FEDERAL CIRCUIT COURT OF AUSTRALIA
| THAI v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 389 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of partner visas – Tribunal not satisfied that the couple were in a genuine spousal relationship – whether the Tribunal complied with its statutory procedural fairness obligations considered – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.5F, 359, 359A, 359AA, 360, 424A, 425, 476 |
| Applicant: | NGOC MINH THAI |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2137 of 2018 |
| Judgment of: | Judge Driver |
| Hearing date: | 24 February 2020 |
| Delivered at: | Sydney |
| Delivered on: | 23 March 2020 |
REPRESENTATION
| Counsel for the Applicant: | Ms U Okereke-Fisher |
| Solicitors for the Applicant: | Independence Lawyers |
| Solicitors for the Respondents: | Ms A Wong of Mills Oakley |
ORDERS
The application as amended on 16 November 2018 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2137 of 2018
| NGOC MINH THAI |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant, Mr Thai, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 5 July 2018. The Tribunal affirmed decisions made by a delegate of the Minister (delegate) not to grant three visa applicants provisional partner visas. The visa applicants were the wife of Mr Thai and her two children.
The following statement of background facts is derived from submissions filed on behalf of the Minister on 17 February 2020.
The primary visa applicant, Mrs Pham Thuy Trang Huynh (the visa applicant), a female citizen of Vietnam, applied for a partner (subclass 309) visa and partner (subclass 100) visa on 30 December 2015.[1] She applied for the visa on the basis of her relationship with an Australian permanent resident, Mr Thai, the applicant in these proceedings.[2]
[1] Court Book (CB) 1-21
[2] CB 60-70
On 20 June 2016, the…
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Details
- Case
- [2020] FCCA 389
- Decision Date
CaseChat Overview and Summary
This matter concerned an appeal by Mr Thai against a decision by the Minister for Immigration to refuse his partner visas. The Administrative Appeals Tribunal had affirmed this refusal, finding that the couple were not in a genuine spousal relationship. The central dispute revolved around whether the Tribunal had complied with its statutory procedural fairness obligations when considering the information before it.
The primary legal issue before the court was whether the Tribunal had provided Mr Thai with "clear particulars" of any information that would form part of the reason for affirming the decision to refuse the visas, as required by the relevant migration legislation. This involved determining the specificity required in the particulars provided and how the character of the information influenced the Tribunal's obligation to explain its relevance.
The court considered the principles established in *SZBYR v Minister for Immigration*, which indicated that information provided under the relevant section must contain a rejection, denial, or undermining of the applicant's claims, and that the criterion for providing such information is determined independently of the Tribunal's reasoning process. Mr Thai argued that the Tribunal had failed to provide particulars with sufficient specificity, particularly concerning adverse inferences drawn from his travel history to Vietnam and inconsistencies in the couple's statements. The court noted that the degree of clarity in the particulars provided could influence the extent of exposition needed to convey the information's relevance.
The court found no jurisdictional error on the part of the Tribunal.
The primary legal issue before the court was whether the Tribunal had provided Mr Thai with "clear particulars" of any information that would form part of the reason for affirming the decision to refuse the visas, as required by the relevant migration legislation. This involved determining the specificity required in the particulars provided and how the character of the information influenced the Tribunal's obligation to explain its relevance.
The court considered the principles established in *SZBYR v Minister for Immigration*, which indicated that information provided under the relevant section must contain a rejection, denial, or undermining of the applicant's claims, and that the criterion for providing such information is determined independently of the Tribunal's reasoning process. Mr Thai argued that the Tribunal had failed to provide particulars with sufficient specificity, particularly concerning adverse inferences drawn from his travel history to Vietnam and inconsistencies in the couple's statements. The court noted that the degree of clarity in the particulars provided could influence the extent of exposition needed to convey the information's relevance.
The court found no jurisdictional error on the part of the Tribunal.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
In the High Court’s decision in SZBYR v Minister for Immigration,[44] the plurality suggested at [17] that material said to be information should contain in its terms “a rejection, denial or undermining” of the applicant’s claims. Furthermore, the plurality stated in SZBYR at [17]: The statutory criterion does not, for example, turn on "the reasoning process of the Tribunal,” or “the Tribunal's published reasons.” The reason for affirming the decision that is under review is a matter that depends upon the criteria for the making of that decision in the first place. The Tribunal does not operate in a statutory vacuum, and its role is dependent upon the making of administrative decisions upon criteria to be found elsewhere in the Act. The use of the future conditional tense (“would be”) rather than the indicative strongly suggests that the operation of s 424A(1)(a) is to be determined in advance - and independently - of the Tribunal's particular reasoning on the facts of the case. (counsel’s emphasis retained)[44] (2007) 235 ALR 609 From lines 5-30 of the transcript,[45] it would appear that Mr Thai accepted that the information in the Movement Records was correct and he had in fact visited Vietnam on three occasions in 2017. Consequently, the Tribunal is said to have drawn an adverse inference from the change in Mr Thai’s response and made adverse findings against him, stating:[46]The Tribunal found that the Sponsor was of the view that he had travelled to Vietnam once or twice in 2016 and once in 2017 and the parties had lived together during his visits. [45] CB 355[46] CB 397 Subsequently, the Tribunal found that:[47]They provided inconsistent information about their time together, about where they live, about their travel, about future financial arrangements and about the financial support for the sponsor’s sons. These inconsistencies led the Tribunal to find that the parties’ evidence is not indicative of a couple who provide support and companionship for each other or see their relationship as long term. [47] CB 397 at [20] Mr Thai submits that the question is not whether the Tribunal provided particulars of the information available to it, but whether it has provided clear particulars of any information that the Tribunal “considers would be the reason, or a part of the reason for affirming the decision that is under review”.[48]The provision of clear particulars requires that the information must be provided with sufficient specificity.[49] As Flick J stated in SZMTJv Minister for Immigration (No.2)[50] at [45]:language which fails to identify information with sufficient specificity” and which fails to “unambiguously” set forth information may fail to comply with the requirement in s359A (1)(a) to provide “clear particulars” of information”. [48] Minister for Immigration v Brar [2012] FCAFC 30[49] MZXKH v Minister for Immigration [2007] FCA 663 at [20] and [27][50] (2009) 109 ALD 242 Mr Thai submits further that when considering whether clear particulars have been provided, it is necessary to consider the character of the information and the clarity with which that information has been provided. In SZMTJ at [52] in relation to s.424A(1) (which is analogous to s.359A(1)), Flick J noted as follows: Although s 424A(1) imposes the trinity of requirements set forth in paragraphs (a), (b) and (c), it is not considered that compliance with s 424A(1) is necessarily to be approached by considering each of the three requirements as though it were divorced from the rest. The greater the degree of clarity in the “particulars of any information” provided, the less may be the exposition needed to convey the relevance of that information to the review being undertaken; the greater the uncertainty in the information being provided, the greater may be the need to explain why it may be relevant. Section 424A(1)(b) remains a requirement to be satisfied; but the steps to be undertaken to discharge that requirement may well depend upon the clarity with which the information has been identified and indeed the character of that information.
Ratio Decidendi
Legal Principle Established
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