Thach v Minister for Immigration

[2018] FCCA 2638

FEDERAL CIRCUIT COURT OF AUSTRALIA

THACH v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2638

Catchwords:
MIGRATION – Partner (Provisional) (Class UF) visa application – review of decision of Administrative Appeals Tribunal – whether the Tribunal erred in failing to consider evidence – whether the Tribunal erred in its consideration of sub-reg.1.15A(3)(c)(ii) of the Migration Regulations 1994 (Cth) – whether the Tribunal erred in failing to make findings – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5F, 368

Migration Regulations 1994 (Cth), cl.309.211 of sch.2; reg.1.15A

Cases cited:

Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 236 FCR 593

Fang Wang v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1044
He v Minister for Immigration & Border Protection (2017) 255 FCR 41

Minister for Immigration & Border Protection v SZSRS (2014) 309 ALR 67
Minister for Immigration & Citizenship v MZYTS (2013) 230 FCR 431
Minister for Immigration & Citizenship v SZRKT (2013) 212 FCR 99
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323

Applicant: LOI THACH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2606 of 2017

Judgment of: Judge Smith

Hearing date: 14 May 2018

Date of Last Submission: 14 May 2018

Delivered at: Sydney

Delivered on: 8 November 2018

REPRESENTATION

Counsel for the Applicant: Mr L Karp

Solicitors for the Applicant: Vinh Duong & Associates

Counsel for the Respondents: Mr N Swann

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2606 of 2017

LOI THACH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal made on 8 July 2017.  The Tribunal affirmed a decision of a delegate of the Minister to refuse to grant Partner (Provisional) (Class UF) visas to Ms Thi Nuoi To and her two adult sons.  Ms To applied for the partner visa[1] on 20 October 2015 on the basis of her marriage to the applicant in these proceedings, Mr Loi Thach.  Mr Thach was the sponsor of Ms To for the purposes of the visa.

   [1] As well as a Partner (Migrant) (Class BC) visa.

2. One of the criteria for the grant of the visas was that Ms To had to be “the spouse” of Mr Thach: cl.309.211(2) of sch.2 of the Migration Regulations 1994 (Cth). It is convenient to refer to Ms To as the visa applicant and to Mr Thach as the review applicant.

3. Section 5F of the Act provided:

   Spouse

   (1)     For the purposes of this Act, a person is the spouse of another person if, under subsection (2), the 2 persons are in a married relationship.

   (2)     For the purposes of subsection (1), persons are in a married relationship if:

   (a)     they are married to each other under a marriage that is valid for the purposes of this Act; and

   (b)     they have a mutual commitment to a shared life as husband and wife to the exclusion of all others; and

   (c) the relationship between them is genuine and continuing; and

   (d)     they:

   (i) live together; or

   (ii)     do not live separately and apart on a permanent basis.

   (3)     The regulations may make provision in relation to the determination of whether one or more of the conditions in paragraphs (2)(a), (b), (c) and (d) exist.  The regulations may make different provision in relation to the determination for different purposes whether one or more of those conditions exist.

   ...

   (Emphasis in original)

4. Regulation 1.15A makes provision in accordance with s.5F(3) of the Act. It provides:

   Spouse

   (1)     For subsection 5F(3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5F(2)(a), (b), (c) and (d) of the Act exist.

   (2)     If the Minister is considering an application for:

   (a)     …

   (b)     a Partner (Provisional) (Class UF) visa; or

   …

   the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).

   (3)     The matters for subregulation (2) are:

   (a)     the financial aspects of the relationship, including:

   (i) any joint ownership of real estate or other major assets; and

   (ii)     any joint liabilities; and

   (iii)    the extent of any pooling of financial resources, especially in relation to major financial commitments; and

   (iv)    whether one person in the relationship owes any legal obligation in respect of the other; and

   (v) the basis of any sharing of day‑to‑day household expenses; and

   (b)     the nature of the household, including:

   (i) any joint responsibility for the care and support of children; and

   (ii)     the living arrangements of the persons; and

   (iii)    any sharing of the responsibility for housework; and

   (c) the social aspects of the relationship, including:

   (i) whether the persons represent themselves to other people as being married to each other; and

   (ii)     the opinion of the persons’ friends and acquaintances about the nature of the relationship; and

   (iii)    any basis on which the persons plan and undertake joint social activities; and

   (d)     the nature of the persons’ commitment to each other, including:

   (i) the duration of the relationship; and

   (ii)     the length of time during which the persons have lived together; and

   (iii)    the degree of companionship and emotional support that the persons draw from each other; and

   (iv)    whether the persons see the relationship as a long‑term one.

   (4)     If the Minister is considering an application for a visa of a class other than a class mentioned in subregulation (2), the Minister may consider any of the circumstances mentioned in subregulation (3).

5. On 15 September 2016, a delegate of the Minister made a decision to refuse to grant visas to the visa applicant and her sons.  While the delegate accepted that the visa applicant and review applicant were legally married, the delegate did not accept that they were in a genuine and continuing spousal relationship, essentially because there was very little evidence about that relationship.  The review applicant, as the sponsor, applied to the Tribunal for review of the delegate’s decision. 

6. On 30 June 2017, the solicitors and migration agents acting for the review applicant sent to the Tribunal a number of documents including:

   a)a statutory declaration of the review applicant dated 22 June 2017;

   b)a statutory declaration in Form 888 made by the visa applicant’s older sister, Ms Thi Muoi To dated 25 May 2017;

   c)a statutory declaration in Form 888 by the visa applicant’s younger sister, Ms Thi Diep To dated 20 May 2017;

   d)a number of statements by people who attended the wedding of the visa applicant and the review applicant;

   e)some medical reports;

   f)a hotel receipt;

   g)permits;

   h)money transfers;

   i)telephone bills; and

   j)a number of photographs.

7. The Tribunal conducted a hearing on 7 July 2017.  Shortly prior to the hearing, the solicitors and migration agents acting for the review applicant forwarded to the Tribunal some further documents including the following:

   a)a statutory declaration by the review applicant’s son, Teo Thach dated 3 July 2017;

   b)an undated statutory declaration by Truc Thach, the review applicant’s daughter;

   c)a telephone bill; and

   d)a money transfer.

8. On 8 July 2017, the Tribunal made a decision to affirm the decision of the delegate to refuse to grant the visa applicants a visa.

Tribunal’s decision

1. The Tribunal found that the visa applicant and review applicant were married to each other under a marriage that was valid for the purposes of the Act, and therefore satisfied sub-s.5F(2)(a). It then considered the other elements of the definition of spouse.

2. The Tribunal considered the nature of the relationship by reference to the matters set out in reg.1.15A(3). First, it first considered the financial aspects of the relationship. The Tribunal accepted that the visa applicant and the review applicant had had discussions about their future finances but it was not satisfied that they had made any realistic or actual plans for their financial life together in Australia. It found that there was no reliable evidence that the parties pooled financial resources in a manner commensurate with a mature married couple, or that they had made plans to do so, or that they shared day-to-day expenses.

3. The Tribunal next considered the nature of the household, including living arrangements, joint responsibility for the care and support of children and the sharing of housework. The Tribunal accepted that the review applicant had spent a substantial amount of time in Vietnam since 2014, but found that there was little other reliable evidence that he and the visa applicant lived together at those times. It was not satisfied that the visa applicant and review applicant were, at the time of the visa application or at the time of its decision, sharing a household as husband and wife, or that they jointly provided for the visa applicant’s children.

4. The Tribunal then considered the social aspects of the relationship, concluding that, whilst the parties presented as being legally married, they did not represent themselves socially as spouses in a married relationship.

5. The Tribunal then considered the nature of the commitment to each other. It rejected the claim that the parties would live together in Vietnam if the visa application was unsuccessful. The Tribunal found that the other evidence was insufficient to substantiate the claim that they provided each other with companionship, emotional support, that the visa applicant took good care of the review applicant when they live together and have a commitment to a future together as a married couple.

6. The Tribunal held concerns about the relationship between the visa applicant and review applicant and, having considered all the material before it, concluded that the visa applicant’s primary motivation for migration to Australia was to reunite with her sisters (who live in Australia) and that the marriage with the review applicant was a means to make it happen.

7. On the basis of those findings the Tribunal was not satisfied that the requirements of s.5F(2) of the Act were met at the time of the application or the time of the Tribunal’s decision. For that reason, the Tribunal found that the criteria for the grant of the visa were not satisfied and so affirmed the delegate’s decision.

Consideration

First and second grounds: failure to consider evidence

1. In his first 2 grounds the review applicant contends that the Tribunal failed to consider the statutory declarations of To Thi Diep, the visa applicant’s younger sister; Thach Teo, the review applicant’s son and Thach Truc, the review applicant’s daughter.

2. The review applicant accepted that the Tribunal expressly referred to each of those statutory declarations (see [28] and [39] of the Tribunal’s reasons for decision); however, he argued that it failed to engage with the material in them and so fell into jurisdictional error.

3. It is now well accepted that a failure by the Tribunal to consider material before it may constitute jurisdictional error and that whether it does depends upon the circumstances of the case and the nature of the material, including the cogency of the material and its place in the assessment of the applicant’s claims: Minister for Immigration & Citizenship v SZRKT (2013) 212 FCR 99 at [111]‑[112]; Minister for Immigration & Citizenship v MZYTS (2013) 230 FCR 431 at [68]‑[70]; Minister for Immigration & Border Protection v SZSRS (2014) 309 ALR 67 at [52]‑[56]. In SZRKT Robertson J explained at [111]:

   ... The fundamental question must be the importance of the material to the exercise of the Tribunal’s function and thus the seriousness of any error. ...

4. The question of whether the Tribunal has considered material turns on an analysis of its reasons for decision and the material itself. In answering this question it is important to bear in mind the extent of the Tribunal’s obligations under s.368(1) of the Act to prepare a statement of reasons for its decisions. While it may be, in light of that section, that the failure by the Tribunal to refer to a matter in its statement of reasons can support the inference that it has been overlooked (see, for example, Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 346 [69] (McHugh, Gummow and Heydon JJ)), that is not always the case, and the nature of the Tribunal as well as the findings actually made by it must be borne in mind: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 236 FCR 593 at [46]–[47].

5. Central to the Tribunal’s duty to review the delegate’s decision in this case was its obligation to consider all of the circumstances of the relationship between the visa applicant and the review applicant. Those circumstances will, to a considerable extent, depend on the material that is before the Tribunal: Fang Wang v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1044 at [7]. By operation of sub-reg.1.15A(3)(b), the circumstances that are to be considered include the nature of the household and, in particular, any joint responsibility for the care and support of children and the living arrangements of the persons.

6. The statutory declaration of To Thi Diep, the visa applicant’s younger sister, was amongst the documents sent to the Tribunal by the review applicant’s agents on 30 June 2017. Like the other statutory declarations the subject of these grounds, it was on Form 888 entitled “Statutory declaration by a supporting witness in relation to a Partner or Prospective Marriage visa application”.  In her declaration, the visa applicant’s sister, who lived in Sydney, Australia, gave her reasons for her belief that the relationship of the visa applicant and the review applicant was genuine and continuing (without correction):

   …

   In Vietnam, I lived with my siblings and their family in Tay Ninh’s province. I first heard of my Thach Loi through my sister in Australia To Thi Muoi in or about 2013, when she advise that Thach Loi will be delivering presents on her behalf.

   I then saw Thach Loi when he attended our home in mid 2013 to hand presents from Muoi. Later, Loi and my sister, Nuoi, then became acquainted and I saw them going out each other.

   Nuoi then told me that she and Loi continue to contact each other. Their relationship became serious and he visited her in October 2014. When they decided to marry they told me and I congratulated them. On their wedding day, I helped them with the organising and represented my sister’s family at her wedding.

   Their wedding had the blessing of our families in which they announced to everyone in our families, friends and neighbours that they were husband and wife.

   After their wedding, I saw that Thach Loi lives with my sister. I see her cooking for him and he helps with the heavy household chores such as carrying heavy things for her as well as brooming the floor. I also see them doing their groceries shopping together and that Thach Loi carry their grocery bags.

   I see Nuoi caring for Loi by massaging his legs and giving him medicine to take when he has headaches.

   I also dined out with them and also my nephews. When I go out with them I see my sister introduced Loi to her friends as her husband. I also see them giving money to each other to pay for their expenses.

   I believe that they represent themselves to their families and friends as husband and wife.

   I believe that they view their relationship as a long term one.

7. The Tribunal addressed this evidence at [28] of its reasons. Before doing so, it noted, at [27], that there was little reliable evidence that the parties had cohabited in Vietnam since 2014. It then said:

   [28]  Although some form 888 statutory declarations and written statements were provided by friends and family of the parties, none give first-hand accounts of the parties sharing a household and what their household arrangements were when the review applicant was in Vietnam from 2014 through to the time of the this decision. Although the Tribunal notes that the younger sister of the visa applicant who gave oral evidence at the hearing, said she saw them together often, there is no reliable evidence to support this and whilst it is accepted that she saw the parties together, as there was no reason to think she was not being truthful, her statements about the parties are relied on to confirm that she is aware they are married, she attended their wedding, but not that the relationship is one of spouses in a married relationship.

8. The Tribunal also referred, at a high level, to the evidence of the “families and friends” of the applicants in considering the social aspects of the relationship ([40]) and the nature of their commitment to each other ([47]).

9. In light of the fact that the Tribunal dealt expressly with the evidence of To Thi Diep at [28], it is difficult to conclude that it somehow failed to engage with that evidence.

10. The highest that the review applicant’s argument goes is that Ms Diep’s evidence included that she had seen the visa applicant massage the review applicant’s legs and cook for him and had seen them shopping together. It is true that those matters were relevant and significant to the issues to be considered by the Tribunal; however, given that the evidence was not very detailed, was very short, expressly referred to and was dealt with at least at a high level by the Tribunal, leads me to conclude that the Tribunal accepted Ms Diep’s evidence, but found that what she saw did not satisfy it that there was a genuine relationship between the parties. In other words, the Tribunal engaged in active mental consideration of the evidence and the first ground must be rejected.

11. The review applicant also argues that the Tribunal failed to consider the following evidence:

    a)the evidence of the review applicant’s son that he had not met the visa applicant but had spoken to her on the phone, that his father had travelled to Vietnam several times to be with her, that when they were apart the review applicant would call the visa applicant frequently,  the review applicant was devastated when the visa had been refused and had been miserable ever since; and

    b)the evidence of the review applicant’s daughter that the review applicant had told her of the marriage, that he had known the visa applicant for a long time and that she had spoken to the visa applicant on the phone.

12. The review applicant accepts that the Tribunal expressly referred to this evidence but argued that its reasons show that it was in fact oblivious to the full extent of the evidence. I do not accept that argument. The Tribunal did more than refer to this evidence in passing, it assessed that evidence and came to a view about it based on that assessment. The relevant passage in its reasons is [39]:

    The children of the review applicant have provided statements saying they are aware of the marriage and that they consider their father is very happy with the visa applicant. Neither have met the visa applicant in person or socialised with the parties together. The review applicant’s son said he sometimes speaks to her on the phone and his daughter has only spoken to her once, in 2015. The Tribunal does not consider that they can reliably say that the marriage is genuine. The review applicant’s daughter says in her statement that her father is financially independent and will be able to look after Nuoi financially, which the Tribunal considers, on the financial evidence provided by the parties, not to be the case. He receives a pension of $1,000 a week and owns no assets, which is not, in the view of the Tribunal evidence that he is financially independent and would be able to financially support a wife and two dependent students.

1. Although the reference to the evidence about financial independence was wrong (it was the son’s evidence, not the daughter’s), this paragraph is entirely inconsistent with the review applicant’s argument. In light of the fact that the son’s declaration was one and a half pages in length, the daughter’s was just over one page and they were sparse in detail, it would be very surprising indeed if the Tribunal had read enough of the statutory declarations to be able to write [39] of its reasons and yet be oblivious to other aspects of the declarations. The second ground is rejected.

Third ground: error in considering

1. This ground is that the Tribunal erred in its consideration of sub-reg.1.15A(3)(c)(ii)[2] by considering “whether the applicant’s witnesses could reliably say that the marriage was genuine, rather than by considering the opinions of those witnesses”. This ground seeks to make a distinction between considering an opinion and forming a view about that opinion. There is, however, no dichotomy between the two. The review applicant accepts (as he must: see for example [39], [41]) that the Tribunal formed a view about the opinions of the various witnesses but overlooks the fact that it did so as part of the process of considering those opinions. That is, as he argued in support of grounds 1 and 2, the Tribunal engaged in an active intellectual process about the opinions expressed by the various witnesses. Ground 3 is rejected.

   [2] Although the ground refers to sub-reg.1.15A(3)(c)(iii) the applicant’s arguments concerned sub-reg.1.15A(3)(c)(ii). Both concern the social aspects of the relationship but the former deals with any plans to undertake joint social activities and the latter deals with the opinions of friends and acquaintances about the relationship.

Fourth ground: failure to make findings

1. The review applicant argues in this ground that the Tribunal was obliged to, but did not, make findings about the following matters (with a reference to the provision that required the finding to be made):

   a)the living arrangements of the parties: sub-reg.1.15A(3)(b)(ii);

   b)sharing of responsibility for housework: sub-reg.1.15A(3)(b)(iii);

   c)whether the persons represent themselves to others as being married to each other: sub-reg.1.15A(3)(c)(i);

   d)the opinion of the persons’ friends and acquaintances about the nature of the relationship: sub-reg.1.15A(3)(c)(ii).

2. In support of this argument, the review applicant relies on He v Minister for Immigration & Border Protection (2017) 255 FCR 41 at [76]-[78], where the Full Court held that the obligation to “consider” the circumstances in reg.1.15A(3) required the Tribunal to make findings on each of the four matters in sub-regs.1.15A(3)(a)-(d), as well as the sub-issues listed with roman numerals.

3. In my view, the Tribunal did make such findings. First, it found, at [33], that the parties had not shared a household as husband and wife. Secondly, as the Minister submitted, this finding dealt with the second matter too, the sharing of responsibility for housework. Thirdly, the Tribunal accepted, at [42], that the parties presented themselves as being legally married, however it found that they did not represent themselves as spouses in a married relationship. Fourthly, the Tribunal found that the opinion of the families and friends of the parties was that they were married but not that they were in a genuine married relationship.

4. For those reasons, the fourth ground must also be rejected.

Conclusion

1. There is no jurisdictional error in the Tribunal’s decision. The application must be dismissed.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Smith

Date: 8 November 2018