TMDN v Minister for Immigration

[2020] FCCA 445

FEDERAL CIRCUIT COURT OF AUSTRALIA

TMDN v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 445

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for Subclass 155 (Five Year Resident Return) visa – whether the Tribunal erred in failing to consider claims or reasons put forward by or on behalf of the applicant and eldest son – whether the applicant failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Migration Act 1958 (Cth) – whether the Tribunal gave proper consideration to the claims of hardship – whether the Tribunal made jurisdictional error – no error made out – the application is dismissed.

Legislation:

Migration Act 1958 (Cth), ss.101, 107, 109
Migration Regulations 1994 (Cth), r.2.41

Cases cited:

Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630
Minister for Immigration and Border Protection v Lium [2019] FCA 1850
MIAC v Khadgi (2010) 190 FCR 248

Applicant: TMDN

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULUTRAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3977 of 2017

Judgment of: Judge Humphreys

Hearing date: 25 February 2020

Date of Last Submission: 25 February 2020

Delivered at: Parramatta

Delivered on: 25 February 2020

REPRESENTATION

Counsel for the Applicant: Mr Karp

Solicitors for the Applicant: My T Nguyen Solicitors

Solicitors for the Respondents: Mr Gao, Australian Government Solicitors

ORDERS

1. The name of the First Respondent be changed to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.

2. In relation to the publication of any judgment in relation to this matter, the Applicant is to be referred to using a pseudonym for 5 years.

3. The application is dismissed.

4. The Applicant to pay the First Respondent’s costs fixed in the amount of $6000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

SYG 3977of 2017

TMDN

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR EX TEMPORE JUDGMENT

(Revised from Transcript)

Introduction

1. The applicant is a national of Vietnam, born in January 1981. The applicant was granted a Permanent Partner visa in October 2012 and a Subclass 155 (Five Year Resident Return) visa in July 2017. On 6 July 2017, the applicant was issued with a Notice of Intention to Consider Cancellation (NOICC), as the Delegate for the Minister for Immigration and Border Protection (“the Delegate”) had formed the view that the applicant did not comply with s 101 of the Migration Act 1958 (Cth) (“the Act”), in relation to a partner visa.

2. The applicant provided her response to the notice to the Delegate. The applicant’s visa was cancelled on 13 September 2017.

3. The applicant sought merits review in the Administrative Appeals Tribunal (“the Tribunal”). The applicant was assisted by an interpreter and a registered migration agent before the Tribunal. In a decision dated 12 December 2017, the Tribunal affirmed the decision of the Delegate to cancel the applicant’s Subclass 155 (Five Year Resident Return) visa.

4. The applicant now seeks judicial review in this Court. By consent, this matter is being heard concurrently with that of her son. A separate judgment will be issued in relation to both, however, both judgments should be read in conjunction with each other.

Administrative Appeals Tribunal’s Decision

1. After setting out the relevant background, the Tribunal set out, at paragraphs 4 to 6 of its decision, the relevant law. The Tribunal considered the validity of the notice of intention to consider cancellation and was satisfied that it contained sufficient particulars to enable the applicant to identify and address the issues and that the Delegate had reached the necessary state of mind to engage s 107 of the Act. The Tribunal then went on to consider whether or not there was a non-compliance as described in s 107 of the Act.

2. Counsel for the applicant, in his submissions, noted that the Tribunal set out in succinct chronological form, the facts of the case. Counsel then considered the evidence and arrived at a the conclusion that the applicant had not been truthful in her relationship with a Mr D and that there was a non-compliance with s 101 of the Act, in a way described in a way described in the s 107 notice of the Act.

3. Counsel noted that s 107A of the Act, which states that the non-compliance in the s 107 notice of the Act, may occur at any time, included in a previous visa application. Counsel for the applicant submitted that there was no challenge to that finding or the reasoning behind it.

4. Counsel for the applicant noted that the Tribunal then moved onto the factors it was required to consider, pursuant to s 109(1)(c) of the Act, read in conjunction with r 2.41 of the Migration Regulations 1994 (Cth) (“the Regulations”). Counsel for the applicant conceded that the Tribunal properly cited the MIAC v Khadgi (2010) 190 FCR 248, as authority for the proposition that the Tribunal, in its consideration of its discretion, is not limited to r 2.41 of the Regulations factors.

5. At paragraph 28 onwards of its decision, the Tribunal considered, given the non-compliance and in the way described above, whether or not the applicant’s visa should be cancelled. The Tribunal did so by setting out relevant factors and then discussed the evidence and its conclusions.

6. At paragraph 32 of its decision, the Tribunal found that the applicant had provided incorrect information and the decision to grant her a visa, was based on the claim that she was in a relationship with Mr D. If such a relationship did not exist, the applicant was not entitled to be granted a partner visa. The existence of the relationship was central to the decision to grant the applicant a visa.

7. At paragraph 33 of its decision, the Tribunal formed a view that the applicant was well aware of the deception and, in fact, took an active part in it.

8. In regards to the present circumstances of the applicant, at paragraph 34 of its decision, the Tribunal accepted that the applicant is well-settled in Australia, has stable employment and is well integrated into the community. Two of the applicant’s children live with her in Australia and attended school. In terms of subsequent behaviour, pursuant to Subdivision C of Division 3 of Part 2 of the Act, nothing adverse is known about the applicant.

9. In terms of other instances of non-compliance by the applicant, according to the primary decision record, at paragraph 36 of its decision, the Tribunal noted the applicant was living in Australia as an unlawful non-citizen between August 2008 and August 2010, being a period of two years.

10. In terms of the time that has elapsed since non-compliance, the Tribunal noted, at paragraph 37 of its decision, the application for a partner visa was made in September 2010 and the applicant was granted a permanent visa in October 2012. More than seven years have passed since the application was made and the non-compliance. At paragraph 38 of its decision, the Tribunal noted it was not aware of any other breaches of the law since granting the visa.

11. In terms of any contribution made by the applicant to the community, at paragraph 39 of its decision, the Tribunal noted the claims that she is a loving mother and a person of good character. The Tribunal acknowledged a number of character references submitted to it and noted that the applicant refers to having “grave financial hardship” and borrowing money from friends and receiving assistance from the temple to support herself and her two children.

12. In terms of other matters, the Tribunal noted that, if the applicant’s visa was cancelled and she does not hold any other visa, she may become an unlawful non-citizen and subject to mandatory detention and removal. The Tribunal also noted that the applicant is a sponsor for Mr V’s application, Mr V being the parent acknowledged of her eldest child. If the applicant does not hold a permanent visa, she may not meet the sponsorship requirements for Mr V.

13. The Tribunal noted that the visa held by the applicant’s eldest child has been cancelled under s 109 of the Act. There are no other persons to whom visas would be subject of consequential cancellation.

14. At paragraph 44 of its decision, the Tribunal noted there was no evidence that the applicant would be subjected to any harm or persecution if she were to return to Vietnam.

15. Paragraph 45 of its decision, the Tribunal notes concerns regarding the applicant’s three children. The applicant has three children aged, as at the time of the Tribunal’s decision, between eleven and three. It was suggested they had only lived in Australia and were dependent on the applicant. Two of the children are Australian citizens. The eldest son’s visa has been cancelled, but if the visa were to be reinstated, the eldest son would, in due course, be able to claim Australian citizenship. The Tribunal acknowledged that the two younger children are Australian citizens, although it is incorrect to state they had only lived in Australia.

16. The Tribunal noted that the applicant confirmed, in her oral evidence to the Tribunal that, whilst the second child, who is an Australian citizen, is in Australia, her youngest child, a daughter, who is also an Australian citizen, was, at that stage, in Vietnam.

17. With respect to the daughter, the applicant stated she did not know who the child’s father was, as it was a result of a one-night-stand. The Tribunal, at paragraph 47 of its decision, noted that as a result, the only child that had any contact with their father is the oldest son and that his father, Mr V, lives in Vietnam.

18. The applicant stated that the two children who were born in Australia have lived here a long time and could not live anywhere else. The Tribunal, at paragraph 49 of its decision, noted that all three children would be familiar with a life in Vietnam, as they had all spent some time there and would have developed some language skills and may well be used to life in Vietnam.

19. The applicant’s evidence to the Tribunal is that she only wants her children to spend a short time in Vietnam. The Tribunal noted that there was no evidence that during their residence in Vietnam, the children had experienced any hardship, even though the applicant claims that living standards in Vietnam are not the same as Australia.

20. At paragraph 50 of its decision, the Tribunal concluded that the children would have no difficulty adapting to a new country, particularly as all three children had already lived in Vietnam and the youngest one still lives there. In the case of the eldest child, living outside of Australia would enable him to live with both parents.

21. At paragraph 51 of the Tribunal’s decision, the applicant claimed that the two youngest children would face difficulty in getting household registration in Vietnam and that they may lose their Australian citizenship because Vietnam does not allow dual citizenship. The eldest child is and remains a Vietnamese citizen. The Tribunal was prepared to accept, despite limited evidence that the children may be unable to maintain dual citizenship in Vietnam, but it may be possible for them to give up their Australian citizenship and maintain Vietnamese citizenship with a permanent household registration, but reacquire Australian citizenship by descent, if they decided to return to Australia in the future. The Tribunal did not accept that the children would be denied household registration.

22. Overall, the Tribunal did not accept that the children would be adversely affected by the cancellation of the applicant’s visas. The Tribunal did not find that it was not in the best interests of the children, that the visa not be cancelled.

23. At paragraph 54 of its decision, the Tribunal again noted that an application has been made for Australian citizenship, in relation to the eldest son. That application has not been determined and, if the applicant’s visa is cancelled, the son is unlikely to be granted an Australian citizenship and will not be an approved sponsor for his father, Mr V.

24. At paragraph 55 of its decision, the Tribunal noted that the applicant claimed that her parents in Vietnam were unable to assist in looking after the children, however, she had made the decision that her parents were capable of looking after the youngest child and that they have looked after the other two children previously. The Tribunal did not accept that the parents were too old or incapable of supporting the applicant and, by necessity, her children.

25. At paragraph 57 of its decision, the Tribunal noted that over seven years have passed since the application was made which contained untruthful information. The Tribunal accepts that the applicant is well-settled in Australia and has been living in Australia for many years and that her children have also lived in Australia and the two youngest hold Australian citizenship. The Tribunal accepted a degree of hardship may be caused if the visa was cancelled, as that may mean that the entire family would have to return to Vietnam. The only other option would be that a minor child would stay in Australia.

26. The Tribunal did not accept the applicant’s evidence the children will be denied household registrations or access to services because of their Australian citizenship status. The Tribunal formed that the best interests of the children, will not be so adversely affected by the cancellation of the visa and the family’s return to Vietnam, noting that the eldest child would be reunited with both parents and the younger two children would not be adversely affected by being separated from their fathers, because they currently have no contact and no relationship with them.

Grounds of Appeal

1. The applicant relies upon a single ground of appeal, which is as follows:

   1. The Tribunal erred in that it failed to consider claims or reasons put forward by or on behalf of the Applicant and her oldest son as to why her visa should not be cancelled pursuant to s 109 of the Migration Act.

   Particulars:

   a)   Failure to consider the claim that as a single mother with three children the applicant would not be able to find work in Vietnam and to support her three children.

   b)   Failure to consider the claim made by the Applicant’s eldest son that he finds it hard to speak Vietnamese and he cannot read or write in Vietnamese.

The Applicant’s Submissions

1. Counsel for the applicant quite properly conceded that the applicant had been untruthful in a visa application and that grounds existed for consideration of the cancellation of her visa.

2. In considering its discretion, Counsel submitted that the Tribunal was required to asses, in a real and active way, the evidence, submissions and material put before it or, put another way, conduct an active intellectual process into the material. Whether or not it had done so, was a matter of substance, not form and the Court was required to look behind the assertion that the Tribunal did something and examined the evidence to see if it really did so.

3. While the Tribunal did discuss at length certain matters, Counsel submitted that the Tribunal did not consider that the applicant would not be able to find full-time work in Vietnam and take care of her children at the same time. Counsel submitted that this is not covered or subsumed by the Tribunal’s general findings, that the applicant’s parents are not too old or incapable of supporting her. The children were young and, at some stage, the parents also will be old.

4. The Tribunal found that all three children would be familiar with life in Vietnam and would have developed some language skills and it did not accept that the children would be adversely affected by the cancellation of the applicant's visa. The Tribunal did not consider, however, that the applicant’s eldest son cannot read or write in Vietnamese. Counsel submitted that this was required to be specifically considered, because it went directly to the ability of the eldest son to adapt to living in Vietnam in his coming years.

The First Respondent’s Submissions

1. Counsel for the First Respondent submits that the decision of the Tribunal must be read as a whole and there is no requirement for the Tribunal to refer to every piece of evidence and every contention made by the applicant (see Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at [46] (“Applicant WAEE”) ).

2. It was submitted that whilst it has been recognised:

   …There is a need to exercise caution in relation to the use of the expression “proper, genuine and realistic consideration” because there is a danger that it may draw the Court into impermissible merits review.

   (See Minister for Immigration and Border Protection v Lium [2019] FCA 1850 at [38]).

3. The first particular of the ground of appeal, asserts that the Tribunal failed to consider the applicant’s claim that, as a single mother with three children, she would not be able to find work in Vietnam to support her children. Counsel notes that the Tribunal expressly referred to the applicant’s statutory declaration of 4 December 2017 at paragraph 12 of its decision, where this claim is made, indicating that the statutory declaration and its contents were considered. The Tribunal also considered the particular hardship that the children might experience if they returned to Vietnam. Counsel submitted that the applicant’s claim was not that she would not be able to find work and subsist, but that she would have difficulty taking care of her children at the same time. Counsel submits the claims made in her statutory declaration were subsumed by the Tribunal’s finding of greater generality.

4. The second particular to the ground of appeal, asserts that the Tribunal failed to consider the claim made that the applicant’s eldest son finds it hard to speak Vietnamese and cannot read or write in Vietnamese. This claim relates to paragraph 9 of the applicant’s son’s statutory declaration dated 15 December 2017. Counsel submits that the Tribunal’s findings that all three children have spent time in Vietnam and “would be familiar with life in Vietnam and would have developed some language skills and may well be used to life in Vietnam” are findings of greater generality that subsume the claim made by the applicant’s son, that he finds it difficult to speak Vietnamese and cannot read or write Vietnamese.

Consideration

1. The issues in this matter come down to whether or not the Tribunal gave proper consideration to the claims of hardship in relation to all of the children, should the applicant be returned to Vietnam and in particular, in relation to her eldest son. It is to be noted the younger two children of the applicant are Australian citizens. The ultimate outcome of the applicant’s visa being cancelled, is that they would effectively lose the capacity to be raised in their country of citizenship.

2. Such an outcome calls for very careful consideration, bearing in mind, there was no allegation that there has been any fault on behalf of the children and the impact on them, as compared to the need to cancel the applicant’s visa because she told untruths in her original visa application. The children have done no wrong. It is generally accepted in the current circumstances, a cancellation of a visa is necessary, not so much to punish the applicant, but to support the integrity of the system.

3. Counsel for the applicant quite properly conceded that grounds existed for the cancellation of the applicant’s visa. In relation to the first particular, the Court agrees with the first respondent that the Tribunal did consider the claim that as a single mother with three children, the applicant would find it difficult to work and look after her three children. The Tribunal went into considerable detail in considering the issues. It related the best interests of the children together with family unity principles. It specifically noted, the eldest child would be reunited with his father, who is currently living in Vietnam.

1. The Tribunal specifically noted that each of the three children had spent time in Vietnam and, indeed, at the time of the decision, the youngest one was living there. The Tribunal found that the three children would have no difficulty adapting to a new country as they had already lived in Vietnam. The Tribunal noted that they all had basic language skills. It is not the role of the Tribunal to engage in merits review. The Court can only quash a decision of a Tribunal, if it finds there has been jurisdictional error.

2. The Court is not satisfied there is evidence that the Tribunal failed to engage in a proper, genuine, realistic consideration of the issue, relating to the claim that the applicant is a single mother with three children and would not be able to find work in Vietnam to support them. The Tribunal specifically considered a number of considerations. The Tribunal is not required to specifically refer to each piece of evidence, if it is clear that the totality of the evidence has been considered when it makes its findings.

3. The Court is not satisfied that the Tribunal failed to consider the evidence and the submissions before it, in a real and active way as set out in Applicant WAEE. The Court is satisfied that this ground effectively asks the Court to engage in impermissible merits review and no jurisdictional error has been established.

4. In relation to the second ground, it is submitted that the Tribunal is specifically required to make reference to the fact that the applicant’s oldest son finds it hard to speak Vietnamese and cannot read or write in Vietnamese. It was submitted it was specifically required to be considered, because it went directly to the ability of the applicant’s eldest son to adapt to living in Vietnam in his coming teenage years. The Tribunal made specific findings that all three children have spent considerable time in Vietnam and would be “familiar with life in Vietnam, would have developed some language skills and may well be used to living in Vietnam”.

5. The Court is satisfied that the Tribunal had before it the claim that the applicant’s eldest son is not fluent either orally and more particularly, in reading and writing in Vietnamese. This would be a particular challenge for him. It is clear to the Court, however, that the Tribunal did consider this but came to a conclusion, in the case of the eldest child, that there was the corresponding advantage that living outside Australia would enable him to live with both parents.

6. The Tribunal came to a view that the children, including the eldest, would not experience undue hardship, discrimination or an inability to access services during residence in Vietnam. Accordingly, the Tribunal was not satisfied that they would experience such hardship in the future. In these circumstances and in particular because there was specific reference to the eldest son, the Court is satisfied that the Tribunal did consider the claim that the applicant’s eldest son finds it hard to speak Vietnamese and cannot read or write, but dismissed it as not being sufficient to warrant not cancelling the applicant’s visa.

7. No jurisdictional error is established in relation to the second particular of the ground of appeal. As no jurisdictional error is established, the application must be dismissed.

8. The Court notes however, that it is aware that the above decision will result in two Australian citizens, who are minors, being possibly forced to relocate to a country outside their country of citizenship.

9. Further, due to the issues that relate to the capacity of the two youngest children to maintain dual citizenship in Vietnam, they may be required to give up their Australian citizenship and take up Vietnamese citizenship. It may be possible for them, in their adult years, be able to come back to Australia and reclaim that citizenship.

10. There is no suggestion that there has been any fault on behalf of the two children. Rather, they are caught out in circumstances that relate to the conduct of their mother. Whilst the Court has found there is no jurisdictional error in the Tribunal’s decision, the particular circumstances in this case may well be that there are good grounds for ministerial intervention. That, however, is a matter for the Minister and not for the Court.

Conclusion

1. Accordingly, the application is dismissed.

I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Judge Humphreys

Deputy Associate:  

Date:  11 March 2020