hosking |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
Pursuant to rule 11.11(1) of the Federal Circuit Court Rules 2001 (“the Rules”), the First Applicant be appointed as litigation guardian for the Second, Third, Fourth and Fifth Applicants.
Pursuant to rule 1.06 of the Rules, the requirement in rule 11.11(2) of the Rules for the filing of an affidavit of consent be dispensed with.
The Application filed on 9 June 2017 and amended on 14 November 2019 be dismissed.
The Applicants pay the First Respondent’s costs of the proceeding fixed in the sum of $7,467.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1227 of 2017
| THOAI LAN QUACH |
First Applicant
| PHUNG TAI DIEP |
Second Applicant
| PHUNG NGUYEN DIEP |
Third Applicant
| PHUNG KIM DIEP |
Fourth Applicant
| PHUNG AN DIEP |
Fifth Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for review of a decision made by the Administrative Appeals Tribunal (‘Tribunal’) on 12 May 2017. An oral decision and reasons were issued on the same day, and written reasons subsequently produced on 1 June 2017. In its decision, the Tribunal affirmed a decision of a delegate of the Minister not to grant the First Applicant a Partner (Temporary) (Class UK) (Subclass 820) visa (‘Visa’).
For the reasons that follow, I have decided to dismiss the application for review.
Background
The Applicants are citizens of Vietnam. The First Applicant is the primary applicant for the Visa. The Second to Fifth Applicants are dependants of the First Applicant.
The Applicants arrived in Australia on tourist visas on 16 October 2015 with the First Applicant’s then husband, Mr Kien Uy Diep. The tourist visas expired on 16 January 2016.
On 4 January 2016, the First Applicant and Mr Kien Uy Diep applied for student visas for the Second to Fifth Applicants and for student guardian visas for themselves. These applications were refused on 8 January 2016.
The Applicants then applied to the Tribunal for review of the decision to refuse the applications for student visas on 25 January 2016. This application was subsequently withdrawn on 2 August 2016.
On 2 February 2016, the First Applicant and Mr Kien Uy Diep divorced.
On 22 March 2016, the First Applicant married an Australian citizen, Mr Van Hai Tran.
On 25 June 2016, the First Applicant applied for the Visa on the basis of her relationship with Mr Tran.
At the relevant time, clause 820.211(2)(d)(ii) of the Migration Regulations 1994 (‘Regulations’) provided that a primary criterion for the grant of the Visa was that, at the time of an application, an applicant who was not the holder of a substantive visa needed to satisfy Schedule 3 Criterion 3001, 3002 and 3004, unless the Minister was satisfied that there were ‘compelling reasons’ for not applying those criterion.
At the relevant time, Item 3001 of Schedule 3 to the Regulations (‘Criterion 3001’) required that the application for the Visa be validly made within 28 days of the last day on which the applicant held a substantive visa. Given that Applicant’s last substantive visa ceased more than 28 days prior to the making of this application, this was a requirement that the First Applicant did not comply with.
On 27 October 2016, a delegate of the Minister refused to grant the Visa. The delegate found that the First Applicant did not meet Criterion 3001, and consequently could not satisfy the requirements of clause 820.211(2)(d)(ii). Further, the delegate found there were not ‘compelling reasons’ to waive the Schedule 3 requirements.
The Applicants then applied to the Tribunal for review of the delegate’s decision on 14 November 2016.
The Applicants, the First Applicant’s husband, a friend of the First Applicant and the Applicant’s migration agent attended a hearing at the Tribunal on 12 May 2017. The First Applicant was assisted by an interpreter in the Vietnamese and English languages. An oral decision was made on that day, affirming the decision of the delegate not to grant the First Applicant the Visa. Written reasons of the Tribunal’s decision dated 1 June 2017 were provided to the Applicants, via their migration agent, on 8 June 2017.
Applicable Principles
The application for review arises as a result of the determination by the Minister, affirmed by the Tribunal, that there were not ‘compelling reasons’ to waive the Schedule 3 requirements.
The Applicants submitted that the principles governing a matter such as the present one are set out in the recent judgement of five Justices of the Full Court of the Federal Court of Australia in Minister for Home Affairs v Omar [2019] FCAFC 188 (‘Omar’).
The Minister submitted that some caution should be applied in relying exclusively upon Omar as the decision arose in a different context. The Minister submitted that, in the context of reaching a decision as to whether ‘compelling reasons’ are present, the reasons must be ‘sufficiently powerful’ so as to lead the Tribunal to make a positive finding in favour of waiving the required criteria: Babicci v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 141 FCR 285 at [24]. Further, the Tribunal must engage in an active intellectual process in determining whether such compelling reasons exist: MZYPZ v Minister for Immigration and Citizenship [2012] FCA 478 at [19]. The Minister also accepted that, when engaging in this process, the Tribunal may fall into jurisdictional error if it fails to consider a ‘substantial, clearly articulated argument relying upon established facts’: Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALJR 1088.
I have reviewed the principles above. It seems to me that the principles I am required to consider, whether they are extracted from Omar or in the other decisions referred to above, are substantially similar and that there is not a practical difference between them. This was accepted by both Counsel during the hearing.
The Application for Review
The first ground in the Application for Review filed on 9 June 2017 and amended on 14 November 2019 (‘Application’) is as follows:
‘The Tribunal misunderstood or failed to give proper consideration to the applicants' claim that the welfare of the children would be jeopardised and their schooling in Australia interrupted if they were forced to return to Vietnam.’
This ground of review takes aim at paragraph [27] of the Tribunal’s decision (‘Decision’). It is convenient to set out paragraph [27] (and also paragraph [28]) of the Decision below:
‘27. Fifthly, it was argued that it would be detrimental to the children to move from Australia to Vietnam in respect to their schooling and the tribunal has had regard to statements with respect to the children succeeding in school. I refer to folio 105, with an open letter concerning the excellent results achieved by Phung Thai Diep and I see no reason why, if the intention is to bring these children to Australia in the future, a period of schooling in Australia would not benefit them in the long term, should they come in the long term. The tribunal notes that if this relationship is genuine, the Minister has to grant the application and I see no reason why that application cannot be made offshore.
28. I see this as a glaring case of persons manipulating their circumstances to try to create compelling reasons and I think it would be wrong for persons to benefit by such manipulation for the reason that it would be beneficial to the children.’
The Applicants contend that the Tribunal failed to engage with the submissions relating to the potential detriment faced by the Second to Fifth Applicants (‘children’), and that the Tribunal misunderstood or misconstrued these claims. In order to assess this submission, regard needs to be had to the particular claim that was advanced by the Applicants before the Tribunal. This claim is set out at page 205 of the Court Book and is as follows:
‘In addition, please consider the education for the children in secondary school, where they are currently very happy with the school activities and have put in good effort to create great achievements (as Evidence 4: the supporting letter from schools), therefore, please give them a favourable chance to complete their studies and grow up in a good environment to become good and successful citizens. The welfare of the applicants and children will be jeopardised if they were forced to return to Vietnam. Given the applicant’s state of affair, I find that this is a “compelling reason” to waive Schedule 2 criteria.’
In respect of the Tribunal’s treatment of this claim, the Applicant says that the reference in paragraph [27] of the Decision to the beneficial impact of a period of schooling in Australia is consistent with the Applicants’ submission that discontinuing their schooling in Australia would have a detrimental impact on the children. It is submitted that this represents a failure to engage with the key issue being the detrimental impact on the children of removing them from schools in Australia.
While I understand the Applicants’ submission, I find that the Tribunal has properly understood the claim and given it proper consideration. My reasons for so finding are as follows.
First, the Tribunal has expressly acknowledged the claim that it would be detrimental to remove the children from Australia to Vietnam in respect of their schooling. The Tribunal also acknowledged, in the first sentence of paragraph [27] of the Decision, that it had regard to statements with respect to the children succeeding in school. I accept that express recognition of a claim does not mean that the Tribunal has properly considered the claim. My view, however, is that these sentences evidence that the Tribunal clearly acknowledged and understood the claim on foot. There was not misunderstanding or misconstruction of the Applicants’ claims.
Second, I do not accept the submission of the Applicant that paragraph [27] of the Decision is the only paragraph that relates to this issue. In my view, the Tribunal’s reasons in respect of this claim also extend to paragraph [28]. The Applicant submitted that when the structure of the decision is looked at as a whole, it is only paragraph [27] of the Decision that deals with the issue of the children’s schooling. I do not accept that. A review of the Decision discloses that each of the arguments relating to compelling reasons was considered and that the reasons given by the Tribunal in respect of each claim often extended beyond one paragraph. I am further fortified in my view that paragraph [28] of the Decision forms part of the Tribunal’s reasons in relation to the issue of the children’s schooling because it specifically refers to what may be beneficial for the children.
Once it is recognised that paragraph [28] of the Decision forms part of the Tribunal’s reasons when dealing with the claim concerning the children’s schooling, other matters become apparent. Most obviously from the terms of paragraph [28] is the view of the Tribunal that the Applicants have contrived a circumstance to create ‘compelling reasons’ and that it would be wrong for such persons to benefit from that manipulation.
This links to the third aspect of this issue, which is that the Decision needs to be read as a whole and in context. As noted above, the Tribunal formed the view that the Applicants had manipulated their circumstances to create a compelling reason, and the Tribunal thought it would be wrong for the Applicants to benefit from that manipulation. This much is apparent not only from paragraph [28] of the Decision but from other comments throughout the Decision – see paragraphs [14], [15], [18], [19], and [20]. The Tribunal acknowledged in paragraph [27] that the children were succeeding in school and appeared to accept that there may be detriment to the children because it stated that it saw ‘no reason why... a period of schooling in Australia would not benefit them in the long-term’. I am of the view, however, that while the Tribunal may have accepted the detriment to the children, it was of the view that compelling reasons did not exist because the Applicants had contrived a situation in order to create ‘compelling reasons’. If support is needed for that proposition, it can be found in the email contained at page 63 of the Court Book which confirms that the four children had been withdrawn from schools in Vietnam and that it would be difficult to re-enrol them.
For the above reasons, ground one of the grounds of review must be dismissed.
Ground 2
The second ground in the Application is as follows:
‘The Tribunal's decision was based in part on a finding or reasoning that was irrational or unreasonable.
Particulars
(a) The Tribunal’s finding that the applicants’ claim to have been the victims of fraud by a migration agent in Vietnam was fabricated was based in substantial part on the reasoning that there had been a lapse of three weeks between arrival in Australia and reporting the fraud to Australian police.
(b) In the circumstances of this case and the material available to the Tribunal, the lapse of three weeks could not rationally support the conclusion that the claim was fabricated, or was legally unreasonable.
(c) Furthermore, the Tribunal's conclusion that the claim of fraud by the migration agent was fabricated was based in part on an inference that the first applicant's evidence as to the police report being submitted by a friend, Mr Chanh, was inconsistent with the documentary evidence of the police report.
(d) The latter inference was irrational in that it cannot rationally be drawn from the documentary evidence.’
The Applicant’s seek to impugn paragraph [18] of the Decision. That paragraph is as follows:
‘18. She claimed in her evidence today that she became aware of this at the airport, upon arrival to Australia. I note with the submission, a document has been provided that provides some evidence that there have been claims made about the migration fraud that led to the applicant arriving on this visa and this report was allegedly filed, according to the visa applicant, by a Mr Chanh. However, the name appearing on the contact details of the complaint that was lodged to the AFP is that of her former husband, Mr Diep. – this document appears at folios 96 to 95 of the tribunal file. I note the document, is dated 5 November 2015. It is some three weeks, at least, after the applicant arrived in Australia, which leads me to questions about why it would be submitted three weeks after arriving in Australia, when the contents of the complaint indicate, as did the evidence of the applicant, that the supposed fraud was discovered upon arrival to Australia on 27 October. The question arises as to why, if this is true, a person would wait three weeks to submit this complaint and the tribunal suspects very strongly, that this internet application was made to coincide with the story of the parties, that they unwittingly travelled on temporary tourist visas.’
The finding against the Applicants is that their claim to be victims of a fraud was fabricated. The Applicants say such a finding is irrational or unreasonable for two reasons. I deal with each of these below.
The first reason relates to the comments in paragraph [18] regarding the report ‘allegedly filed’ by Mr Chanh, and in particular the Tribunal’s remark that ‘the name appearing on the contact details of the complaint that was lodged to the AFP is that of her former husband, Mr Diep’. The Applicant says that the Tribunal considered, wrongly, that there was a discrepancy between the First Applicant’s evidence as to who lodged the police report and the text of the report.
The Minister appropriately (when one has regard to the material before the Tribunal) accepted during the hearing that there was no such discrepancy as found by the Tribunal. The Minister’s contention (coupled with the Minister’s further contentions below) was, however, that this aspect of the Tribunal’s reasons was not critical to the Tribunal’s reasoning in respect of the credibility of the First Applicant.
The second complaint made by the Applicant is that the finding made by the Tribunal, that the claim of fraud on behalf of the Applicants’ migration agent was ‘fabricated’, rests in substantial part on the Tribunal’s observations that there had been a lapse of three weeks between arrival in Australia and reporting the fraud to the police. It is argued that the lapse of three weeks could not rationally support the conclusion that the claim was fabricated and also that such findings were legally unreasonable. Counsel for the Applicants argued that a lapse of three weeks is not irrational or unreasonable when one considers that the Tribunal was apprised of the fact that the Applicants were new arrivals, spoke little English, had difficulty navigating the legal system in a new country, and only became aware of the fraud upon their arrival in Australia. It is said that the Tribunal, in these circumstances, would have known that the Applicants needed help to lodge a complaint. Notwithstanding that, the lapse of three weeks formed the substantial basis for the Tribunal’s finding that the claim was fabricated.
The Minister accepts that the finding in relation to the delay in reporting the fraud did play a role in the Tribunal’s reasons. The Minister’s answer to the submissions are, however, as follows. The claims of the Applicants were rejected on credibility grounds. The threshold required to be met to overturn findings of credibility is a high one. The finding was open to the Tribunal, particularly when considered together with other matters that led the Tribunal to doubt the credibility of the Applicants’ claims.
In CQG v Minister for Immigration and Border Protection (2016) 253 FCR 496 (‘CQG15’), a Full Court of the Federal Court of Australia considered the principles relating to reviews on credibility findings. The Full Court noted at [59], the often quoted statement of the High Court of Australia in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611(‘SZMDS’) where Crennan and Bell JJ stated that:
‘…if reasonable minds could differ as to the conclusions to be drawn from the evidence, illogicality or irrationality or unreasonableness could not arrive simply because one conclusion had been preferred to another possible conclusion.’
Secondly, the Full Court at [60] in CQG15 referred to Wigney J’s collection of the relevant principles in Minister for Immigration and Border Protection v SZUXN [2016] FCA 516 (‘SZUXN’), as were set out in his Honour’s judgment at paragraphs [52] to [56]. Those principles are relevant in the present matter. Also apposite in the present dispute is Wigney J’s statements in relation to jurisdictional error in respect of credit findings. At paragraph [56], Wigney J stated that:
‘Considerable caution must, however, be exercised before too readily acceding to a proposition that adverse findings as to credit expose jurisdictional error: SZVAP v Minister for Immigration and Border Protection (2015) 233 FCR 541 at 455-456 [14]-[15]. That is because assertions of illogicality and irrationality can all too readily be used to conceal what is in truth simply an attack on the merits of the Tribunal’s findings and decision. In SZMDS, Crennan and Bell JJ (at 636 [96]) made plain that the deployment of illogicality or irrationality to achieve merits review should not be sanctioned.’
There is then the decision of the Full Court in ASB17 v Minister for Home Affairs [2019] FCAFC 38 (‘ASB17’). In that case, the Authority had before it letters, and also statements, of the appellant. The Full Court noted that it would have been a rational approach for a decision maker to find, in the context of that case, that the differences between the appellant’s account and the content of letters were explicable. The Full Court noted, however, that the Authority instead preferred to see the letters as incompatible with the appellant’s previous descriptions. The Full Court noted that it may have been the case that the Authority showed little understanding of the predicament that the appellant found himself in. Notwithstanding that observation, however, the Full Court was not persuaded that the IAA’s approach was irrational. The Full Court stated at paragraph [62]:
‘It was not beyond the bounds of reason for the Authority to take such a view, even if it showed little insight into the appellant’s situation. Nor do we consider it was a view that no decision-maker, acting reasonably, could have reached. It might not be the view most reasonable decision-makers would reach looking at the appellants circumstances, but we are not prepared to characterise the finding as void of any intelligible justification.’ (emphasis in original)
Turning to the present matter, and dealing firstly with the identity of the person who made the police report, I find that that the error made by the Tribunal in relation to the identity of the police complainant was not critical to the Tribunal’s reasoning about the First Applicant’s credibility. The facts about the report are set out in paragraph [18]. However, having been set out, the matter is not taken any further. There is no subsequent discussion about it.
There is then the delay in reporting the matter to the AFP. This plainly was a matter that featured in the Tribunal’s reasoning. At first blush, it is possible that another decision-maker looking at this fact may have reached a different conclusion. It would certainly be open to a differently constituted decision-maker to conclude that, in all the circumstances, a delay of three weeks in reporting the matter was not inordinate.
Unfortunately for the Applicants, however, there are two difficulties with this submission. First, having regard to the authorities I have cited above, it is not enough for the Applicants to show simply that a different decision-maker would have reached a different conclusion. As the High Court stated in SZMDS, simply because one conclusion has been preferred to another possible conclusion does not give rise to illogicality, irrationality or unreasonableness. Here, the conclusion reached by the Tribunal was open to it. It may be, as the Full Court stated in ASB17 that the view reached by the Tribunal was not the view most reasonable decision-makers would reach, but, like the Full Court, I do not in the circumstances of this case regard the finding made by the Tribunal as ‘devoid of any intelligible justification’.
The other aspect of this issue is that the finding in respect of the three-week delay which the Tribunal reported as casting doubt on the credibility of the Applicants’ claim has clearly been considered together with a range of other matters that led the Tribunal to doubt the credibility of the Applicants’ claims. One was the timing of events, the substance of which I have recorded earlier in this decision at paragraphs [3] to [9]. The other matters are those matters that are relevantly recorded in paragraph [19] of the Decision, which is as follows:
‘19. I also note that the applicant’s ex-husband, who submitted the complaint, recorded his address as 3 Palmer Street, Braybrook, which is the same address that the visa applicant claims to have stayed in upon arrival in Australia. Whereas, the applicant’s evidence before the tribunal today was that she left the airport with her ex-husband and four children in a taxi and by chance, by luck they passed Cindy [a friend of the primary visa applicant’s mother] walking down the street. This is a person that the applicant claims she knew [before coming to Australia] and she offered the whole family refuge and accommodation in her house. She claims she and the four children took up that offer and stayed at that house and that her ex-husband left [straight away] and rarely returned. Hence, it is interesting that I note that some three weeks later, he was still using this address for the internet submission [made] to the AFP.’
In my view, if the three-week delay in reporting the fraud to the AFP had been the only matter upon which the AFP had based its credibility findings, the Tribunal’s decision may well have been illogical, irrational or unreasonable. That however is not the case here. There were plainly other factors that featured, of which the three-week delay was but one.
For all of the above reasons, ground two of the grounds of review must be dismissed. This means that the Application must also be dismissed.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge Blake
Associate:
Date: 6 February 2020
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Statutory Construction
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