Tran v Minister for Home Affairs
[2019] FCCA 736
•26 March 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| TRAN v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 736 |
| Catchwords: PRACTICE & PROCEDURE – Late application amend seeking to rely on new ground of review – no evidence filed in explanation of late amendment – amendment not futile – leave to amend granted. |
| Legislation: Migration Act 1958 (Cth), ss.5F, 476 Migration Regulations 1994 (Cth), reg.1.15A |
| Cases cited: BYM16 v Minister for Immigration & Anor [2017] FCCA 2445 Minister of Immigration v Dhillon [1990] FCA 144 |
| Applicant: | THANH THUY TRAN |
| First Respondent: Second Respondent: THANH THUY TRAN | MINISTER FOR HOME AFFAIRS ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 934 of 2018 |
| Judgment of: | Judge Baird |
| Hearing date: | 7 March 2019 |
| Date of Last Submission: | 7 March 2019 |
| Delivered at: | Sydney |
| Delivered on: | 26 March 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr N Poynder |
| Solicitors for the Applicant: | Vinh Duong & Associates |
| Solicitors for the First Respondent: | Ms B Rayment, Sparke Helmore |
ORDERS
GRANTS leave to the Applicant to file and rely on an amended application dated 7 March 2019 in the form handed up to Court at the commencement of the hearing on 7 March 2019.
ORDERS that a writ of certiorari issue, quashing the decision of the Second Respondent dated 8 March 2018.
ORDERS that a writ of mandamus issue, directed to the Second Respondent requiring it to consider and determine the Applicant’s application for review of the decision of a delegate of the First Respondent dated 27 July 2015 according to law.
ORDERS that the First Respondent pay the Applicant’s costs fixed in the sum of $7,328.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 934 of 2018
| THANH THUY TRAN |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application pursuant to s.476 of the Migration Act 1958 (Cth) for judicial review of a decision of the Administrative Appeals Tribunal dated 8 March 2018, affirming a decision of a Delegate of the First Respondent, the Minister for Home Affairs, made 27 July 2015 to refuse to grant the Applicant, Ms Thank Thuy Tran, a partner residence (class BS) (subclass 801) Visa. Ms Tran applied for the Visa on 14 January 2011.
Procedural history in this Court
The application in this Court was filed on 5 April 2018. It was filed by Ms Tran who did not, at that time, appear to have a lawyer, although she had been assisted by a migration agent / solicitor in the proceeding before the Tribunal.
On 26 April 2018, a Registrar of the Court made orders by consent giving leave to Ms Tran to file an amended application and any further affidavit evidence sought to be relied upon, including any transcript of the Tribunal hearing, by 7 June 2018. Ms Tran was also ordered to file and serve written submissions 14 days before the final hearing. The Minister was ordered to file and serve his submissions 7 days before the hearing.
On 6 June 2018, Ms Tran, then and since represented by the same firm of solicitors who had represented her before the Tribunal, filed an affidavit sworn 4 June 2018 annexing the transcript of the hearing before the Tribunal on 31 January 2018.
On 13 November 2018, a Registrar of the Court listed the matter for hearing before me on 7 March 2019, again, by consent. That meant that Ms Tran had to file her submissions by 21 February 2019, and the Minister’s submissions were due to be filed on 28 February 2019.
On Thursday, 28 February 2019, the Minister’s solicitors, by email, informed my Chambers that they had been notified by the solicitor for Ms Tran that she intended to file submissions and an amended application later that day (28 February 2019), and, in the circumstances, the Minister’s solicitors requested a short extension of time in which to file the Minister’s submissions. The Minister’s solicitors informed my Chambers that Ms Tran’s solicitor had indicated to them that he did not consent to the Minister being granted this extension.
I made orders administratively, granting the Minister’s request, and regularising the timetable relating to the filing of the parties’ submissions.
Written submissions from Ms Tran’s counsel, Mr Poynder, were filed on 28 February 2019. Mr Poynder indicated that at the commencement of the hearing on 7 March 2019, Ms Tran would seek leave to amend the application by deleting the current ground of review, and inserting a new ground of review. No application in a case was filed, and no explanation was given at that time, by affidavit or otherwise, for the failure to comply with the Court’s orders.
The Minister filed his submissions on 5 March 2019 in accordance with the revised timetable. The Minister addressed the ground raised for the first time in the Applicant’s written submissions, and also submitted that leave to amend the application should be refused.
Application for leave
At the hearing before me on 7 March 2019, Mr Poynder of counsel appeared for Ms Tran, and Ms Rayment, solicitor, appeared for the Minister. Mr Poynder sought leave to file and serve an amended application and to rely on the substituted ground.
Mr Poynder conceded that he had not provided an explanation for the lateness of his client’s application. He submitted, however, that the application for leave should be granted, submitting that there was no prejudice to the Minister, who had known of the new ground since at least 28 February 2019, that the point now raised was of short compass, and that the merits were such that leave should be granted.
In relation to the delay and lack of explanation, Mr Poynder, accepting that what he said was from the Bar table, informed the Court that he had been first approached to appear in the matter in about 17 January 2019, and it was upon receipt of his retainer letter that Ms Tran found herself without funds. He indicated, on instructions, that should the Court require it, he would seek leave to prepare, file and rely on an affidavit explaining this matter.
In opposing leave, Ms Rayment for the Minister made the following points:
(1)Ms Tran was represented, and has been so since 5 April 2018;
(2)the amended application was some seven months in breach of the Court’s orders; and
(3)the amended application does not have sufficient merit to overcome the delays and lack of explanation. It was bound to fail.
Ms Rayment submitted that there was no evidence of the explanation given by Mr Poynder. She observed that although Ms Tran’s solicitors were on the record since April 2018, there had been no contact from them until 27 February 2019, and that the attitude that the Minister should jump to, and meet, late amendments by applicants was not one that should be encouraged. She submitted that the proper course that Ms Tran’s solicitor ought to have followed was to approach the Minister and request an extension of time when it first became apparent that she did not have funds.
Ms Rayment referred to and relied on the decision of Judge Smith in BYM16 v Minister for Immigration & Anor [2017] FCCA 2445, particularly at [6] and [7]. His Honour, in BYM16, in circumstances similar to the present, refused leave to amend the application before him, and, noting that he had also considered the merits of the proposed grounds, stated that although he would arrive at the same decision concerning leave if his view of the merits were different, the application to amend gained no strength from the proposed grounds.
I endorse what was said by Judge Smith in BYM16, at [6]-[7], in particular at paragraph [7]:
[6] There appears to be an attitude amongst legal practitioners who act for applicants in migration proceedings that neither the rules of Court nor Court orders, even those made by consent, apply to them. Perhaps that attitude has been encouraged by years of judicial lassitude, combined with the cost-consciousness of practitioners appearing for the Minister, or their adherence to the perceived breadth of the obligations of the model litigant. Whatever be the cause of this attitude, it must change.
[7] The power of the Court to grant an amendment is to be exercised for the purpose of enabling the just, efficient and economical resolution of the proceedings. No doubt, the merits of any grounds sought to be raised by an amendment are ordinarily relevant to the exercise of that power. However, in circumstances where an opportunity to amend has already been given, but eschewed, and there is no explanation for a very late and prejudicial application for amendment, the merits are not necessarily decisive.
Late amendments are not to be encouraged. Mr Poynder is an experienced counsel, and I accept his statements from the Bar table as to the explanation of the lateness of the amendment. That does not, however, address why Ms Tran’s solicitors did not follow the course suggested by Ms Rayment, nor does it excuse Ms Tran’s solicitors’ delay, at least from the date that the application was set down for hearing. Default is extremely discourteous to the Court and to the other party.
In the present case, as both parties were in a position to argue the ground as amended, whilst reserving my decision on the question of leave, I invited the parties to make their submissions on the substantive application as amended.
It became apparent during the course of the parties’ oral submissions that the amendment was not entirely futile. I propose to grant leave in the present case, having regard to the onus on Ms Tran to satisfy the Court that grounds exist for exercising the discretion to grant leave to amend in her favour.
Accordingly, in this matter, I grant leave to the Applicant to file and rely on an amended application dated 7 March 2019 in the form handed up to Court at the commencement of the hearing on 7 March 2019.
However, this is not to be seen as any encouragement to parties to delay review of grounds in an application, or to fail to communicate with the Minister’s solicitors when circumstances arise that make continued compliance with orders an issue. The just, economical and efficient conduct of cases before this Court will be enhanced and assisted if parties communicate promptly when it becomes apparent that there are problems in an applicant’s case as initially formulated.
Relevant legislative provisions
It is convenient to first set out the relevant legislative provisions.
The criteria for a Subclass 801 Partner visa are set out in Schedule 2 Part 801 of the Migration Regulations 1994 (Cth). The primary criteria for the Visa are set out in cl.801.2, and cl.801.22 sets out the criteria to be satisfied at the time of decision. Pursuant to cl.801.221(2)(c) it is a criterion for the grant of the Partner Subclass 801 visa that the Minister be satisfied that at the time of the decision the applicant is the "spouse or de facto partner of the sponsoring partner”.
"Spouse" is defined in s.5F of the Act, as follows:
Spouse
(1) For the purposes of this Act, a person is the spouse of another person (whether of the same sex or a different sex) 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 a married couple 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.
The relevant Regulation is reg.1.15A(1), which (relevantly) states:
(1) For subs.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.
Subregulation 1.15A(2) states that if the Minister is considering an application for [the Visa] the Minister must consider all of the circumstances of the relationship, including the matters set out in sub‑regulation (3).
Subregulation 1.15A(3) then provides as follows:
(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.
Ground of review
The amended application abandoned the previous ground, and substituted the following single ground and particulars as follows (without alteration):
The Tribunal misconstrued and misapplied the requirements for a person to be the “spouse” of another person, pursuant to s 5F of the Migration Act 1958 and reg 1.15A of the Migration Regulations 1994.
Particulars
(a) The Tribunal (at [46]-[47]) took into account, and did not reject, that, as at the time of the decision of the Tribunal, there was “a range of documentary and corroborative evidence as well as consistent evidence that has been submitted by the applicant and her sponsor concerning their household in recent times”; nevertheless, the Tribunal found that “the joint household they claim was established…for migration purposes”. Such a finding is not inconsistent with there being a genuine spousal relationship: Minister of Immigration v Dhillon [1990] FCA 144).
(b) The Tribunal (at [59]) found that the applicant and her sponsor “have remained married now for over seven years and acknowledges their claim that they see their relationship as a long-term one. The Tribunal finds that there has been a relationship between the applicant and the sponsor for a considerable period of time”. Nevertheless the Tribunal was “dubious” as to the degree of companionship and emotional support that the parties provide each other, and was “unconvinced” that they had lived together for the length of time they had claimed. The Tribunal incorrectly claimed that this evidence did not support a finding that the parties were in a genuine spousal relationship: cf: Minister for Immigration v Angkawijaya (2016) 236 FCR 303.
The case argued before me thus turns on the required elements for "spouse" in s.5F of the Act and reg.1.15A, and whether the Tribunal, notwithstanding that it recited that it was required to be satisfied whether the relevant criteria were met as at the date of decision, misconstrued and misapplied them.
Background facts
Ms Tran is a Vietnamese citizen who at the time of the Tribunal's decision was 27 years old. She first arrived in Australia on a student visa in January 2010. On 20 November 2010, she married an Australian citizen, Mr Ngoc Duc Truong. On 14 January 2011, Ms Tran applied for a Subclass 820 visa, which is a temporary visa, sponsored by Mr Truong. Such an application was also an application for a Subclass 801 visa (that is, the Visa), which is a permanent visa. On 13 January 2012, Ms Tran was granted a Partner (Temporary) (Class UK) (Subclass 820) visa. When granted, a (temporary) Subclass 820 visa relevantly permits the holder to remain in Australia until notified that the application for the Subclass 801 (Partner) visa has been decided: see cl.820.511 of the Regulations, Schedule 2, Part 820.
The Delegate refused to grant the Visa on the basis that Ms Tran did not satisfy cl.801.221 because the Delegate found that the parties were not in a genuine and continuing relationship. On 22 August 2016, that decision was affirmed by the Tribunal (differently constituted from the Tribunal whose decision is the subject of the amended application before the Court.). Ms Tran appealed to the Federal Circuit Court for judicial review of the decision of the first mentioned Tribunal, and on 16 June 2017, by consent, the Court made orders remitting the matter to the Tribunal for reconsideration, based on a jurisdictional error of the kind found in Minister for Immigration and Border Protection v Singh [2016] FCAFC 183, namely failure to disclose a s.375A certificate and a s.376 certificate.
A further hearing was convened by the Tribunal, and Ms Tran appeared before it on 31 January 2018, with the assistance of an interpreter in Vietnamese and English languages, and attended by her migration agent/solicitor. Ms Tran gave evidence, as did Mr Truong, and provided copies of bank statements from the parties' joint account, and other documents evidencing their joint residency. Following the hearing, on 12 February 2018, Ms Tran's solicitor provided an extract from the hearing transcript, and a statutory declaration of Ms Tran made 8 February 2018 addressing some of the issues which arose at the hearing.
As I have said, the Tribunal concluded that the Delegate's decision should be affirmed.
2018 Tribunal decision
The Tribunal at [8] said that the issue to be determined by it was “whether the parties are in a spousal relationship as defined by cl.801.221(2) in Schedule 2 of the Regulations”.
The Tribunal noted at [9] that it had regard to the departmental files, Tribunal case files, and oral evidence given by Ms Tran and Mr Truong at the Tribunal hearing on 31 January 2018.
At [10], the Tribunal then noted the background to the case, describing the allegation received on 14 November 2012 that Ms Tran entered into a contrived relationship with the sponsor for the sole purpose of obtaining permanent residency. The Tribunal set out the information then received that the parties never lived together. It described that on 16 July 2013 departmental officers conducted simultaneous home visits on Ms Tran's nominated address, and that of her sister (the 2013 site visits), that Ms Tran was not found at either address (being at work), that Mr Truong was found and interviewed at the nominated address, and that Ms Tran's sister was interviewed at her own address. The Tribunal returned to the 2013 site visits several times throughout the course of its decision. I describe some of the Tribunal’s discussion about the 2013 site visits further below, at [49] and following.
The Tribunal outlined the previous history of the Visa application. It then, at [11] and [12], turned to the legislative requirements that it must consider, referring to cl.801.221(2)(c) and noting that at the time of the Tribunal's decision Ms Tran is required to be the spouse of the sponsoring partner who, relevantly, must be an Australian citizen. The Tribunal was satisfied that the sponsor (Mr Truong) was the “sponsoring partner” of Ms Tran. The Tribunal then referred to the definition of “spouse” in s.5F of the Act, and summarised the requirements of s.5F(2)(a) - (d), observing that the Tribunal must have regard to all of the circumstances of the relationship, including the criteria set out in reg.1.15A(3), which the Tribunal extracted and attached to its decision.
At [13], the Tribunal found that the parties were validly married as required by s.5F(2)(a). At [14], the Tribunal again observed that it must consider all the circumstances of the relationship, including the matters specified in reg.1.15A, in determining whether the parties are in a "married relationship" as defined by s.5F(2). In the succeeding paragraphs under sub-headings corresponding to the non‑exhaustive list of specific matters in reg.1.15A(3)(a) – (d) it then set out the evidence, its consideration and its findings.
Nondisclosure certificates
Before summarising the Tribunal’s decision in relation to the matters specified in reg.1.15A(3)(a) – (d), I note that before the Delegate and before the Tribunal there was information in the departmental files which was subject of a s.375A nondisclosure certificate, and information that was subject of a s.376 nondisclosure certificate. Having already outlined at [12] the unfavourable information received by the department on 14 November 2012, the Tribunal addressed these certificates at [24]-[27] of its decision in the context of its consideration of the nature of the household (reg.1.15A(3)(b)).
The s.375A certificate was issued by the Delegate on the basis that disclosure would be contrary to the public interest because it covered certain internal departmental procedures. The s.376 certificate was issued by the Delegate on the basis that it contained certain personal information of a party.
The Tribunal considered that the s.375A certificate contained a valid ground of public immunity. Cognizant of its obligations under s.359AA of the Act, as recorded at [24], it put to Ms Tran the “gist” (as it described it) of the unfavourable and adverse information, and its invitation to Ms Tran to comment on the information. The Tribunal noted that in response Ms Tran drew attention to her previous written response in August 2016 to the allegations, and it then noted that response. Noting that it was unable to question the writer of the (2012) allegations, the Tribunal considered that there was scant corroborative evidence submitted by the individual who had made the allegations, and for those reasons the Tribunal says it gave the allegations no weight in its assessment of the matter (at [25]).
In relation to the information over which a s.376 certificate had been issued, the Tribunal approached the matter similarly, recording that it considered that the certificate contained valid public interest immunity grounds for non-disclosure, and cognizant of its obligations, at [26] and [27] set out the “gist” of the adverse information it gave to Ms Tran, and its invitation to Ms Tran to comment on the information. The Tribunal records that it informed Ms Tran that that information was incoming passenger cards of Ms Tran and Mr Truong from 2012 and 2015 where they provided different home addresses to each other.
Although Ms Tran, through her representative submitted that this information was not relevant to her case, the Tribunal invited her comments. Ms Tran referred to her statutory declaration provided to the (previous) Tribunal, which the (present, differently constituted) Tribunal recorded it noted. Ms Tran attested to confusing the emergency contact details and her residential address on her incoming passenger card. She had provided an address of her sister’s. The Tribunal (at [27]) stated that at the 31 January 2018 hearing it pointed out to Ms Tran that there are two distinct and separate questions concerning the incoming passenger’s own specific residential address, and their emergency contact respectively. It said: “The Tribunal is not satisfied with this explanation and considers it implausible. In the Tribunal’s view it more likely suggests the Applicant and sponsor were not living together at the same address at that time.” The Tribunal then turned to discussing in detail the 2013 site visits (see below at [49] and following).
Mr Poynder does not take any point before me regarding the s.375A or s.376 certificates.
Tribunal’s consideration and findings on other requirements for a spousal relationship
In the following paragraphs I summarise the Tribunal’s consideration of the various elements listed non-exhaustively in reg.1.15A(3).
Financial aspects of the relationship
The Tribunal addressed the financial aspects of the relationship at [15]‑[22]. It found that the parties do not jointly own any real estate, and that the major asset they claim to jointly own is a BMW motor vehicle. On the evidence the Tribunal found that the motor vehicle was their “principle” (sic) joint asset and joint liability. At [17], the Tribunal noted the claim that the parties had a joint investment in Vietnam in the aluminium sector which was said to be an investment in a family business, and observed that there was no corroborating evidence to support this. It then noted that they established a joint bank account a number of years ago, into which account Ms Tran was paid by her employer, and it reviewed the bank statements provided. The Tribunal found that the parties “are not collectively utilising this account for their every day expenses and questions whether it was established and is principally maintained for migration purposes” (at [18]).
At [19] it accepted that the parties had previously purchased a property, and found that whilst at one point Ms Tran and Mr Truong did jointly own real estate, Ms Tran did not financially contribute to the payments for this property. Mr Poynder, in oral submissions referred to evidence that the parties could not maintain the cost of ownership of the property/mortgage payments. On the question of the financial aspects of the relationship the Tribunal concluded at [22]:
[22] The Tribunal find that there is a general understanding by the applicant and sponsor of each other’s finances. The Tribunal notes that there is a range of evidence in terms of bank accounts and loans to suggest the parties have combined their financial resources to some degree. The Tribunal finds it is not convinced that this combining of financial resources has not been done principally for migration purposes and specifically in the interests of the applicant’s current visa application. The Tribunal therefore places little positive weight on the evidence of the combining of financial resources in assessing whether the applicant and sponsor are in a spousal relationship as defined by s.5F.
Nature of the household
The Tribunal, from [23] through to [48] considered the nature of the household, listing the 3 additional non‑exhaustive matters listed in reg.1.15A(3)(b). In the course of that consideration, as I have said (above at [39]-[43]), at [24] - [27] the Tribunal addressed the two certificates under ss.375A and 376 of the Act.
2013 site visits
The Tribunal at [28] through to [46] discussed at length the two 2013 site visits. The Tribunal referred to each of these visits and departmental reports as an ‘Integrity Site Visit and Interview’. These visits were made by departmental inspectors on 16 July 2013 to Ms Tran’s claimed residence at Yagoona, and to Ms Tran’s sister’s home at a flat in Condell Park. The officers attended at the sister’s address in Condell Park, and spoke to the sister about Ms Tran’s movements and her whereabouts. The Tribunal noted the officers’ record that Ms Tran’s sister said that Mr Truong resides with his parents at his house, and visits Ms Tran sometimes as Ms Tran lives with her sister at the Condell Park address as she has problems with the sponsor and is not happy.
The Tribunal also recorded the officers’ Integrity Site Visit and Interview with Mr Truong at Ms Tran’s claimed address in Yagoona. At [33] the Tribunal recorded that it discussed the 2013 interviews “in some detail” at the Tribunal hearing of 31 January 2018. At [34] through to [41] the Tribunal then sets out and comments on the discussions the Tribunal member had about details of the 2013 site visits with Ms Tran and with Mr Truong in oral evidence.
At [38] the Tribunal explained that the issue of interpretation was raised by Ms Tran and Mr Truong as a significant factor in creating misunderstandings between the departmental officers’ account and their own and that of Ms Tran’s sister in 2013, and notes that there is no evidence of any request for an interpreter in the departmental officers’ notes. At [39] the Tribunal rejected the assertion that the parties were hampered by lack of an interpreter during the 2013 site visits (noting that there was no interpreter), discussed some contradictions in their oral evidence at the 2018 oral hearing, and at [41] the Tribunal stated that it “considers the above matters concerning the nature of their claimed household both individually and collectively strongly suggest that the Applicant and sponsor were not living together at the time of the interview with the departmental officers and had not been doing so for some time.”
At [43], in a somewhat muddled paragraph the Tribunal raised with Ms Tran Mr Truong’s study (meaning Ms Tran’s study) during the period when they married and subsequently after, that is, in January 2011, and what was reported at the 2013 site visits. The Tribunal questioned both Mr Truong and Ms Tran on matters relating to his lack of knowledge of the sponsor’s (sic) study and after considering Ms Tran’s explanation of discrepancies at the 31 January 2018 hearing, the Tribunal “notes that the Applicant and sponsor claim to be cohabiting at the time the Applicant commenced this course [accounting course]. They were just married. The Tribunal is not satisfied with this explanation for the discrepancy and evidence between the parties, and considers it implausible.”
On the issue of claims as to the housework made by Mr Truong and Ms Tran, the Tribunal found at [44] that there was little corroborative evidence to substantiate their claims, and it is relying entirely on the testimony of Ms Tran and Mr Truong.
At [45] the Tribunal noted the oral evidence of the parties and previous statutory declaration from Ms Tran’s sister that Ms Tran assists with the care of her sister’s children, and the Tribunal found it was satisfied that Ms Tran does provide some care and support for her sister’s children, and finds however, that there is little evidence that this care is being carried out jointly by Ms Tran and sponsor. It is unclear whether the Tribunal here is referring to current activities of the parties or the situation in August 2013.
At [46] to [48] (noting emphasis that Mr Poynder gives to the text below) the Tribunal said as follows:
[46]The Tribunal notes the submissions that have been previously made to the Tribunal and the department by both the applicant, sponsor and the applicant's sister to explain the various deficiencies in evidence concerning the nature of their household that arose out of the [2013] site visits by the Departmental officers. The Tribunal notes that these submissions have been drafted to specifically address and comment on the adverse findings of the Department and to assist the application before the Tribunal. The Tribunal is more inclined to accept the contemporaneous evidence that was obtained at the site visit by the Departmental officers when it is in conflict with submissions that have been prepared subsequently in response to those findings. The Tribunal notes the advocacy of the applicant's representative who pointed out at the hearing the Departmental officers account of the interviews undertaken and their investigations were written rather than recorded and urged the Tribunal to take this factor into account. The Tribunal accepts that the record of the interview between the Departmental officers and the sponsor and the applicant's sister is an accurate record of the event. There is no record before the Tribunal of any complaints being lodged concerning the actions or behaviour of the Departmental officers. The Tribunal finds no reason to doubt or provide lesser weight to the testimony of the Departmental officers in this particular matter.
[47] The Tribunal accepts that there is a range of documentary and corroborative evidence as well as consistent oral evidence that has been submitted by the applicant and the sponsor concerning their household in recent times. Nevertheless the Tribunal on the evidence before it remains unconvinced that the applicant and sponsor lived together previously. The Tribunal is of the view that the joint household they claim was established following the visit of the departmental officers and has been established for migration purposes.(emphasis added)
[48] The Tribunal finds that it is not convinced that the applicant and the sponsor had established a household in any consequential way at the time of the visit of the Departmental officers or on the evidence earlier. The Tribunal is not convinced that the applicant and sponsor lived together prior to the Department's site visit. The Tribunal finds it is not satisfied that the nature of the household is indicative of a genuine spousal relationship. The Tribunal places significant weight on this finding. (emphasis added)
Social aspects of the relationship
At [50], the Tribunal noted that no photographs beyond 2015 were submitted by Ms Tran. At [51] it described the parties’ evidence of their joint activities and described their evidence as “extremely vague as to any activities they undertook either as a couple or with friends.” Although the Tribunal noted and accepted that the parties travel to Vietnam generally every year, it observed that little information was provided as to what they do together in Vietnam. It found, “There is little evidence of the Applicant and sponsor planning and undertaking joint social activities.”
Recognising that the parties had submitted declarations dated August 2016 from friends and work colleagues of Ms Tran’s, and their opinion that the parties were in a married relationship, it considered that the four statements submitted contained “a wide range of similarities in statements in style and grammar.” That was, in its opinion, “beyond coincidental”, which led the Tribunal to, “question whether they have been drafted by the same individual”.
As to earlier statements submitted to the Delegate from Mr Truong’s parents and Ms Tran’s sister, the Tribunal found that these statements collectively lacked detail as to why the relationship between the parties is genuine and continuing. The Tribunal concluded at [53]:
The Tribunal finds that the sponsor and applicant are well known to each other and have spent time together over the years, including trips to Vietnam. The Tribunal finds that the applicant and sponsor have represented themselves to other people as being married to each other. The Tribunal finds that at some point in the relationship the sponsor and applicant were undertaking joint social activities. The Tribunal finds that that the relationship does enjoy some level of social recognition.
Nature of persons’ commitment to each other
At [55] the Tribunal remarked that the parties exhibited to the Tribunal:
a consistent, though very general, narrative concerning their relationship and the nature of their commitment to each other.
It noted Ms Tran’s claim that they had lived with each other the whole time since 2010, but found:
the evidence of the companionship and emotional support they draw from each other to be limited.
At [56] the Tribunal considered it unusual that there was a lack of any evidence of communication between the parties, especially when each claims to work long hours, over such a significant timeframe. The Tribunal, at [57], recorded its finding that Ms Tran had a sound knowledge of the sponsor’s various family members and the parties were consistent as to what they had purchased each other at their recent birthday. They were consistent about each other’s health.
At [58] the Tribunal recognised that the parties had established a private health insurance together, but noted that the policy was only established in 2015, five years after the marriage. The couple stated that they previously were young and happy and healthy and they did not need health insurance. The Tribunal considered the timing of the decision to procure joint private health insurance “curious” and found it:
more likely that the policy is taken at the time Ms Tran’s permanent visa application was being considered by the delegate, rather than as evidence of a commitment of the parties to a genuine spousal relationship.
The Tribunal again returned to the 2013 site visits, and continued at [59] and [60] (emphasis as drawn by Mr Poynder, additional underline emphasis by the Court):
[59] The Tribunal is mindful of the sponsor's lack of knowledge about the applicant when visited by the Departmental officers in July 2013. Nevertheless the Tribunal finds that the sponsor and applicant have remained married now for over seven years and acknowledges their claim that they see their relationship as a long-term one. The Tribunal finds that there has been a relationship between the applicant and sponsor for a considerable period of time. The Tribunal remains however dubious as to the degree of companionship and emotional support they provide each other. The Tribunal also finds that it is unconvinced on the evidence that the applicant and sponsor have lived together for the length of time they have claimed. Having had regard to the evidence before it concerning the claimed duration of the relationship; the length of time the applicant and sponsor claim to have lived together and the degree of companionship and emotional support they claim to draw from each other, the Tribunal is not satisfied that it supports a finding that the applicant and sponsor are in a genuine spouse relationship. (emphasis added)
[60] On the basis of the above evidence, the Tribunal finds that the applicant and the sponsor did not have a genuine mutual commitment to each other at the time of decision.
Under the subheading ‘Conclusion’, the Tribunal concluded at [61] and [62] as follows (emboldened emphasis on text placed by Mr Poynder, additional underlined emphasis by the Court):
[61]The Tribunal is unconvinced on the evidence before it that the applicant and sponsor lived together in the past and at the time of the visit of the Departmental officers in July 2013. The Tribunal remains unconvinced that the applicant and sponsor established a joint household for the period of time they have claimed. The evidence before the Tribunal suggests that the claimed joint household of the applicant and sponsor was prepared specifically for the purpose of the applicant's visa application. The Tribunal also considers some of the documentary evidence provided in support of this application was also specifically manufactured for the purpose of giving the appearance of a genuine and continuing relationship. The Tribunal remains unconvinced that the applicant and sponsor neither lived together nor established a genuine joint household for the period they claimed. The Tribunal is not satisfied with the explanations that the applicant and sponsor have given for the significant contradictions in their own evidence with that of the departmental officers either previously to the delegate and Tribunal or to the Tribunal on this occasion. The Tribunal is of the view that the establishment of a joint household by the applicant and sponsor occurred after the visit of the departmental officers and after the rejection of their 801 visa application by the delegate.
[62] Having considered the evidence as a whole the Tribunal is unconvinced that the relationship between the review applicant and the sponsor meets the relevant criteria under the Act. Whilst the Tribunal concedes the parties are well acquainted, and the Tribunal accepts that the relationship between the applicant and sponsor has reasonable longevity and the parties have travelled together overseas and enjoys some social recognition, the Tribunal remains very concerned about the veracity of the explanations provided by the applicant and sponsor for the serious concerns that were documented by the departmental officers. The Tribunal was unable to be satisfied on the evidence presented that the parties are in a spousal relationship for the purposes of s.5F(2).
The Tribunal concluded its decision at [63];
On the basis of the above, the Tribunal is not satisfied that at the time of decision the review applicant and the sponsor had a mutual commitment to a shared life as husband and wife to the exclusion of all others and that the relationship is genuine and continuing. They therefore do not meet the requirements of s.5F(2)(b) and s.5F(2)(c) for a married relationship.
Submissions on the amended ground and consideration
Before the Minister (or his or her delegate) can grant a visa, he or she must be satisfied of various matters, including that there is compliance with relevant criteria prescribed by the Act or the Regulations. As observed by the plurality Kenny and Griffiths JJ (with whom Allsop CJ agreed) in Angkawijaya at [15], "the important point is that compliance with the prescribed criteria turns on the decision-maker's satisfaction as to whether or not the relevant criteria have been met and not on the objective existence of that fact".
The Minister’s submissions
Ms Rayment submitted that at paragraphs [11] and [12] of the Tribunal decision, the Tribunal set out the correct test and focused on the relationship being genuine and continuing. Ms Rayment submitted it was understandable that the Tribunal spent considerable time on the 2013 site visits but that it did not follow that it failed to consider and apply the proper test. She submitted that the Tribunal understood what it had to do. The complaint of Ms Tran - that the Tribunal focused too much on one aspect - is not borne out, and it does not follow that the Tribunal was diverted by the 2013 site visits from its statutory task. Ms Rayment pointed to the Tribunal’s consideration of the deficiencies in Ms Tran’s evidence regarding the nature of the household which stemmed from the 2013 site visits.
Ms Rayment submitted that the issue of the currency of the relationship was addressed by the Tribunal under each of the sub‑headings referencing a sub-paragraph of reg.1.15A(3). Ms Rayment submitted that fairly reading the Tribunal’s decision and the course of its reasoning at [45] through to [48], it is apparent that the Tribunal has reasoned as follows:
(a)it was more inclined to accept the contemporaneous evidence of the Departmental officers obtained at the 2013 site visits;
(b)when the contemporaneous evidence was in conflict with subsequent submissions, the Tribunal preferred the 2013 contemporaneous evidence;
(c)the Tribunal accepted a range of documentary and corroborative evidence and consistent oral evidence concerning the parties’ household “in recent times”;
(d)“nevertheless”, the Tribunal remained unconvinced that the parties “lived together previously”. It found that the joint household was established following the 2013 site visits of the Departmental officers and has been established for migration purposes.
Ms Rayment submitted that the Tribunal was concerned with the motivations and quality of evidence relevant to the nature of Ms Tran and Mr Truong’s household at the time of decision. Given that it did not accept that Ms Tran lived with Mr Truong prior to the 2013 site visits, and she submits, that that the evidence since then was contrived, it was open for the Tribunal not to be satisfied as it stated at [48]. As to the Tribunal’s statements at [59], it did not accept that the relationship was long term, and its conclusion thereafter was open to it. The use of the word “dubious” in [59] does not result in error.
The Applicant’s submissions
Mr Poynder submits that the Tribunal allowed itself to be diverted from a proper consideration of the requirements for “spouse” by two factors:
(a)first, the events that took place on the days of the 2013 home visits; and
(b)secondly, a concern that Ms Tran, whilst undoubtedly in a long term relationship with Mr Truong, might be in that relationship because of “migration purposes,”, being a desire to secure residency in Australia.
Mr Poynder submits that the Tribunal thereby was diverted from its task of determining whether, as at the date of the decision it made, Ms Tran was in a genuine and continuing spousal relationship with Mr Truong that satisfied the criteria in s.5F and reg.1.15A.
Mr Poynder drew the Court’s particular attention to the Tribunal’s reasons at [46] and [47], its finding at [48], and to its reservations at [59], emphasising the passages as I have indicated in the summary of the Tribunal decision (see above at [55], [63] and [64). Whilst the Tribunal at [59] there considered that the parties had remained married for over seven years, and that they saw their relationship as a long-term one, and observed that the couple had lived together for some five and a half years, he submitted that its reservation (remaining “dubious” as to the degree of companionship and emotional support they provide each other) derived from its view that the joint household, established since July 2013, was established for migration purposes (at [47]), which led to its finding at [48], and subsequently.
Consideration
The Tribunal made express and repeated mention of the 2013 site visits, and the Delegate’s, previous Tribunal’s and its discussion of those visits at the oral hearing on 31 January 2018, or conclusions from those visits variously at [10], [28], [29], [30], [31], [32], [33], [34], [35], [36], [37], [38], [39], [40], [41], [42], [46], [47], [48], [59], [61] in the Tribunal decision. It is apparent that the Tribunal was centrally focused on the 2013 site visits. The Tribunal also expressly referenced the historical circumstances of the 2012 dob-in adverse information (at [24] and [25]), and the concern it had with Mr Truong’s 2011 knowledge of Ms Tran’s study (at [43]).
Its view at [47] that the joint household claimed by the parties was established following the 2013 site visits and “has been established for migration purposes”, provided the basis for its finding at [48] where it stated, “the Tribunal finds it is not satisfied that the nature of the household is indicative of a genuine spousal relationship”. The Tribunal at [48] correctly says of itself that it “places significant weight” on that finding. Its consideration of the other relevant considerations listed in reg.1.15A(3) bears this out.
Although it recited that its task was to determine its state of satisfaction as to whether the parties were in a spousal relationship as at the date of decision, it was diverted from that task by its focus on the 2013 site visits and the migration purpose it discerned in the couple’s establishment of their joint household.
As the plurality of the Full Court said in Angkawijaya at [65], the determination of whether the decision-maker is satisfied is one which must be made as at the time of the decision and not by reference to some earlier point in time, such as when the parties embarked upon their relationship.
In Angkawijaya, the plurality there observed that so long as the relevant time is firmly kept in mind, the decision-maker could take into account, “together with all other relevant circumstances of the relationship, the motivation of one or both of the parties for entering into the relationship”, however “those motivations may change, and the critical issue is whether or not the administrative decision-maker is satisfied that the parties are in a genuine de facto [married] relationship as at the time of the decision.” As the plurality there observed, of the Tribunal’s observation of Ms Angkawijaya’s motivation, a motivation to remain in Australia is not “mutually exclusive” of an applicant being a genuine spousal or de facto relationship.
A fair reading of the Tribunal’s decision reveals that the Tribunal’s views as to the origins and purpose of the couple in establishing their joint household were central to, and determinative of, its finding of non-satisfaction as to the nature of the household as indicative of a genuine spousal relationship. Its reasons reveal that its consideration at [24] to [46] on what it discerned were the timing and motivations of the couple historically, its views expressed at [47] and its conclusions at [48] that the parties only subsequently set up a joint household and that they did so for migration purposes stemmed from its understanding and application of the legislative requirements. Its reasoning discloses that it held a belief that the relevant legislative provisions made the historical circumstances, timing and originating motivation for the establishment of a joint household by the parties a fundamental, if not determinative issue. This led it to consider subsequent joint household, and joint social, and financial aspects of the relationships, and the nature of the couple’s commitment, through the prism of that belief.
Its reservations at [59] as to the degree of companionship and emotional support that the couple provide to each other, and its finding at [60] that the couple did not have a genuine mutual commitment to each other at the time of decision arise directly from the Tribunal’s belief that the historical motivations of the couple in establishing a joint household were a determinative issue.
Accepting Ms Rayment’s submission that the weighing of evidence is a matter for the Tribunal, and that there is a distinction between a long‑term relationship and the statutory test, I consider that the Tribunal’s finding that, as at the 2013 site visits, the parties were not living together, and that their subsequent joint household arrangements were established for migration purposes, led it to misdirect itself and that as a consequence, it failed to address the statutory test.
I accept Mr Poynder’s submission that the Tribunal accepted that the joint household claimed by the parties was established as at the date of the decision, but that the Tribunal was of the view it had been established for migration purposes, and that view led it to misdirect itself.
I conclude that the Tribunal misconstrued the meaning of “spouse” and so misapplied s.5F of the Act, and reg.1.15A. Its emphasis on the 2013 site visits, and the household relationship developed thenceforth as being established for migration purposes, diverted the Tribunal from its proper task of focusing on its state of satisfaction as to the parties’ relationship as at the date of its decision, which relationship as a genuine spousal relationship meeting the legislative criteria, whilst taking into account its origins and its purposes, was not rendered incapable by the circumstances of the 2013 site visits, and the subsequent establishment of the joint household for a migration purpose.
That the Tribunal took into account its findings regarding other aspects of the couple’s relationship does not derogate from the fact that it also considered that their claimed joint household was established following the 2013 site visits and not previously and was established for migration purposes indicated that theirs was not a genuine spousal relationship as at the date of decision. Adopting what the plurality said in Angkawijaya at [62], I consider that the Tribunal’s error in the present case was not to impose a value judgment, but rather was to misconstrue and misapply the relevant provisions by proceeding on the basis that, for a partner visa to be granted, it must be satisfied that the couple had lived together for the whole of the period they claimed and that the joint household did not originate for a migration purpose.
Diverted from its proper task by its focus on the historical timing and its view of the reasons for Ms Tran’s establishment of a joint household with Mr Truong, the Tribunal misconstrued and misapplied the legislative provisions and so fell into jurisdictional error.
Conclusion
For the above reasons, I allow the application. It follows that Ms Tran is entitled to her costs.
I certify that the preceding eighty-five (85) paragraphs are a true copy of the reasons for judgment of Judge Baird
Associate:
Date: 26 March 2019
Key Legal Topics
Areas of Law
-
Immigration
-
Administrative Law
-
Statutory Interpretation
Legal Concepts
-
Judicial Review
-
Procedural Fairness
-
Jurisdiction
-
Statutory Construction
-
Natural Justice
-
Standing
0
4
3