Tran v Minister for Home Affairs

[2018] FCCA 3631

FEDERAL CIRCUIT COURT OF AUSTRALIA

TRAN & ANOR v MINISTER FOR HOME AFFAIRS & ANOR [2018] FCCA 3631

Catchwords:
MIGRATION – Review of administrative appeals decision – whether decision affected by jurisdictional error – jurisdictional error not established – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.376, 359A, 359AA

Migration Regulations 1994 (Cth), reg.1.15A(3), cl.801.221

Cases cited:

He v Minister for Immigration and Border Protection [2017] FCAFC 206

First Applicant: THI THAO TRAN

Second Applicant: VY THUY TRAN LE

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 285 of 2018

Judgment of: Judge Vasta

Hearing date: 9 November 2018

Date of Last Submission: 9 November 2018

Delivered at: Brisbane

Delivered on: 9 November 2018

REPRESENTATION

Counsel for the Applicant: Mr L. Boccabella

Solicitors for the Applicant: T LAWYERS

Counsel for the First Respondent: Mr J.D. Byrnes

Solicitors for the First Respondent: SPARKE HELMORE

ORDERS

1. That the Application filed 20 March 2018 is dismissed.

2. That the Applicant pay the costs of the First Respondent fixed in the sum of $7,467.00

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 285 of 2018

THI THAO TRAN

First Applicant

VY THUR TAN LE

Second Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

1. By application filed on 20 March 2018, the applicant Thi Thao Tran and her dependant Vy Thuy Tran Le have asked this Court to review a decision of the Administrative Appeals Tribunal (“the AAT”) that was given on 21 February 2018.  That decision itself affirmed a previous decision of the delegate not to grant the Applicants partner visas. 

2. The First Applicant, Ms Tran, is the main Applicant.  The Second Applicant, Ms Le, is her daughter who seeks, in effect, a visa as a family member of the main Applicant.  The Tribunal was looking at the delegate’s decision; the delegate having not been satisfied that the Applicant was the spouse of the sponsor.

3. The Applicant is a 58 year old woman from Vietnam.  The secondary Applicant is her 18 year old daughter.  The sponsor, Mr Rudolf Bosati, is an 82 year old citizen of Australia. 

4. The Applicant had been granted a subclass visa on 9 August 2012 and the department requested documentation in relation to the subclass 801 visa on 17 February 2014.  The response was provided on 14 May 2014 and 16 June 2014. 

5. In February 2015, the Applicants appointed a new migration agent who advised the department that the primary Applicant’s application with the sponsor had ceased and that she would be submitting claims of family violence.  The delegate’s decision was made in April 2015 and the finding was that the Applicant was not the spouse of the sponsor. 

6. It is trite to say that the finding must be made that the Applicant and the sponsor were in a genuine spousal relationship before it is that the delegate and then the Tribunal could look at claims of family violence. 

7. The matter had gone before the Tribunal on, it would seem, a number of occasions.  There was to be a hearing on 2 March 2017 but because Mr Bosati was of ill health and Ms Tran was facing some psychological issues, the hearing was adjourned. 

8. There was then a further hearing on 26 June 2017.  On this occasion the Tribunal had asked a number of questions about the relationship.  On that day, the Applicant spoke about the relationship and the fact that they married and that it was a genuine marriage. 

9. The Tribunal then said at paragraphs 25 and 26:

   25. The Tribunal explained to the primary applicant that from time to time the department receives information related to visa applications before it.  In this case the dependant has received some such information which is subject to a s.376 certificate.  The effect of a s.376 certificate is that the Tribunal is given a discretion as to whether to disclose the documents and information to the applicant. 

   26. The Tribunal explained that in this case it considered the certificate valid and provided a copy to the primary applicant’s registered migration agent, and asked her if she wished to make submissions regarding it to the Tribunal.  She did not make submissions.  The Tribunal formed the view that the material was relevant, and put the gist of it to the applicant pursuant to s. 359AA of the Act. The Tribunal told the primary applicant that on two occasions there had been anonymous reports that the relationship was contrived, that the primary applicant had threatened the sponsor that she would make false police complaints, and that she had paid for the relationship to achieve permanent residency.

   27. The primary applicant’s response was that her marriage was real, and that she and her husband loved each other. 

10. The Tribunal acknowledged that the Applicant that there was family violence that was perpetrated upon her; talking about the sponsor drinking and sitting down and verbally abusing both her and the daughter, that the sponsor would threaten that he would hit the Applicant or send her back to Vietnam, and that the sponsor used to grab her arms and punch her in the face and that she would call out to the daughter, and when the daughter would come out, that the sponsor stopped. 

11. The primary Applicant said that the sponsor was not doing anything now because he was out of hospital, he had heart surgery and his lungs had been affected.  The Tribunal asked her what contact she was having with the sponsor now, and she said that she had gone to the hospital with the sponsor a few times recently and he comes to her sister’s place and threatens to go to the police to find a way to send both her and her daughter back to Vietnam.

12. She said that the sponsor had apologised and said he would not behave like that anymore, and that the sponsor had asked the Applicant’s brother and the family doctor to ask her to come back and care for him.

13. She told the Tribunal, at that time, that she asked the support worker to try and organise a meeting with her and the sponsor at the house because she feels sorry for the sponsor because he is sick, but she does not feel sure that she is safe with him.  The Tribunal asked her how does she feel unsafe with the sponsor, and she said she is reluctant to answer, but eventually said that the sponsor prevented her from making contact with the family.

14. The Tribunal asked her, if that was the case, why was the brother urging her to go back to the sponsor?  And she said that the sponsor kicked her and the daughter out of the house and her brother no longer thought that the sponsor was a good person, even though the sponsor was still asking the brother to persuade her to go back to him.

15. She described the sponsor’s behaviour, including swearing and yelling at her on a daily basis using the F word, and she did not know much English but the sponsor used to wave his fist in her face indicating he was angry.  He used to kick and threaten her, and that she would call out for her daughter, and when the daughter would come, the sponsor would stop.

16. It was then that the Tribunal heard evidence from the daughter.  The daughter gave a totally different story, saying that they were actually living with the sponsor, and that they moved back in with him. She said that they had returned to stay there overnight, and that she, the daughter, had only lived with the sponsor after the first month because she was worried about the mother. 

17. Again, then, the Tribunal put to the primary Applicant that it had concerns over her credibility.  She said to the Tribunal that she was not a liar.  She concluded her evidence by saying that the sponsor is abusive because he knows that she does not have paperwork.  The Tribunal asked the Applicant’s migration agent whether she had anything further she wished to raise and she declined to do so. 

18. The Tribunal concluded hearing that day and said it would consider the evidence it had heard and decide whether a further hearing was necessary.  If it did that, it would invite the Applicants to attend. 

19. Two days later, the Tribunal received a letter from the primary Applicant which is a lengthy letter that I will not read totally into the record.  However, it started:

    Today I would like to write a letter from the bottom of my heart to apologise to you on the matter that happened on my AAT Court on the 16^th June, 2017. I did not inform you as well as my legal agent – Taya Hunt the fact that my daughter and I moved back in to live my ex-husband. 

    …

    I’m sorry that I lied to you about this incident and beg your mercy to forgive me. I know that I lost credibility from you because of this. However, one thing that I wish you to believe in me that my relationship with Rudolf is genuine, though I used to live for over three years of marriage in fears with him.

20. The third hearing was conducted on 11 September 2017 and the Applicant gave evidence again that she and the sponsor are a couple; that at the second hearing, she was very confused and so did not tell the truth, and she was also still very scared of him; that she felt like she should return to care for him when she received his medical history. When asked when that date was, she said she could not remember.  When again asked about the date, when did she feel like she should return to the sponsor, she said that it was the first hearing, that is, 2 March 2017.

21. She denied that she had given false information apropos of the evidence that she had given at the second hearing, and she apologies for doing so.  She said she did not tell the truth then, but then went to the psychologist and explained about herself and the sponsor.  And she said there is a relationship between her and the sponsor and the daughter, and she reminds the sponsor to take his medication.  She looks after him when he has his attacks, and she makes him soup, and that he could feel tired at any time.

22. When asked about family violence, she now denied that he had ever hurt her. The Tribunal then put to her the previous evidence and said that it had difficulty with her credibility. The Tribunal then revisited the anonymous allegations in the s.376 certificate, and pursuant to the provisions of s.359A, the Tribunal put the information to her. She denied those allegations and said that she had not paid any money other than application fees for the visa.

23. She spoke a bit more about what it is that she does with the sponsor and she said that she was talked into the family violence claim by people from Vietnam who are very bad because they thought she would have a better chance with someone else. 

24. The sponsor also gave evidence.  He said that he wanted the primary Applicant to stay here because “she’s different now”, and that he “has taught her and her daughter how to do it the right way and not the wrong way”.

25. The sponsor said the whole problem had been caused by Centrelink and that if the primary Applicant did not stay, he did not know what would happen if his heart fails; nor does he know what will happen to the new appliances including his carpet and the air conditioner.

26. The AAT then had to look at whether the parties were in the spousal relationship and it looked at the matters that are required in reg.1.15A(3). It found that the parties were validly married. It looked at the financial aspects of the relationship and found that the evidence regarding those aspects were slim, and where it exists, to be internally inconsistent and contradictory, and therefore the Tribunal placed little weight on it.

27. It looked at the nature of the household and came to the conclusion that, given the internal inconsistencies in the evidence of the primary Applicant and the contradictory nature of the evidence of the parties generally, the Tribunal placed little weight on the evidence of the nature of that household. 

28. As to the social aspects of the relationship, the Tribunal said that it placed little weight upon the evidence as to the social aspects of the relationship. 

29. As to the nature of the persons’ commitment to each other, the Tribunal said whatever the nature of the relationship, the Tribunal was unable to ascertain any degree of companionship or emotional support the parties draw from each other:

    The primary applicant may well act as a carer for the sponsor, but there was no evidence of shared interests, values or views.  Accordingly, the tribunal places little weight upon the nature of the persons’ commitment to each other.

30. The Tribunal then spoke of the issue of credibility and the inconsistencies.  At paragraph 81, the Tribunal said that it considered that the acknowledged duplicity of the primary Applicant about matters central to her claims make it difficult to accept any of her evidence is truthful, and accordingly has doubts about it all.

31. At paragraph 82, the Tribunal said it did not consider the primary Applicant to be a witness of credit, that the Tribunal was not satisfied she was told the truth or explained the many inconsistencies in her story satisfactorily.

32. Further at paragraph 83, the Tribunal said:

    83.Whilst ordinarily the Tribunal would not give weight to anonymous third party “dob-ins” sent to the Department, in this instance the Tribunal places some weight upon them, as the allegations contained therein are consistent with a contrived relationship for immigration purposes, which is what this relationship appears to be based on the evidence before it.

    84. Taken overall, the Tribunal does not consider the circumstances of the relationship including those listed in r.1.15A(3) support the parties being in a genuine and continuing relationship with a mutual commitment to a shared life together. 

    85. In this regard, the Tribunal has to query, if the relationship had been a genuine a continuing one as envisaged by relationship 1.15A why the sponsor would have considered he needed to teach the applicant and her daughter how to behave.  The relationship, if it was entered into as a genuine and continuing one, would have meant the parties would have shared with one another their expectations of marriage, particularly with respect to financial arrangements and contact between the applicant and her extended family. 

33. The Tribunal ended up concluding:

    90. On the basis of the evidence, the Tribunal is not satisfied that the applicant and the sponsor were ever in a genuine and continuing spousal relationship…

34. The grounds of the application to this Court were somewhat jumbled and did not make much sense until Mr Boccabella today gave some form of colour to them.  The main complaints were these, and I will take them in really some order of seriousness. 

35. The Tribunal had, in that final paragraph, said:

    The Tribunal therefore finds that the applicant does not meet cl.801.211 at the time of the application and cl.801.221(2), at the time of decision. 

36. Mr Boccabella submits that cl.801.211 does not exist and because the Tribunal had talked about “that the Applicant did not meet that at the time of the application”, submits that one could assume then that the Tribunal was distracted by an irrelevancy and had misapplied its attention. 

37. I do not find any merit in that submission. In the end, whether cl.801.211 existed or not really does not matter. In the end, what the Tribunal had to do was to look at whether cl.801.221(2), was satisfied as at the time of the decision. It made that decision. That was all it was meant to do. There is no evidence that it had, in any way, been distracted.

38. Regulation 1.15A gives quite a number of criteria that need to be looked at.  Since the decision of He v Minister for Immigration and Border Protection [2017] FCAFC 206, the Tribunals have been required to examine all 15 subcategories under that regulation and they must make a finding on all of those matters. However, even if the Tribunal does not specifically make a finding on each of those matters, one can look at whether or not there has been findings made that can be inferred.

39. In this decision, because of the findings as to credibility, it is very easy to infer that the findings that were to be made have been made. This is consistent with what is required pursuant to the ratio decidendi in He (Supra).

40. The Applicant has said that the findings are unreasonable and took the Court through a number of the aspects dealing with the findings on the four major areas under reg.1.15A and spoke of the conclusions being unreasonable. 

41. When one actually goes through, as I have, and dissects what the Tribunal has actually done and the evidence that it considered, the conclusions that were made in regard to those aspects were open on the evidence.  It does not seem to me that it could be said that the findings were legally unreasonable because the conclusions were actually open.

42. The Applicant focused on the matters that were in the certificate. The complaint was that s.359AA was not complied with. That provision says that:

    Information and invitation given orally by Tribunal while applicant appearing

    (1)  If an applicant is appearing before the Tribunal because of an invitation under section 360:

    (a) the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

    (b) if the Tribunal does so—the Tribunal must:

    (i) ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and

    (ii) orally invite the applicant to comment on or respond to the information; and

    (iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and

    (iv) if the applicant seeks additional time to comment on or respond to the information—adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.

    …

43. It was submitted to me that the Tribunal did not do that in this case. What was given to me was the transcript of the hearing on 11 September 2017. What was said to me there is that the Tribunal read out the provisions of s.359AA and in effect said this:

    The information that I will tell you is information that would, subject to your comments or response, be the reason or part of a reason for affirming the decision under review to refuse to grant the visa.  It doesn’t mean that I’ve made up my mind.  I will explain the information and its relevance and ask if you wish to comment or respond.  You’re entitled to seek additional time for comment or to respond to the information.  If you seek additional time, you should let me know and I will consider your request.

44. Now, I have read that fully but, in the hearing, it was broken up into bite-sized pieces which were all interpreted.  As soon as the final conversation was interpreted, that part that said, “You should let me know and I will consider your request,” the interpreter replied:

    I wish to request more time to respond on the basis of Rudolf and myself.  We are both very poor, we are together out of love and not out of any financial gain.

45. The Tribunal said:

    So you don’t even know what the information is yet and you want to ask for extra time to respond?  Is that right?

46. The answer, after interpretation, was:

    I don’t know.

47. The Tribunal said:

    All right.  Well, I will tell you what the information is and then you can tell me whether you need extra time.

48. The Tribunal then started with the information and it was interpreted into the bite-sized pieces.  As it was interpreted, the Applicant simply answered.  For example, at paragraph 406, it reads:

    The allegation says this.  This allegation was made some time ago but it says you paid him money to have a fake marriage so you could stay in Australia. 

1. That was interpreted and the response was, “It’s not true, no.”  And the Tribunal said, “Well, we will keep going with it.”  And then, “It says that you tried to do the paperwork with Sam Nguyen.”  That was interpreted.  The information went on, “To bring two daughters who still reside in Vietnam.”  That was interpreted.  And the answer, straight away, was, “No, there is just one daughter who is left behind.”  This continued for some time. 

2. The complaint here is that the Tribunal did not give the Applicant the time to orally invite her to comment or to say that she may seek additional time.

3. The Tribunal had already done that and it was the Applicant herself who made the answers after being told already that she could seek the time once the matter was read to her.  It seems to me that that complaint has no real merit because the Applicant herself has chosen to respond. 

4. The next part of the submission, which was an extremely attractive one at first glance, was that the s.376 certificate was actually invalid. If one looks at the s.376 certificate, which was at page 173 of the court book, the face of it says:

   I notify the Migration Review Tribunal that s376 applies to the documents, any matter contained in the documents or information contained in folios 115, 125-12 of the file number CLF2012/90817 because it was given to the Minister, or to an officer of the Department in confidence, section 375A does not apply.

   …

   As disclosure of the identified material is subject to the Migration Review Tribunal’s discretion, I provide the following advice in relation to its significance:

   (a) folios 115 and 125 -128, contain anonymous information provided by a third party.

5. On the face of it, the certificate looks as though it has identified the information and has said this and it has been certified by a delegate.  However, it has been rightfully conceded that the certificate was, actually, invalid.  The information was not given to the Minister or to an officer at the department in confidence; therefore, it was material that was in the Tribunal’s possession and there is no reason why it should not have been given to the Applicant.

6. The information in it is quite succinct.  It says that:-

   The Applicant and the daughter currently reside at 68 Skylark Street, Inala.  The Applicant has paid the sponsor some money to do a fake marriage in order for her to remain in Australia.  The Applicant has tried to do paperwork with Sam Nguyen (barrister), located in Inala, to bring her two daughters who still reside in Vietnam. The Applicant has threatened the sponsor on many occasions that if she does not get her PR, she will go to the police in the Vietnamese community to accuse and allege that he has physically abused her and sexually abused the stepdaughter, the Second Applicant.  This marriage was set up by the Applicant’s elder sister, who was an Australian citizen.  She is known by the name of Ngoc.  Ngoc has arranged for another sister and brother-in-law to come over on carer’s visas when her and her husband do not, in actual fact, need it.  Ngoc has also arranged a fake marriage for her brother so that he and his son can stay in Australia permanently. The costs of these fake marriage are 80k.  The paperwork has been done through Sam Nguyen.  He has been paid handsomely.

7. The material, as I say, should have been given to the Applicant.  The complaint made by Mr Boccabella is that if that information had been made available, then the Applicant would have known straight away that she actually does not have a sister called Ngoc.  That was made as a positive submission to me today and if the information about Mr Nguyen had been available, the Applicant could have had an adjournment and gone to get information from Mr Nguyen that would show that such information was false.  Given that the Tribunal has actually relied upon this information, Mr Boccabella submits that the Tribunal has been unfair.

8. As attractive as that submission would seem, if that submission were telling the correct facts, it would militate towards there being unfairness, and because the actual fact was that the certificate was invalid and the material should have been before the Tribunal, a jurisdictional error would have been able to have been established fairly easily.  That is because the unfairness by the failure to give the documents was self-evident.

9. But that would be to ignore what had happened at the hearing on 26 June 2017, some two and a half months before the maligned interview.  At page 24 of the transcript of that interview, it can be seen that the Tribunal had, as it had said at paragraphs 24 and 25 of its reasons, gone through the information.  At that time, the Applicant was legally represented.  At paragraph 423, the Tribunal says:

   FM:…Okay, so I think what I might do next, Ms Hunt there is a 376 certificate on the Departmental file, which I will give to you in order to make submissions about it if you wish.

   XH: Okay, you’ll give us a new…

   FM: Yes, yeah I’ve got a discretion to disclose the information or the gist of the information. And the information is that the Department has received anonymous, or information from someone who wishes to be anonymous, on more than one occasion, that Mrs Tran paid for the visa, paid Mr Bozsity, why I can’t pronounce that, I do know why, it’s incorrectly spelt in here, to enter into a fake marriage, and that she’s made some threats against Mr Bozsity that she’ll go to the police and accuse him of abusing, sexually abusing Ms Le, and that she’s been involved in, I’m sorry, the marriage was set up by her older sister, who’s an Australian citizen who is known by the name of Ngoc, I might not be pronouncing that correctly.

   XH: Ngoc.

   FM: Ngoc, I beg your pardon. You might like to?

   INT: I will, the whole lot? Yes interpreting the whole lot.

   FM: Yeah I should have gone more slowly.

   The interpreter said he was taking notes and the Tribunal continued:

   FM: You’ve been able to, there’s a little bit more, then I might tell you all of it and then you can, okay. And that Ngoc has also arranged for another sister and brother-in-law to come over on carer’s visas and that she has arranged a fake marriage for her brother. That the cost of the fake marriages are $80,000 and that the paperwork has been done through Sam Nguyen. So that’s the sort of allegations. 

10. Whilst the material was not given to her in written form, it was read out to her, it was done so in bite size pieces, it was done by an interpreter, who was taking notes.  The Tribunal then said:

    FM: Now I do not want Mrs Tran to comment yet, because I will deal with that on a 359AA basis with her. So that’s for your benefit in terms of commenting on the certificate.

    XH: Can I just clarify, so you said that the Immigration Department has received by anonymous sources, info on more than one occasion, what does that mean?

    FM: At least twice.

    XH: And by two, well it’s anonymous…

    FM: It is not clear. And you know that of course also goes to the weight that I might be prepared to place on it, the fact that the sources wish to remain anonymous.  But I still want to hear your submissions on the certificate and then I’ll hear, I’ll take Mrs Tran through the 359AA provisions in relation to it.

    XH: I would need to speak, this is absolutely the first I’ve heard of it, and I would need to speak to Ms Ngoc before making any substantive submissions.  I guess we would emphasise that these are anonymous sources …

    FM: Yes.

    XH:…and you know there’s family violence that characterises this relationship and it’s not unusual for in (ui) experience, it’s not unusual for these sorts of things to be told to the Department and they have no substantive basis generally.

    FM: Okay. Well I might go through 359AA, it is a little bit difficult, because I’m telling you the information and then having it translated for Mrs Tran’s benefit. But Mrs Tran I will give you some information.

    That was gone through in bite size pieces, especially at paragraph 469 and that

    FM: the marriage was arranged by your elder sister Ngoc

    FM: Ngoc has arranged for other visas for other members of your family. 

    And after all that information, the interpreter then said:

    INT: Yes, can I answer now?

    And the Tribunal said:

    FM: You are more than welcome to answer now, but I want to make sure, particularly in your circumstances, that you feel comfortable to do so. So if you want to have a break or chat to Ms Hunt, you’re more than welcome to.

11. The response then was:

    INT: My marriage was real…

    INT: We love each other, that is why we come together, it wasn’t arranged by anyone. 

    FM: Okay that’s fine, I just wanted to make sure that you felt like you had any time you needed with your representative if you wanted to. 

12. And the Tribunal then asked the legal representative:

    FM: Okay. So when, did you want to make any submissions on the certificate beyond what you’ve made?

    XH: No.

13. And then another topic was gone into. The information was given to the Applicant. The Tribunal hearing was adjourned after that day. The Applicant saw fit to write to the Tribunal and to say that she was sorry for lying for material that she said later (relating to contact with the sponsor), but she did not make any attempt to correct anything that was in the information given to her, pursuant to s.359AA.

14. Especially, she did not say anything of the sort that she did not have a sister, Ngoc.  She simply wanted to reiterate that her story was correct. 

15. There was no attempt then made between June and September to get any information about the person, Ngoc, and there was no attempt to get information from Mr Nguyen about being paid $80,000. 

16. The Tribunal did not need to revisit that information, but on the hearing of 11 September, it did so in any event because it was being fair and making sure that, in the meantime, there had not been anything that the Applicant wanted to say about any of that material.

17. For there to be a positive submission given to me, on instructions, today that the Applicant is now saying that she does not have a sister called Ngoc when she was given ample opportunity to do so in June and then the months between June and September and failed to do so, makes the submission both mischievous and one upon which I can put absolutely no reliance. 

18. Therefore, looking at this aspect overall, I cannot see that there has been a failure to act in a way that is fair and just.

19. Because of that, I do not find that there is a jurisdictional error.  I, therefore, dismiss the application and order that the Applicant pay the Minister’s costs in the sum of $7,467.

I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date: 10 January 2019