Tong v Minister for Immigration
[2018] FCCA 1329
•23 May 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| TONG v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1329 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – application for a Partner (Temporary) (Class UK) visa – whether the exclusion of the applicant during evidence being taken from a particular witness amounted to a denial of procedural fairness – whether there was non-compliance of s 360 of the Act – writs issued. |
| Legislation: Migration Act 1958 (Cth), ss.5F, 353, 359A, 360, 363, 364, 375, 476 Migration Regulations 1994, reg 1.09A, 1.15A, cl 820.211, 820.221 of Schedule 2 |
| Cases cited: Huang & Ors v Minister for Immigration & Anor [2016] FCCA 3069 MZZMG V Minister for Immigration and Border Protection (2015) 234 FCR 180 |
| Applicant: | HO WAI TONG |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3942 of 2017 |
| Judgment of: | Judge Street |
| Hearing date: | 23 May 2018 |
| Date of Last Submission: | 23 May 2018 |
| Delivered at: | Sydney |
| Delivered on: | 23 May 2018 |
REPRESENTATION
| Solicitors for the Applicant: | Mr R Turner Turner Coulson Immigration Lawyers |
| Counsel for the Respondents: | Mr M Smith |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
Grant leave to the applicant to amend the amended application in ground 2 adding the words “and/or contravene s 360 of the Migration Act 1958 (Cth)” and the Court dispenses with the need for the filing of a further amended application.
A writ of certiorari is issued calling up the record of the Administrative Appeals Tribunal and quashing the decision made on 4 December 2017.
A writ of mandamus is issued requiring the Administrative Appeals Tribunal to determine the review application for a Partner (Temporary) (Class UK) visa according to law.
The first respondent pay the applicant’s costs fixed in the amount of $7,328.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3942 of 2017
| HO WAI TONG |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for a Constitutional writ within the Court's jurisdiction under s 476 of the Migration Act1958 (Cth) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 4 December 2017 affirming a decision of the delegate not to grant the applicant a Partner (Temporary) (Class UK) visa.
The applicant is a citizen of China and on 8 July 2016, the first respondent refused to grant the applicant a visa. The applicant applied for review on 25 July 2016. The applicant was invited by letter dated 6 October 2017 to attend a hearing on 31 October 2017. The visa applicant attended that hearing and the transcript has been tendered. The transcript establishes and I find that the visa applicant was excluded during the taking of evidence from a witness called on behalf of the visa applicant at that first hearing. The visa applicant was also excluded during the evidence of the sponsor at that first hearing. The hearing record in relation to that hearing identifies it commenced at 1:36 pm and was adjourned at 4:28 pm.
The applicant was invited by letter dated 2 November 2017 to attend a resumption of the hearing on 15 November 2017. At the second hearing on 15 November 2017, the witness Ling Li Hung was not in attendance, although the applicant and the sponsor were in attendance. On both occasions, the applicant had a representative present who was said to be a migration agent. The Tribunal identified that the applicant had to meet the requirements of s 5F of the Act and the matters in relation to reg 1.15A of the Migration Regulations 1994 (“the Regulations”).
This is a case where the Tribunal made adverse credibility findings in relation to the visa applicant. The Tribunal found the visa applicant had given inconsistent evidence and was at times evasive. The Tribunal expressly took into account the documentary and oral evidence in relation to its credibility concerns about the applicant. The Tribunal summarised the applicant's evidence and the evidence of the sponsor.
The Tribunal expressly addressed the evidence given by the witness Ling Li Hung. The Tribunal made reference to the evidence of that witness that the applicant met the sponsor in 2013 or 2012, and that the witness alleged that the sponsor and the visa applicant had known each other for six months. The taking of this evidence all occurred in the absence of the visa applicant on the first day of the hearing.
The Tribunal then addressed the financial aspects of the relationship. The Tribunal identified that there were financial aspects that supported the persons being in a genuine relationship, but because of the credibility concerns, the Tribunal did not consider that evidence as reliable as it might have been. The Tribunal expressly took into account the nature of the household and was not satisfied the parties share a household in the manner that might reasonably be expected of two genuinely married people in a long-term relationship.
The Tribunal referred to the social aspects and referred to the inconsistent evidence regarding their first intimate time together. The Tribunal found that inconsistency to be significant, and the Tribunal would expect that intimacy to be memorable and that the evidence would be consistent. In light of the credibility concerns of the Tribunal, the Tribunal gave little weight to the evidence of other statements supporting the relationship and views that it was genuine and continuing.
The Tribunal also referred in the context of its credibility concerns that the Tribunal was concerned about the evidence provided by the applicant's witness at the hearing that the parties had known each other for six months prior to their marriage. That was evidence given by the witness at the hearing to which the visa applicant was excluded during the course of that evidence. The Tribunal referred to the applicant's evidence being consistent with her submissions, but that the oral evidence contradicted the evidence that had been given by the visa applicant and the sponsor.
The Tribunal referred expressly to the nature of the commitment and did not consider the evidence before it persuasive in regard to the nature of the commitment of the parties to each other as demonstrating a genuine marriage and a mutual commitment to a shared life together.
The Tribunal turned in detail to the credibility issues and the inconsistencies in the evidence provided by the applicant and the sponsor. The Tribunal also made reference to raising with the applicant the fact that her witness stated that she and the sponsor met six months before they were married, which supports the written version of when she and the sponsor first met. The Tribunal pointed out that it had provided the witness with an opportunity to expand on her explanation about how the applicant and the sponsor met and the witness did not refer to the fact that the parties originally met many years earlier and stayed in contact from time to time. This was a reference to the witness in respect of which the visa applicant was excluded during that part of the hearing.
The transcript does not support the visa applicant's consent being sought to her exclusion during the evidence of the witness or her exclusion during the evidence of the sponsor on the first day of hearing. Nor was any reason proffered by the Tribunal as to why that step was being taken. Nor is any consideration revealed by the Tribunal on the transcript or in its reasons as to why that was an appropriate course to take in the conduct of the review or on what basis the Tribunal believed it had power to do so or as to why it was reasonable to exercise that power. No inference can be drawn as to why the exercise of such a power was reasonable. The Tribunal's reasons identify further concerns raised with the applicant's evidence and found there was inconsistent responses in relation to the language used between the sponsor and the visa applicant, but found the applicant's explanation, one that should have been raised at the outset.
The Tribunal referred to other adverse information which was put to the visa applicant as required under the provisions of s 359AA of the Act, and that the visa applicant proffered an explanation that it was an ex-girlfriend who was aggrieved.
The Tribunal referred to material provided under a s 375(a) certificate, which the Tribunal found was invalid, and the Tribunal raised the certificate with the applicant and expressly referred to not taking into account the documents the subject of the certificate.
The Tribunal made reference to the requirements under reg 1.15A and reg 1.09A of the Regulations and was not satisfied the parties have a mutual commitment to a shared life as husband and wife to the exclusion of all others and the relationship is genuine and continuing and that they live together and not separately and apart on a permanent basis.
The Tribunal referred to the evidence adduced weighing heavily upon the financial matters, and the Tribunal found the credibility issues raised concerns as to the true nature of the relationship. The Tribunal found that the applicant's relationship with the sponsor was established for immigration purposes. The Tribunal accepted some financial interests, living together and having support from some friends and the sponsor's son, but given the lack of credibility of the evidence presented by the visa applicant and the inconsistencies in the evidence, the Tribunal was not satisfied about the genuineness of the relationship. The Tribunal found the applicant was not in a genuine marriage. The Tribunal found that it was not satisfied the parties had a mutual commitment to a shared life as husband and wife to the exclusion of all others or that the relationship is genuine and continuing.
The Tribunal expressly referred to considering the material individually and cumulatively and the Tribunal was not satisfied that the requirements of cl 820.211(a) or cl 820.221 of Schedule 2 of the Regulations were met and affirmed the decision under review.
Before this Court
The amended application raises three grounds as follows:
1. The decision of the First Respondent by the Second Respondent (Tribunal) was unreasonable.
PARTICULARS
a. The material in favour of, and found by the Tribunal to be, setting aside the decision was so overwhelming that to decide to affirm the decision could not be a decision based on logical reasoning according to the rules of reason and justice, not according to private opinion; according to law, and not humour, and within these limits within which an honest man, competent to discharge his office, ought to confine himself.
2. The Tribunal denied the Applicant procedural fairness and/or contravene s 360 of the Migration Act 1958 (Cth).
PARTICULARS
a. By requiring the Applicant to remain outside the hearing room while evidence was being given, the Tribunal denied the Applicant procedural fairness.
3. The Tribunal failed to take account of the relevant material by failing to make necessary findings.
PARTICULARS
a. The Tribunal failed to make a necessary finding in relation to:
(i) The financial relationships between the Applicant and her partner; and
(ii) The social aspects of the couple's relationship
Ground 1
In relation to ground 1, Mr Turner the solicitor for the applicant submitted that the Tribunal's reasons were legally unreasonable in the circumstances of the present case. Mr Turner focused in particular on the findings of the Tribunal at paragraph 85 and suggested that the Tribunal's reasoning reflected a deficient analysis of the kind identified in Re Minister of Immigration, Local Government and Ethnic Affairs v Dhillon & Anor [1990] FCA 144, relevantly at [10], and Mr Turner also took the Court to [11]. The Tribunal's reasons in relation to affirming the decision reflected an orthodox approach and consideration of the whole of the relevant statutory criteria. The adverse findings in relation to credit were open for the reasons of the Tribunal summarised above. There is no illogicality or unreasonableness in those adverse credibility findings.
Paragraph 85 of the Tribunal's reasons is not to be read in isolation. The Tribunal identified cogent and relevant credibility concerns that arose on the evidence in relation to the determination of the statutory criteria. There is no basis to find that the Tribunal adopted a private opinion or sought to apply some personal arbitrary standard in relation to concepts of marriage. The Tribunal's reasons in affirming the decision under review do not support the submission of legal unreasonable advanced in relation to ground 1. Accordingly, ground 1 of the amended application is not made out.
Ground 3
For reasons of convenience, the Court will turn to ground 3. Ground 3 contended that the Tribunal had failed to take into account relevant material in circumstances where it was alleged that the Tribunal had not made necessary findings of fact in relation to the financial aspects and social aspects of the relationship. It is apparent from the summary given above that the Tribunal expressly referred to both statutory criteria. It was not necessary for the Tribunal to make particular findings, having taken into account those factors. No jurisdictional error as alleged in ground 3 is made out.
Ground 2
In relation to ground 2, Court notes that the words "and/or contravene s 360 of the Migration Act 1958 (Cth)" are added into ground 2 and the Court granted leave to the applicant to amend ground 2 to add the words the Court dispensed with the need for the filing of a further amended application".
Mr Turner submitted that there had been both a denial of procedural fairness by the exclusion of the applicant during the evidence of the first witness on the first hearing day and in circumstances of the exclusion of the applicant from the evidence of the sponsor on the first hearing day. Mr Turner also submitted that there had been a non-compliance with the mandatory requirements of s 360 of the Act.
Mr Smith of counsel on behalf of the first respondent took the Court to the decision of the learned Judge Smith in this Court in Huang & Ors v Minister for Immigration & Anor [2016] FCCA 3069 (“Huang & Ors”), as well as to the decision of the Full Court of the Federal Court in MZZMG v Minister for Immigration and Border Protection (2015) 234 FCR 180 (“MZZMG”), relevantly at [35]-[48]. That latter decision binds this Court insofar as it identifies a ratio. It is also one in respect of which the Court must take into account the flexibility in the proceedings of a kind to which the equivalent provision of s 360 of the Act refers as identified by the learned Gleeson CJ at [21].
Section 360 of the Act is as follows:
(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
(2) Subsection (1) does not apply if:
(a) the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it; or
(b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
(c) subsection 359C(1) or (2) applies to the applicant.
(3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.
Subsection (2) is materially confined by subsection (3). Neither subsection (2) nor subsection (3) can support the implication of a power to conduct the hearing in the absence of the applicant. Indeed, those provisions in subsection (2) and subsection (3) have a consequence from the applicant agreeing to be excluded from a hearing that would preclude the applicant from further participating in the hearing.
Section 360 of the Act must of course be read within its context in Part 5 and in particular, s 353 of the Act and the powers referred to in s 363 of the Act, and material for the purpose of the present case, s 364 of the Act, giving the ability to take evidence inside or outside Australia, subject to any limitations or requirements specified by the Tribunal.
The language of s 364 of the Act does support the existence of a power to take evidence at a review in circumstances where the review applicant is excluded from part of the hearing. Mr Smith submitted that the decision in MZZMG meant that the only consideration that therefore would arise would be whether the exclusion was one that gave rise to a denial of procedural fairness. Clearly, the exercise of a purported statutory power can also give rise to issues of legal unreasonableness. However, the full scope of s 360 of the Act in its express terms is not delineated and confined in the work that is to be done by the fact that the Tribunal in the conduct of the review as a matter of process must comply with the requirements of procedural fairness.
The express language of s 360 of the Act still has work to do. In the circumstances of the present case, there was no explanation advanced by the Tribunal and none can be inferred in the circumstances of this case as to why the applicant was excluded during the evidence of the witness or in relation to the sponsor on the first occasion. There is no inference available as to why it was reasonable to exclude the applicant. There is force in Mr Smith's submission that in analysing whether there has been a denial of procedural fairness, it appears that the issue of the inconsistency of the evidence given by the witness was raised by the Tribunal with the applicant. That does not however, address the whole scope of the consequences of the denial of the applicant being allowed to participate in the hearing during which the witness's evidence was given in the circumstances of this case.
The applicant was denied the opportunity during the course of that hearing of giving evidence or leading evidence from the witness in answer to the alleged inconsistency, and raising with the witness explanations for what might otherwise have been the inconsistency. The evidence of the witness was material hence the steps taken under s 359AA of the Act. The Tribunal's compliance with the procedure of raising with the applicant the adverse evidence does not address the full impact of the denial of procedural fairness that occurred in the present case in circumstances where the applicant was excluded from the evidence given by the material witness and in circumstances where no consent was given by the applicant. No consent can in the present case be inferred. The transcript does not support the seeking of consent by the Tribunal and no reason has been proffered by the Tribunal for the exercise of the power that in light of MZZMG and the provisions I have referred to, does exist to exclude a review applicant in certain circumstances.
I accept that given the sponsor attended the next hearing, it could not be said that the exclusion of the applicant from the evidence of the sponsor gave rise of itself to a denial of procedural fairness. However, the material witness that was the subject of exclusion of the visa applicant on the first occasion did not attend the next hearing. The Tribunal raising the inconsistency issue does not mean that the applicant was given a fair process in circumstances where the applicant, had she been present during the course of that evidence from the material witness, could have led further potentially relevant evidence.
The other adverse credibility material is not material on which this Court can come to a view that there was no material denial of procedural fairness in the circumstances of the present case. I find that there was a material denial of procedural fairness in the circumstances of this particular case, where unlike the circumstances in Huang & Ors, no explanation was provided for the excluding of the applicant from the evidence, no reasonable basis can be inferred and no consent was sought. The existence of a migration agent during the first hearing and the second hearing does not materially change the circumstances that there has been a denial of procedural fairness in the present case. The position may be otherwise if migration agents were all qualified lawyers. That however, unfortunately is not the case.
The learned Judge Smith in Huang & Ors identifies that the question must turn upon the procedure adopted in the particular case and whether there has been a denial of procedural fairness. Given the Tribunal's focus upon the material witness in relation to the credibility issues taken into account, this is a case where the denial of the applicant being present during the taking of that evidence had a material and adverse consequence to the applicant in the conduct of the review. The applicant did not have a fair process in the conduct of the review by reason of her exclusion from the evidence of the material witness at the first hearing in the circumstances of this case.
I do not regard the second hearing or the raising of the issue about the inconsistency under s 359AA of the Act as overcoming the want of fair process that occurred at the first hearing. It may have been possible for the Tribunal to do so had the Tribunal invited the applicant to adduce further evidence from the witness and/or provided reasons in support of the exercise of the power to exclude the visa applicant from the hearing. There may well be circumstances where it is appropriate to do so because of high sensitivity or the nature of allegations. It is however, a power that should in general be the subject of identified reasons in support of its exercise, so that a Court reviewing the exercise of the administrative power can determine whether it was exercised within the confines of both legal reasonableness and within the requirements of procedural fairness within the statutory regime. Further, in the present case, the witness was giving evidence on a material issue in relation to the social aspects of the relationship. The materiality of the witness is supported by reference to the Tribunal's reasons focusing specifically on that witness, as well as in relation to the inconsistency issue flowing from that witness' evidence raised under s 359AA of the Act.
The Tribunal's reasons are relevant in assisting the Court to determine whether or not the Tribunal complied with the requirements of s 360 of the Act. Section 360 of the Act is a mandatory provision that must be complied with. The applicant must be given a really meaningful opportunity to give evidence and present arguments relating to the issues arising in relation to the decision under review. The evidence of the particular witness was evidence relating to the issues arising in relation to the decision under review. The applicant was not given a real and meaningful opportunity to participate in the hearing and to give evidence and present arguments in the circumstances of the present case where the applicant was excluded during the taking of that evidence from that material witness without consent and without reasons to explain why.
Whilst I accept that the applicant was invited to attend in compliance with the statutory requirement, the applicant must in accordance with the requirements of s 360 of the Act be given the opportunity to give evidence and present arguments relating to the issues. Where the applicant as occurred in this case has been excluded from part of a hearing in which the evidence is taken from a witness without consent or reasons and that evidence relates to the issues arising in relation to the decision under review, either clear steps must be taken to ensure that the applicant has the opportunity to both give evidence and present arguments in relation to that evidence taken in the absence of the visa applicant or there must be a reasonable basis identified or which can be inferred as to why the visa applicant was excluded. That did not occur in the present case. The Court finds there is a contravention of s 360 of the Act in the circumstances of the present case by the exclusion of a visa applicant during the evidence that was taken from the particular witness.
Conclusion
Accordingly, the Court finds that there was jurisdictional error both by reason of a denial of procedural fairness and by reason of non-compliance with s 360 of the Act as alleged in ground 2 of the amended application.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Street
Date: 7 June 2018
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