Tran v Minister for Immigration
[2007] FMCA 73
•30 January 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| TRAN v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 73 |
| MIGRATION – Partner visa – Migration Review Tribunal – whether jurisdictional error. |
| Migration Regulations 1994, Regulations 100.221(2)(b), 1.15A Migration Act 1958, ss.357A, 359A |
| Tran v Minister for Immigration & Anor [2006] FMCA 961 SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162 |
| Applicant: | HUU PHUOC TRAN |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File number: | MLG 312 of 2006 |
| Judgment of: | McInnis FM |
| Hearing date: | 20 October 2006 |
| Delivered at: | Melbourne |
| Delivered on: | 30 January 2007 |
REPRESENTATION
| Applicant: | In person (assisted by an interpreter) |
| Counsel for the First Respondent: | Ms S.A. Burchell |
| Solicitors for the First Respondent: | Australian Government Solicitor |
ORDERS
The Application be dismissed.
The Applicant shall pay the First Respondent’s costs fixed in the sum of $5,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 312 of 2006
| HUU PHUOC TRAN |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
In this matter, the Applicant seeks judicial review of a decision of the Migration Review Tribunal (the Tribunal) dated 2 February 2006.
The Tribunal in its decision affirmed a decision of a delegate of the First Respondent finding that the Applicant was not entitled to the grant of a partner (migrant) (class BC) visa (the visa).
In these proceedings, an application for summary dismissal by the First Respondent was refused on 26 June 2006 and the parties were then required to file and serve written submissions, with the First Respondent also required to file and serve a Court Book of relevant documents.
In its earlier decision (Tran v Minister for Immigration & Anor [2006] FMCA 961), the court was not satisfied that it was appropriate to summarily dismiss the application. On that occasion, the Applicant was self-represented though with the assistance of an interpreter. Unfortunately, the Applicant remained self-represented.
In considering the application for summary dismissal, the court considered detailed submissions of the First Respondent and concluded that the Applicant had an arguable case, and was otherwise satisfied it should not be concluded at an early stage, as it was not satisfied that the Applicant had no reasonable prospect of success.
It is now appropriate, however, to consider the material in further detail, though at the outset it should be noted that the Applicant, perhaps not surprisingly, indicated to the court that he had difficulty understanding the First Respondent's submissions. Accordingly, the application was stood down to enable the interpreter to interpret the First Respondent's submissions for the Applicant.
Unfortunately, it was clear that the Applicant was unable to provide the court with any clear submissions concerning the application, and expressed concern that he did not have sufficient funds to enable him to obtain legal representation.
The court was not prepared to delay the hearing any further, having regard to the history of the matter and that it was dealing with a decision of the Tribunal dated 2 February 2006. Having regard to the fact that a summary dismissal application had already been heard and determined in June, the court was not prepared to further adjourn the matter where it was clear that the Applicant did not have the capacity to retain the services of a legal representative.
Further discussion occurred concerning the claimed errors by the Tribunal, and the Applicant was only able to point out what he described as "a few mistakes". One included the Tribunal's finding that the Applicant had "four siblings resident in Melbourne, none of whom appeared as witnesses at the Tribunal to give evidence in support of the relationship" (Court Book p.109). The Applicant advised the court that he did not have any relatives in Melbourne.
After raising that issue, the Applicant then considered whether to continue with the application. Ultimately, the court was satisfied that the Applicant wished to pursue the application, and for convenience the court then indicated that it would hear submissions from the First Respondent's counsel, though the matter was further stood down to enable discussions to take place between the parties. After a further delay, it was indicated that the matter would proceed.
Background
The Applicant is a national of Vietnam and was born on 28 June 1966. He first applied for permanent residence on a combined application for a subclass 309 spouse (provisional) visa and subclass 100 spouse (permanent) visa on 30 July 2003. On 26 January 2003, the Applicant married his sponsor, Ms Thi Guong Lam (the sponsor) in Vietnam. The Applicant was granted a provisional spouse visa on 27 October 2003 and arrived in Australia on 30 October 2003.
In brief terms, the issue considered by the Tribunal in its decision was that the Applicant did not continue to be the spouse of the sponsor at the date of the decision and accordingly did not satisfy the requirements of Regulation 100.221(2)(b) of the Migration Regulations 1994 (the Regulations).
Legislative framework
The legislative framework is set out accurately in the First Respondent's contentions as follows:
“4.Item 100.221(2)(b) of Schedule 2 to the Regulations relevantly provides that the applicant meets the requirements if the applicant remains the spouse of the original sponsor at the time of the decision.
5.Regulation 1.03 defines “spouse” to have the meaning set out in regulation 1.15A. Relevantly regulation 1.15A(1A) provides:
Person are in a married relationship if:
(a)they are married to each other under a marriage that is recognised as valid for the purposes of the Act; and
(b) the Minister is satisfied that:
(i) they have a mutual commitment to a shared life as husband and wife to the exclusion of all others; and
(ii) the relationship between them is genuine and continuing; and
(iii) they:
(A) live together; or
(B)do not live separately and apart on a permanent basis.
6.Sub regulation 1.15A(3) provides that, in relation to applications for visas including a Partner (Provisional)(Class UF) visa, in forming an opinion whether two persons are in a married relationship, the Minister:
… must have regard to all of the circumstances of the relationship, including, in particular:
(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 party to the relationship owes any legal obligation in respect of the other; and
(v) the basis of any sharing of day-to-day household expenses;
(b) the nature of the household, including:
(i) any joint responsibility for care and support of children, if any; and
(ii) the parties’ living arrangement; and
(iii) any sharing of responsibility for housework;
(c) the social aspects of the relationship, including:
(i) whether the persons represent themselves to other people as being married or in a de facto relationship with each other;
(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;
(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 person have lived together; and
(iv) the degree of companionship and emotional support that the persons draw from each other; and
(v) whether the persons see the relationship as a long-term one.” (sic)
The Tribunal decision
As indicated, the Tribunal was not satisfied the Applicant was the genuine spouse of the sponsor. It reached that decision after considering oral and documentary evidence from the Applicant and the sponsor, together with evidence from the Applicant's employer and sponsor's cousin, the visa Applicant's employer and spouse of the sponsor's cousin, and two friends of the Applicant and the sponsor. It should also be noted that the Tribunal forwarded a letter dated 9 November 2005 pursuant to s.359A of the Migration Act 1958 (the Act) (Court Book pp.54-58).
The Tribunal acknowledged that it forwarded the s.359A letter in compliance with what it understand were its obligations arising from the decision of the High Court in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162. In passing, it should be noted that the s.359A letter was very detailed and appropriately complies with the relevant obligations of the Tribunal. It resulted in a very detailed reply on behalf of the Applicant by correspondence dated 13 December 2005 (Court Book p.82) together with a number of enclosures.
It is relevant to note that in its findings, the Tribunal states:
“69. In order to succeed in an application for a visa under the Regulations it is necessary for the visa applicant to satisfy all of the criteria for the grant of a visa. The relevant criteria that must be met for a subclass 100 visa are set out in Part 100 of Schedule 2 of the Regulations. Similarly, the relevant criteria that must be met for a subclass 110 visa are set out in Part 110 of Schedule 2 of the Regulations.”
The Tribunal then proceeded to consider the relevant criteria, and did so in great detail. Specifically, it considered the matters relevant in determining the spousal relationship including, the qualifying elements for a married relationship; the financial aspects of the relationship; the nature of the household; the social aspects of the relationship; whether the persons lived together or do not live separately and apart on a permanent basis; the nature of the persons' commitment to each other and whether the relationship is genuine and continuing; and whether there is a mutual commitment to a shared life as husband and wife to the exclusion of all others. The Tribunal also noted the application of sub-regulation 1.15A(5), which provides that living together at the same address for six months or longer "is to be taken to be strong evidence that a relationship is genuine and continuing".
The reference to the Applicant's siblings living in Australia and not appearing as witnesses before the Tribunal was dealt with by the Tribunal when it considered "the social aspects of the relationship". It is relevant to note the following paragraph, where the Tribunal considered that matter:
“101 The Tribunal observes that the parties claimed that their respective families are supportive of their relationship. The Tribunal has had regard to the fact that the sponsor’s cousin, Ms Thuy Thi Lam, and her spouse, Mr Thach Chi Nguyen, gave oral evidence in support of her relationship with the visa applicant. On the other hand, the tribunal also notes that the sponsor has four siblings resident in Melbourne, none of whom appeared as witnesses at the Tribunal to give evidence in support of their relationship. Nor have they provided statutory declaration’s attesting to their support of the visa applicant’s relationship with the sponsor. In addition, the Tribunal observes that the parties gave inconsistent evidence regarding when the parties last socialised with the sponsor’s siblings; the visa applicant said it was 1-2 months before the Tribunal hearing (September/October 2005) at a function held by the sponsor’s brother, whereas the sponsor stated that she last saw her siblings on 6 August 2005 for her younger daughter’s birthday. In response to this issue, the claim that the visa applicant last saw the sponsor’s brother at a birthday party 1-2 months before the hearing was repeated. The Tribunal gives some weight to this discrepancy in the evidence.”
When considering the social aspects of the relationship, it will be evident that the Tribunal not only referred to the Applicant's four siblings but also other evidence adduced by the Applicant at the hearing. It then proceeded to consider other material including photographs, and then concluded that:
“… having regard to the evidence before it, the Tribunal finds that at the time of the decision the social aspects of the couple's relationship are not particularly strong.”
The application
In the application filed on 2 March 2006, the grounds relied upon include what is claimed to be a lack of bona fides, failure to apply the criteria in Regulation 1.15A, and specifically an error in concentrating in its considerations on the findings of the delegate of two home visits in November 2004 "in circumstances following a temporary separation". The Tribunal erred, it was claimed, in failing to consider the provisions of Regulation 1.15A(3) of the Regulations "when forming an opinion as to whether the parties were in a married relationship at the relevant time".
The Applicant also claimed that the Tribunal had denied him procedural fairness by relying on irrelevant considerations, "in that there was no evidence or other material justifying any connection with the Applicant or the sponsor and the alleged activities of Ms Thi Thuy Tran and Mr Huu Thanh Le." The Applicant claimed that the Tribunal "should not act on mere suspicion, nor should its decision be founded on irrelevant considerations".
Counsel for the First Respondent conceded that although the Applicant had referred to failure to apply the appropriate criteria "as at the date of application", that this was meant to be "at the time of the decision".
Submissions
At the outset, counsel for the First Respondent dealt with the claimed error by the Tribunal in its alleged reference to the Applicant having four siblings in Melbourne. It was submitted, and it is clearly correct, that paragraph 101 of the Tribunal's decision set out earlier in this judgment does not refer to the Applicant having four siblings resident in Melbourne but rather "the sponsor". The First Respondent submitted that that disposes of this new complaint not specifically referred to in the application. I agree with that submission.
The remaining claims arising from the Application set out earlier in this judgment were then referred to by counsel for the First Respondent. It was submitted that the Tribunal had made its own decision concerning the spouse relationship, and had not relied upon the delegate's decision. So much was evident, it was submitted, from paragraph 89 of the Tribunal's decision, where the Tribunal in part states:
“The Tribunal notes that in assessing whether or not the parties are in a genuine spousal relationship at the time of decision, the Tribunal must decide the case before it on the basis of its own merits. As a result, it would be inappropriate for the visa applicant's application to be determined on the basis of the genuineness or otherwise of his former spouse's spouse visa application and, accordingly, the Tribunal gives this evidence no weight in its assessment of the relevant issues.”
It was further noted that in paragraph 105 of its decision, the Tribunal made reference to the temporary separation which was of concern to the Applicant, and specifically stated:
“As regards the report of the departmental home visit and what happened at the subsequent departmental interview with the visa applicant, given that the visa applicant does not dispute that he was not living with the sponsor at the time of the departmental home visit and the fact that the Tribunal is required to assess whether the parties live together as spouses at the time of the decision, the Tribunal does not propose to consider it necessary to this evidence any particular weight in determining the issues before it.”(sic)
The First Respondent submitted that any concerns expressed by the Applicant in relation to the manner in which the Tribunal had regard to the delegate's decision and the temporary separation of the parties referred to by the Applicant does not contain an error. The passages referred to effectively deal with the issue concerning reference to the delegate's decision and the temporary separation.
The First Respondent then submitted in relation to the question of procedural fairness, that although the Tribunal referred to the relationship between the Applicant and his ex-wife and then her subsequent relationship, it ultimately did not give that evidence any weight in its assessment of the relevant issues. That information, it was submitted, was not information which attracts the operation of s.359A of the Act, as it was not the reason or part of the reason for the decision. Alternatively, the First Respondent relied upon the exception in s.357A of the Act, on the grounds that it was information that the Applicant gave for the purpose of the Tribunal hearing.
After having had the opportunity to read the detailed submissions of the First Respondent, which recited the Tribunal's findings in relation to the relevant criteria, and considering the First Respondent's oral submissions, the Applicant did not seek to make any further submissions.
Reasoning
In my view, the First Respondent's submissions are correct. I cannot see any jurisdictional error arising out of the manner in which the Tribunal conducted its very detailed and thorough examination of the claims and evidence presented by the Applicant.
The Tribunal properly considered the relevant criteria and the circumstances of the relationship between the Applicant and the sponsor pursuant to Regulation 1.15A(3) of the Regulations.
As indicated earlier in this decision, I do not see any error in the reference by the Tribunal to "four siblings", and accept that the clear meaning of the extract of the Tribunal's decision referred to earlier in this judgment does not in any way suggest the Applicant had four siblings in Melbourne, but rather is a reference to the Applicant's sponsor.
There is nothing in the material which would suggest that the Tribunal has acted in bad faith. On the contrary, a proper reading of the Tribunal's decision, together with its extremely detailed s.359A correspondence, demonstrates the Tribunal has undertaken its task in a diligent and appropriate manner. It has done so free of any jurisdictional error.
Throughout its findings, the Tribunal has assessed all the relevant evidence and has not at any stage taken into account irrelevant matters. It has made clear that its task is to assess the evidence before it and not to rely upon earlier delegates' decisions or reasoning. The Tribunal has then embarked upon its task, in my view, in a manner which is entirely appropriate and free of error.
I otherwise accept the submissions made for and on behalf of the First Respondent that no error arises from any of the grounds claimed by the Applicant, and accordingly the application should be dismissed with costs.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 30 January 2007
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