Thi Tam Lai v Minister for Immigration
[2004] FMCA 921
•22 December 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| THI TAM LAI v MINISTER FOR IMMIGRATION | [2004] FMCA 921 |
| MIGRATION – Review of Migration Review Tribunal decision – refusal of Partner (Temporary) (Class UK) visas – no jurisdictional error – application dismissed. |
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth), reg.1.15A, Part 820 of Sch 2
Collins v Minister for Immigration [2003] FMCA 571
Minister for Immigration & Ethic Affairs v Wu Shan Liang [1996] HCA 6
R v Toohey; Ex parte Meneling Station Pty Ltd (1982) 158 CLR 327
R v Hunt; Ex parte Sean Investments Pty Ltd (1979) 25 ALR 497
Re Minister of Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
W148/00A v Minister for Immigration & Multicultural Affairs
Minister for Immigration & Multicultural & Indigenous Affairs v Collins [2003] FMCA 571
Minister for Immigration & Multicultural Affairs (2001) 206 CLR 323
Craig v State of South Australia (1995) 184 CLR 163
| Applicant: | THI TAM LAI |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG1201 of 2004 |
| Delivered on: | 22 December 2004 |
| Delivered at: | Sydney |
| Hearing date: | 30 November 2004 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
| Solicitors for the Applicant: | Mr Dan Thanh Tung Vo of Australian Legal and Migration Services |
| Counsel for the Respondent: | Mr A McInerney |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The application is dismissed.
The applicant is to pay the Minister’s costs and disbursements of and incidental to the application, fixed in the sum of $3,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1201 of 2004
| THI TAM LAI |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The proceedings
This is an application for judicial review of the decision of the Migration Review Tribunal (“the Tribunal”) made on 22 March 2004, affirming a decision of a delegate of the respondent (“the delegate”) made on 26 August 2002 to refuse the grant of Partner (Temporary) (Class UK) and Partner (Residence) (Class BS) visas to the applicant and her dependent daughter.
Background
Miss Thi Tham Lai, the primary applicant is a national of Vietnam, born on 15 March 1958 who applied for permanent residence on spouse grounds on 19 February 1999. The applicant’s daughter, Miss Kim Chi Huynh, also a national of Vietnam, born on 27 July 1981, was included in the application. The visa application completed by the applicants incorporated applications for permanent General (Residence) (Class AS) visas, which normally cannot be granted until two years have elapsed from the time of lodgement of the applications, and applications for Extended Eligibility (temporary) (Class TK) visas which can be granted immediately, to permit stay until a decision is made on the permanent visas. This process is intended to test whether the relationship between the applicant and the nominating spouse is continuing two years after the visa application, before permanent residence is confirmed (Court Book p.246) (“CB”).
The applicant entered Australia on 6 December 1998 on a subclass 676 (Tourist (Short Stay)) visa. On 13 December 1998 the applicant was granted a subclass 686 (Tourist (Long Stay)) visa whilst onshore. She did not depart Australia on the expiry of this visa on 6 May 1999, and has since held bridging visas granted on the basis of her application for a spouse visa (CB p.248).
The applicant’s daughter, Kim Chi Huynh, who is named in the application as a secondary applicant, first entered Australia on 27 May 1998 on a subclass 560 (Student) visa. She was granted a further subclass 560 visa on 26 November 1998. Miss Huynh did not depart Australia on expiry of that visa on 31 August 2000 and has since held a bridging visa permitting her stay in Australia pending the outcome of the application under review (CB p.248).
The applicant lodged an application for a spouse visa on 19 February 1999. The applicant was nominated in connection with an application by Mr Xuan Canh Nguyen (the nominator), an Australian citizen born in Vietnam on 24 July 1963. The nominator acquired Australian citizenship on 4 July 1995 as evidenced by a certified copy of his certificate of Australian citizenship held on the Department’s file (CB p.248).
The applicant indicated on the application that she had first met the nominator on 25 December 1998 at the Cabramatta Catholic Club, and that they had lived together at an address in Hinkler Avenue, Warwick Farm since 5 January 1999. The applicant’s daughter, Miss Kim Chi Huynh, also lived with them. The nominator indicated on the application resided at Meadows Road, Mt Pritchard from November 1997 to January 1999 prior to moving in with the applicant and her daughter.
The applicant and the nominator were married on 6 February 1999 in Fairfield, Sydney. A certified copy of the partner’s marriage certificate was provided in support of the visa application (CB p.28). The applicant indicated on the application that she had previously been married from 23 April 1980 to 4 January 1989 and the marriage had ended in divorce. She further indicated she had a daughter, Kim Chi Huynh (second applicant) and a son, Bao Duc Huynh, born on 19 May 1984 from that marriage. The applicant provided the Department a divorce certificate in an original and translated form, issued by the People’s Court District No. 1 of the Socialist Republic of Vietnam on 4 July 1999 in relation to the dissolution of her marriage to her first husband, Mr Huynh Dai. The Court awarded the applicant custody of her daughter, Kim Chi Huynh. The applicant’s son, Bao Duc Huynh, was placed in the custody of his grandmother, Thi Thu Chieu (CB p.249).
The delegate’s decision
On 26 August 2002 the delegate refused to grant the applicant an Extended Eligibility (Temporary) (Class TK) visa because he was not satisfied at the time of the application, or at the time of the decision, that the nominator was a spouse of the applicant as defined in Regulation 1.15A of the Migration Regulations 1994 (Cth) (“the Regulations”) (CB p.141.4). In reaching the conclusion, the delegate had regard to:
a)A home visit carried out by two officers of the respondent, on 22 July 2002, at the applicant’s notified residential address at Hinkler Avenue, Warwick Farm to confirm the existence of the claimed relationship between the nominator and the applicant (CB p.138.5); and
b)The interview with the applicant and the nominator on 23 July 2002, where they were given an opportunity to comment on the observations made by the officers of the respondent during their visit to the applicant’s house the previous day (CB p.139.5).
A summary of the observations of the Departmental officers indicated that:
c)The nominator was not present during the home visit and the applicant was not able to nominate the likely time of his arrival.
d)There was no evidence of any male clothing, shoes or documentary evidence of the nominator’s presence.
e)The absence of male clothing was explained by them “being in the wash” however there was no evidence of male clothing in the laundry.
f)There was no evidence of male shaving equipment.
g)The nominator’s passport or personal documents could not be located and the applicant did not know the nominator’s work telephone number or his mobile number.
h)The presence of two dozen sealed unopened envelopes addressed to the nominator.
The applicant and the nominator were interviewed separately at the Department’s office in Sydney on 23 July 2002. The following inconsistencies were noted:
a)The nominator was unaware of his home phone number.
b)The absence of the nominator from his home the previous day was explained as ‘working late’.
c)The nominator did not know the number of windows in the main bedroom.
d)Inconsistencies in the nominator’s books that he claimed to be reading.
e)The nominator’s explanation of the absence of personal documents was that he kept them in his car.
f)The nominator’s explanation of the absence of his clothing was that he did not wear any Western style undergarments and put on long shorts under his trousers in accordance with Vietnamese culture. There was no evidence of this.
g)The nominator’s explanation of the absence of his shoes was that they were kept in the laundry however no shoes were observed there.
h)The nominator’s explanation that the absence of his razors was that he always shaved at work.
i)When asked about his step daughter’s schooling the nominator indicated that she studied at the local school although she was attending Ultimo TAFE. The nominator could not explain the payment of school fees.
j)In respect of the unopened mail, the nominator explained it was correspondence from the bank and he could check the balance at the ATM’s. There was no explanation for the non bank correspondence.
k)There was also considerable confusion in relation to where the nominator actually met the applicant (CB pp.251-255).
The Tribunal’s findings and reasons
The findings of the Tribunal are set out in its decision as follows:
“Having regard to the legislation, policy considerations and available evidence, and in particular the considerations for a spousal relationship set out in regulation 1.15A cumulatively, the Tribunal is not satisfied that at the time of the application the parties had a mutual commitment to a shared life as husband and wife to the exclusive of all others; and is not satisfied that the relationship between them was genuine and continuing, and is not satisfied that the parties lived together or did not live separately and apart on a permanent basis. The Tribunal is not satisfied that the parties were spouses at the time of the application.” (CB p.262)
The Tribunal held a hearing on 11 February 2004. The applicant gave oral evidence. At the hearing the Tribunal indicated that it had strong doubts about the genuineness of the claimed marriage as a result of the Departmental visit on 22 July 2002 and the subsequent Department review of the parties on 23 July 2002. The Tribunal did not find the applicant’s evidence concerning the site visit and the inconsistencies of the subsequent interview of the parties compelling. The Tribunal concluded that the applicant did not meet the essential criteria for the grant of a Class UK visa.
Application for review of the Tribunal’s decision
On 28 April 2004 the applicant filed an application for review in the Federal Magistrates Court of Australia using a standard court application. Attached to the application was a social work report, a psychological report, a copy of the Tribunal’s decision, a letter from the Department of Immigration & Multicultural & Indigenous Affairs with a notice advising the refusal of a partner visa and a copy of the decision in Collins v Minister for Immigration (“Collins”), a decision of McInnis FM. The application contained no grounds or particulars. An affidavit was filed on 24 August 2004 to which was appended the applicant’s submissions, which appear to be the grounds although they are not expressed as such and are not particularised.
Relevant legislation
Regulation 1.15A of the Regulations describes the test for determining whether a person is the “spouse” of another person whether in a married or de facto relationship. Regulation 1.15A(1) provides:
“For the purpose of these Regulations, a person is a spouse of another person if the 2 persons are:
(a)in a married relationship, as described in subregulation (1A); or
(b)in a de facto relationship; as described in subregulation (2).
Regulation 1.15A(1A) provides:
Persons are in a married relationship if:
(a)they are married to each other under a marriage that is recognised as valid for the purpose of the Act; and
(b)the Minister is satisfied that:
(i)they are mutually committed to a shared life as husband and wife to the exclusion of all others; and
(ii)the relationship between them is genuine and continuing; and
(iii)they:
(A) live together; or
(B) do not live separately and apart on a permanent basis.
The criteria for subclass 820 visa, relevant to this review, is set out in subclass 820.211(2), 820.221(1) and 820.221(A). One of the criteria about which the decision maker had to be satisfied was that the applicant was the spouse of the nominator at the time of the visa application.
Submissions
Mr Dan Thanh Tung Vo, Solicitor of the Australasian Legal and Migration (Pro Bono) Services appeared for the applicant. He filed written submissions on 24 August 2004 which are in effect the grounds upon which he seeks to challenge the Tribunal decision. Mr Vo filed further submissions on the day of the hearing. In the original submissions the applicant contended that the Tribunal made a jurisdictional error in that the member made an administrative decision summarily relying solely on evidence produced by the Department without considering other relevant circumstances such as:
a)The Christmas party in 1998 when the applicant first met the nominator.
b)Cohabitation with the nominator at Hinkler Avenue, Warwick Farm.
c)The Series of domestic violence.
It was submitted that the circumstances in which the applicant first met the nominator at the Christmas party in 1998 were summarised in the psychologist’s report dated 15 January 2004. The report stated that Mrs Lai first met the sponsor “at a Christmas party in 1998 at a friend’s house”. It was submitted by Mr Vo that they were partying all night including having a night barbeque and fishing at a remote place which was not known to the applicant. It was submitted that both the delegates and the Tribunal ignored this information and other incidents around the time of the Christmas party when deciding the matter.
In relation to the parties’ cohabitation, it was submitted that despite the confirmation of Mrs Phourminh, a Cambodian landlady living at Hinkler Avenue, Warwick Farm that the couple were living in the house and that their marriage relationship was true and genuine, the delegate and the Tribunal ignored such statements of fact. It was submitted that the Tribunal member did not bother to invite the landlady to the hearing as a witness and decided the matter to the detriment of the applicant.
Thirdly, in respect of the applicant’s claim of domestic violence, it was submitted that despite having conclusive evidence of domestic violence from a reputable social worker and a registered psychologist, the Tribunal ignored this issue totally. The Tribunal did not invite the expert witness to give evidence when deciding the matter and therefore denied the applicant procedural fairness and natural justice.
In the applicant’s further submissions filed in Court at the hearing, Mr Vo referred me to a number of authorities upon which he relied. The authority he believed the most helpful in his submissions was the decision of McInnis FM in Collins. This was the case that was filed with the applicant’s original application.
Counsel for the respondent, Mr McInerney, filed written submissions prior to the hearing which in summary were:
a)The Tribunal made findings of fact adverse to the claims made by the applicant.
b)The Tribunal did not accept the applicant’s evidence or documentary evidence provided to the Tribunal (CB p.262.5).
c)The finding of credibility is a finding of fact par excellence: Re Minister of Immigration & Multicultural Affairs; Ex parte Durairajasingham (“Durairajasingham”).
d)The findings of fact made by the Tribunal were open on the material before it.
e)The findings were rational and logical, having regard to the evidence obtained by the officers of the respondent at the site to the applicant’s home on 22 July 2002 and the interview carried out with the applicant and the nominator the following day.
f)The weight to be attributed to the material put forward by the applicant was a matter quintessentially for the Tribunal: Minister for Immigration & Ethnic Affairs v Wu Shan Liang at 281-282, 291-292.
Reasons
In respect of the breadth of the definition of the term “spouse” it is important to note that the scope of the Tribunal’s enquiry must be broad ranging. The definition of “spouse” in the regulation 1.15A(3) is an expansive one. The delegate and the Tribunal are required to have regard to all circumstances of the relationship including the four matters raised in regulation 1.15A(3)(a)-(d) inclusive: R v Toohey; Ex parte Meneling Station Pty Ltd per Gibbs CJ at 333, citing and approving Mason J in R v Hunt; Ex parte Sean Investments Pty Ltd. Subregulations (3)(a)-(d) of regulation 1.15A inclusive contain a list of matters that must be addressed, but those lists do not purport to be definitive. The word “including” precedes each of the four lists.
The officers of the Department were not satisfied by the evidence gathered during their visit to the applicant’s home at Warwick Farm nor with the explanations given by the applicant and the nominator on the subsequent day, that the parties met the definition of the term “spouse”. At the Tribunal hearing the member indicated that it had strong doubts about the claimed marriage as a result of the Departmental visit on 22 July 2002 and the subsequent Departmental interview of the parties on 23 July 2002. The applicant was invited to respond which she did and her explanation is summarised in the Tribunal decision (CB p.262). The Tribunal stated that it did not find the applicant’s evidence concerning the site visit and the inconsistencies in the subsequent interview of the parties compelling.
A number of these issues were raised with the applicant during the hearing and explanations sought as to these apparent anomalies in respect of the parties’ spousal relationship.
After considering the material placed before the delegate, and carrying out its own hearing, the Tribunal formed the following conclusion:
“After considering all of the evidence cumulatively, the Tribunal is not satisfied that the parties have ever lived together. The Tribunal is not satisfied the parties have ever lived together as spouses.” (CB p.262)
The Tribunal did not accept the evidence of the applicant or the documentary evidence provided to the Tribunal. This was a finding against the credibility of the applicant and the nominator. A finding of credibility is a finding of fact par excellence: Durairajasingham per McHugh J at [67]:
“This was essentially a finding as to whether the prosecutor should be believed in his claim - a finding on credibility which is a function of the primary decision maker par excellence. If the primary decision maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why the particular witness was not believed. The Tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence.”
The findings made by the Tribunal were rational and logical in regard to the evidence obtained by the officers of the Department at the site visit to the applicants’ home on 22 July 2002 and the interview carried out with the applicant and the nominator the following day. The Tribunal held a hearing on 11 February 2004 and a number of these issues the subject of the home visit and interview before the delegate were re-visited and re-examined. Although a period of 18 months had elapsed between the two series of events, the explanations given were similar in substance but they still did not support the applicant’s contention that she was in a spousal relationship with the nominator. The Tribunal indicated in the decision that its decision making process, an assessment of the issues a number of individual circumstances were raised and the explanation evaluated against that individual circumstance. The outcome of each of those individual events taken cumulatively led the Tribunal to the conclusion that the spousal relationship did not exist: W148/00A v Minister for Immigration & Multicultural Affairs per Tamberlin and R D Nicholson JJ at 67:
“Where a question of credibility is determined by a Tribunal decision, to simply assert that the Tribunal considers an applicant account to be ‘implausible’ or ‘highly unusual’ does not constitute a finding on the question raised. Such expressions are more in the nature of observations or side comments rather than findings. The reasoning process and supporting evidence that forms the basis on which a finding that evidence is rejected should be disclosed and clear findings made in direct and explicit terms. It is not sufficient simply to make a general passing comment on general impressions made by the evidence where the issue is important or significant. The findings of fact made by the Tribunal were open on the material before it.”
The relevant weight that the decision maker attributes to each piece of material put forward by the applicant is a matter that is essentially the decision maker’s: Minister for Immigration & Ethnic Affairs v Wu Shan Liang at 281-282:
“When it is remembered that the decisions for the delegates involved a question of “satisfaction” as to refugee status, the term “give greater weight to” appears even more innocuous. When it is a question of personal satisfaction, there can be nothing wrong with the attribution of weight. In that context, the attribution of weight may indicate no more than that some material has assisted the decision-maker more than other material in the ascertainment of whether the requisite satisfaction has been reached. For instance, the delegates looked at material which showed examples of the punishment of persons who had returned to the PRC. These “case examples provided by [the respondents] of illegal departees arrested on return” were put alongside other material relating to the treatment of recent returnees whose departure and activities since departure were “very similar” to those of the respondents. More “weight” was given to those closely analogous situations. In other words, the material provided by the respondents did not go very far towards satisfying the delegate that there was a real chance of persecution, because it was contradicted by more relevant material.”
And at 291 to 292:
5. The weight to be given to the material before the decision-maker is, in a case submitted to judicial review, reserved to the decision-maker so long as he or she applies the correct legal test and does not reach a conclusion which is so unreasonable as to authorise review. The decision-maker will usually have advantages over the reviewing judge in evaluating evidence and submissions. Those advantages will include the conventional ones of seeing any parties and witnesses who are heard and having time to reflect upon all of the material. But there are additional reasons for restraint and resistance to any temptation to turn a case of judicial review into, effectively, a reconsideration of the merits.”
The substantive argument made by the solicitor for the applicant was that the applicant’s case was similar to the decision in Collins. This was the main argument submitted in the written submissions and a copy of the decision in Collins was attached to the application. It was submitted by the applicant’s solicitor that the decision in Collins although determined on whether there was a genuine spousal relationship was a “primary issue” it was also “necessary for the MRT to consider the evidence of alleged domestic violence for the purpose of the Regulations”.
The applicant pointed to the reasoning of the Tribunal in the following paragraphs of its decision:
“Findings and Reasons …
72.Having regard to the legislation, policy considerations and available evidence, and in particular the considerations for a spousal relationship set out in regulation 1.15A cumulatively, the Tribunal is not satisfied that at the time of the application the parties had a mutual commitment to a shared life as husband and wife to the exclusion of all others; and is not satisfied that the relationship between them was genuine and continuing; and is not satisfied that the parties lived together or did not live separately and apart on a permanent basis. The Tribunal is not satisfied that the parties were spouses at the time of the application.
73.Given these findings, and earlier observations in respect of the other subclasses, the Tribunal has no alternative but to affirm the decision under review. The applicants do not meet the essential criteria for the grant of Class UK visas. The applicants do not meet the criteria for Class AS visas.
74.The Tribunal has therefore not gone on to assess whether the parties were spouses at the time of decision, and concerning that issue, the evidence relating to the claimed domestic violence.
DECISION
75.The Tribunal affirms the decision under review, finding that the applicants are not entitled to a grant of Extended Eligibility (Temporary) (Class TK) visas. The applicants are also not entitled to the grant of Class AS visas.”
It was the applicant’s argument that the Tribunal should have considered all the material evidence before it and avoid jurisdictional error as referred to in Minister for Immigration & Multicultural Affairs v Yusuf or Craig v State of South Australia that is “to ignore relevant material, to rely on irrelevant material or at least in some circumstances, to make an erroneous finding or to reach a mistake in conclusion”. It was submitted by the applicant’s solicitor that the Tribunal should have considered that the applicant may have been living intermittently with her husband and although they had been living in a genuine spousal relationship, the husband had serious difficulties in reconciling his marriage with his lifestyle as a gypsy who, partly due to personal and partly due to culture, was more interested in fishing, camping, living outside and showing off his domination rather than a conventional lifestyle.
It was submitted by the applicant that the circumstances in respect of her case were similar circumstances to that of Collins where the matter was remitted to the Tribunal because a significant report regarding the domestic violence that existed in that relationship was overlooked. The facts situation in this case and that of Collins are clearly distinguishable. In Collins the parties were advising the Tribunal that their domestic relationship breakdown was due to domestic violence. There was initially some problem in the filing of the appropriate reports however at the hearing before the Tribunal that problem had been rectified and the material was provided. In this case, the parties were claiming to have an ongoing spousal relationship in a shared domestic environment but the evidence collected by the Departmental officers and the subsequent interview with the parties overwhelmingly indicated that this was not the case nor had that spousal relationship existed for some considerable time. Serious doubts had been raised that a true spousal relationship ever existed.
Conclusion
The decision of the Tribunal was a bona fide attempt to exercise its power. The decision clearly relates to the subject matter of the Act and relates to the power conferred on the Tribunal. In the circumstances, I dismiss the application.
I am satisfied that an order for costs should be made in this matter.
I order the applicant to pay the respondent’s costs and disbursements of and incidental to the application.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 22 December 2004
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