Tang v Minister for Immigration

[2018] FCCA 2047

FEDERAL CIRCUIT COURT OF AUSTRALIA

TANG v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2047

Catchwords:
MIGRATION – Administrative Appeals Tribunal ­– application for a Partner (Temporary) (Class UK) visa – whether the Tribunal failed to provide clear particulars for its decision to affirm the decision under review – whether the Tribunal failed to put clear particulars of the information covered by the s 375A certificate – no jurisdictional error made out – amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.359AA, 360, 375A, 476

Migration Regulations 1994 (Cth), cl 820.211

Applicant: XUAN TUAN TANG

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2779 of 2017

Judgment of: Judge Street

Hearing date: 26 July 2018

Date of Last Submission: 26 July 2018

Delivered at: Sydney

Delivered on: 26 July 2018

REPRESENTATION

Counsel for the Applicant: Ms U Okereke-Fisher
Direct Basis

Solicitors for the Respondents: Mr A Keevers
Sparke Helmore

ORDERS

1. Grant leave to the applicant to rely upon the amended application filed 16 July 2018.

2. The amended application is dismissed.

3. The applicant pay the first respondent’s costs fixed in the amount of $7,328.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2779 of 2017

XUAN TUAN TANG

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 9 August 2017 affirming a decision of the delegate not to grant the applicant a Partner (Temporary) (Class UK) visa.

2. The applicant was found to be a citizen of Vietnam who first arrived in Australia on 31 October 2008 as the holder of a Tourist (subclass 676) visa. That visa ceased on 31 January 2009 and was the last substantive visa that the applicant held. The applicant then became an unlawful non‑citizen for a period of four years and nine months and 20 days. It was not until 21 November 2013 that the applicant was granted a bridging visa. On 22 November 2013, the applicant lodged a valid application for a Combined Partner (subclass 820/801) visa. On 28 November 2013, the bridging visa class D ceased and the bridging visa C remained in effect.

3. The applicant has been an unlawful non-citizen in Australia for a total of 4.9 years. On 17 June 2016, the delegate found the applicant failed to meet the criteria for the grant of the Partner (Temporary) (Class UK) visa.

The Tribunal

1. The applicant applied to the Tribunal for review on 22 June 2016. The applicant was invited to attend a hearing on 2 August 2017. The applicant appeared on that date to give evidence and present arguments. The applicant was represented by his migration agent and evidence was taken from two witnesses.

2. In the invitation letter sent to the applicant to attend the hearing, the Tribunal informed the applicant that the Tribunal was unable to make a favourable decision on the information currently before the Tribunal. The letter also indicated that the Department had issued a certificate pursuant to s 375A of the Act, which requires the Tribunal to do all things necessary to ensure that the document or information is not disclosed to any other person. A copy of the certificate was attached and the applicant was invited to provide any submissions on the validity of the certificate.

3. The Tribunal noted that at the hearing the agent stated that there was no issue raised in respect of the validity of the certificate. Because of the applicant’s last substantive visa expiring in 2009, the Tribunal identified that the criteria required the Tribunal to then consider was whether there were compelling reasons for not applying the Schedule 3 criteria. It was in that context that the Tribunal referred to having explained to the applicant at the hearing that the Tribunal would be putting information to the applicant that would be the reason or part of the reason for affirming the decision under review. The Tribunal explained to the applicant that it would explain why this information was relevant, and then invite the applicant to comment on or respond to the information and that if the applicant required more time to comment or respond to the information, the applicant could request an adjournment.

4. In direct connection with that reference in the Tribunal’s reasons, it is apparent that the Tribunal identified that the Department had received information of the relationship between the parties that it was not genuine and that the applicant had paid the sponsor to sponsor him for his application. Clear particulars of that allegation are identified as having been provided by the Tribunal in paragraphs 26 and 27. The material the subject of the certificate has in fact been tendered into evidence, submitted in exhibit B.

5. The particulars provided by the Tribunal refer first to the sponsor and her daughter’s movement record, showing that they travelled overseas for one month commencing 17 January 2012, and that the sponsor travelled overseas alone for one month and eight days, commencing 12 February 2013. The Tribunal explained that that was inconsistent with the information provided by the applicant as to when the sponsor travelled overseas, and for how much time, and indicated the sponsor was willing to be separated from the applicant and impacted on the level of dependence the sponsor may have on the applicant, which would impact on the compelling reason for not applying the Schedule 3 criteria.

6. The Tribunal also identified, raising with the applicant, that the applicant was not aware of when the sponsor had travelled, which would indicate they were not living together at the time. The applicant, in response said that he could not remember the exact time that the sponsor had travelled as he was not paying attention to it.

7. The Tribunal then referred to and provided clear particulars of the information received by the Department claiming the applicant had paid the sponsor money to enter into a sham relationship for the purpose of getting the Partner visa. The Tribunal summarises that it explained this was relevant as it indicated the parties were not in a genuine relationship. The Tribunal identified the applicant said that the sponsor’s previous partner had caused the sponsor problems in the past and was probably him who made the claim and it was not true. The Tribunal then referred to the possibility of not placing much weight on an anonymous dob-in.

8. The Tribunal, in its reasons, summarised the meaning of compelling reasons and referred to the applicant being aware that he was remaining in Australia unlawfully. The Tribunal identified that it had not made a critical assessment of whether, at the time of the application or at the time of the decision, the parties were in and continued to be in a genuine, continuing and exclusive relationship. For the purpose of considering compelling reasons, the Tribunal accepted at face value the claims made by the parties that they were and continued to be in a genuine relationship together and the circumstances of that claimed relationship for the purpose of a decision.

9. The Tribunal did refer to an issue concerning gambling and the lack of knowledge of the same by the sponsor, and that one would expect the parties to communicate about such activities if they were in a genuine relationship and that it could also impact on the degree of companionship and emotional support.

10. The Tribunal was not satisfied there is anything in the nature of the relationship between the applicant and the sponsor, including its claimed length, when considered both individually and in combination that would provide a compelling reason for not applying the Schedule 3 criteria. The Tribunal was not satisfied that there are compelling reasons for not applying the Schedule 3 criteria and found the applicant did not meet the criteria under cl 820.211(2)(d)(ii) of the Migration Regulations 1994 (Cth) (“the Regulations”) and affirmed the decision under review.

Before this Court

1. The grounds in the amended application are as follows:

   Ground 3

   Jurisdictional error – The Tribunal failed to comply with its statutory obligations under s 359A(1)(a) or s 359AA(1)(a) in that it failed to provide clear particulars of information that the Tribunal considered would be the reason or part of the reason for affirming the delegate’s decision.

   Particulars

   At [Paragraph 9, CB 330] the Department noted that it had received information that the relationship between the parties was not genuine and the sponsor had been paid by the applicant to sponsor him.

   At [Paragraph 19, CB 331] the Tribunal explained to the applicant that it would be putting information to him, which would be reason for affirming the decision under review. Subsequently, the Tribunal explained to the applicant that it would explain why this information was relevant and then invite the applicant to comment or respond to the information.

   At [Paragraph 26, CB 332] the Tribunal referred to the sponsor’s and sponsor’s daughter’s movement records which showed that they travelled overseas for one month commencing 17 January 2012 and the sponsor travelled overseas alone for one month and eight days commencing 12 February 2013.

   At [Paragraph 26, CB 333] the Tribunal advised the applicant that it had received information claiming the applicant had paid the sponsor money to enter into a sham relationship for the purpose of getting the applicant a partner visa (“Sham relationship information”).

   Ground 4

   Jurisdictional Error – The Tribunal’s decision was affected by jurisdictional error in that (i) the s 375A Certificate issued by the department did not specify a reason to justify the non-disclosure of the material in contravention of s375A(i)(a) (ii) the Applicant did not review a fair and meaningful hearing as required by s 360(1) of the Act (iv) the existence of the certificate diminished the applicant’s entitlement to participate effectively in the review in such a way that enlivened the obligation of procedural fairness.

   Particulars

   a. At paragraph 17, in the course of the review, information, which was adverse to the Applicant’s claim was provided to the Tribunal pursuant to s 375A of the Act.

   b. The existence of the certificate was incompatible with the Applicant’s interests and curtailed the nature of the hearing afforded to the Applicant such that it was not a real or meaningful hearing.

   c. The hearing was conducted on the basis of adverse information the existence of which the Applicant was unaware.

Ground 3

1. In relation to ground 3, the Court raised with Ms Okereke‑Fisher, counsel on behalf of the applicant, at the outset that there was no transcript that had been put into evidence. Ms Okereke‑Fisher sought to nonetheless establish non-compliance with s 359AA of the Act by reference to the decision of the Tribunal and the material that was before the Court and presented into evidence in exhibit B. In the absence of a transcript, ground 3 cannot succeed and for that reason alone ground 3 fails to make out any jurisdictional error.

2. It is apparent on the face of the Tribunal’s reasons that the Tribunal complied with s 359AA of the Act and the content of what is in paragraph 19, together with the content of paragraphs 26 and 27, are entirely consistent with the Tribunal complying with its obligations in that regard.

3. Ms Okereke‑Fisher sought to submit that there was other content in the material the subject of the certificate that might have been able to be particularised which, Ms Okereke‑Fisher advanced, meant there had been non-compliance with s 359A of the Act. Ms Okereke‑Fisher did so first in relation to the travel and identifying other detail that might have been obtained in relation to departure times and flights. The matters identified by Ms Okereke‑Fisher would be relevant if the obligation under s 359A and s 359AA of the Act were focused on particularising documents. That is not the focus of those provisions. The focus is only upon information that the Tribunal considers would be the reason or part of the reason for affirming the decision under review. The particulars given in the present case as referred to in the reasons, objectively considered, are clear particulars within s 359AA of the Act. There was no non-compliance with s 359AA(1)(a) of the Act on the face of the Tribunal’s reasons, either in respect of the travel information or in respect of the payment for the sham relationship.

4. Ms Okereke‑Fisher again identified that there were other details in the exhibit B material concerning the sham relationship in terms of the applicant living with someone else. Again, the fact that there are other particulars that might be cable of being extracted if the obligation was to particularise the document, does not advance the applicant’s case. I do not accept that the reference to matters such as the applicant living with someone else establishes any obligation under s 395A of the Act in the context of the clear particulars given to the applicant referred to in the Tribunal’s reasons that the applicant had paid the sponsor money to enter into a sham relationship. Clear particulars were provided by the Tribunal identifying the same and giving the applicant an opportunity to respond.

5. No breach of s 359A or s 359AA of the Act in the circumstances of the present case is established. No jurisdictional error as alleged in ground 3 is made out.

Ground 4

1. In relation to ground 4, Ms Okereke‑Fisher submitted that the Tribunal should have given particulars to the applicants of all the detail within the documents the subject of the s 359A certificate so that the applicant could have a real and meaningful hearing. Ms Okereke‑Fisher focused on the content that could be extracted from exhibit B beyond the clear particulars given by the Tribunal in paragraphs 26 and 27.

2. The reliance on s 359A of the Act in the argument does not assist the applicant given the findings the Court has just made in respect of those provisions. Further, this is a case where the applicant was on notice of the existence of the certificate as it was raised in the invitation letter to the applicant and the applicant had an opportunity to address the certificate and its validity and/or to seek further information in respect of the documents the subject of the certificate. The applicant was represented at the hearing in that regard.

3. On the face of the material before the Court, the applicant had a real and meaningful hearing. On the face of the material before the Court, the applicant was not denied a real and meaningful hearing because the applicant was not provided with further particulars in respect of the documents the subject of the certificate. There was no obligation on the Tribunal to do so given the substance of what was raised with the applicant. The applicant was on notice of the existence of the certificate and was on notice that there were documents or information the subject of the certificate.

4. Further, the applicant had the certificate. The applicant suffered no impractical justice in the conduct of the review in the present case by reasons of the certificate or the documents the subject of the certificate.

5. Further, the Court finds that the disclosure made in paragraphs 26 and 27, in relation to the movement records and in relation to the information claiming the applicant had paid the sponsor money to enter into a sham relationship for the purpose of getting the partner visa, fairly and adequately put the applicant on notice in respect of the issues and that the applicant had a real and meaningful opportunity to address the same.

6. The Tribunal’s reasons record the applicant’s response and the applicant’s response does not identify a request for further information. There was no denial of procedural fairness in the conduct of the hearing required under s 360 of the Act. No jurisdictional error as alleged in ground 4 is made out.

Conclusion

1. As the amended application fails to make out any jurisdictional error, the amended application is dismissed.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 7 September 2018