Tran v Minister for Immigration and Anor

[2020] FCCA 1480

FEDERAL CIRCUIT COURT OF AUSTRALIA

TRAN v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 1480

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a partner visa – application of onshore criteria – whether compelling circumstances – whether the Tribunal acted unreasonably or gave proper consideration to the evidence – whether the Tribunal considered the sponsor’s infertility in allocating weight to a social worker’s report considered – no jurisdictional error.  

Legislation:

Migration Regulations 1994 (Cth)

Cases cited:

Applicant WAEE v Minister for Immigration [2003] FCAFC 184

BZZ19 v Minister for Immigration [2019] FCCA 3302

Applicant: DUC TRUNG TRAN

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

Second Respondent ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 998 of 2019

Judgment of: Judge Driver

Hearing date: 2 June 2020

Delivered at: Sydney

Delivered on: 2 June 2020

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondents: Mr T. Liu by telephone

Solicitors for the Respondents: Mills Oakley

ORDERS

1. The application filed on 18 April 2019 is dismissed

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, in the sum of $7,467 in accordance with rule 44.15(1) and item 3 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 998 of 2019

DUC TRUNG TRAN

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL SERVICES

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

Background

1. The applicant, Mr Tran, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal).  The decision was made on 28 March 2019.  The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant Mr Tran a temporary partner visa.  Background facts relating to this matter are set out in initial written submissions filed on behalf of the Minister on 4 November 2019.

2. Mr Tran is a male citizen of Vietnam who initially arrived in Australia as a dependent on his then wife’s student visa on 20 August 2011.[1] Mr Tran returned to Vietnam after one month and did not return to Australia until 5 July 2013 when he stayed for one week.[2]

   [1] Court Book (CB) 27, 297 (see [4] of the Tribunal decision)

   [2] CB 291 (see [4] of the Tribunal decision)

3. On 29 March 2014, Mr Tran returned to Australia as a holder of a student visa in his own right. The visa was cancelled by the Minister’s Department on 6 February 2017, and this decision was affirmed by the Tribunal on 8 October 2018.[3]

   [3] CB 291 (see [4]-[5] of the Tribunal decision)

4. On 5 March 2017, Mr Tran applied for a temporary partner visa on the basis of his relationship with the sponsor, Thu Ngoc Bui (sponsor) an Australian permanent resident.[4]

   [4] CB 1-14

5. At the time of the partner visa application, Mr Tran was not the holder of a substantive visa nor did he enter Australia as a holder of a subclass 995 or special purpose visa.[5] Pursuant to clause 820.211(d)(ii) of Schedule 2 to the Migration Regulations 1994 (Cth) (Migration Regulations), Mr Tran therefore needed to satisfy the Schedule 3 criteria 3001, 3003, and 3004, unless the Minister was satisfied that there was a compelling reason for not applying those criteria. Criteria 3004 relevantly required as follows:

   [5] CB 298 (see [51] of the Tribunal decision)

   3004 If the applicant:

   (a) ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or

   (b) entered Australia unlawfully on or after 1 September 1994 and has not subsequently been granted a substantive visa;

   the Minister is satisfied that:

   (c) the applicant is not a holder of a substantive visa because of factors beyond the applicant’s control; and

   …

   (f) either:

   (i) in the case of an application referred to in paragraph (a) – the applicant would have been entitled to be granted a visa of the class applied for if the applicant had applied for the visa on the day when the applicant last held a substantive or criminal justice visa; or

   (ii) in the case of an applicant referred to in paragraph (b) -  the applicant would have satisfied the criteria (other than any Schedule 3 criteria) for the grant of a visa of the class applied for on the day when the applicant last entered Australia unlawfully; and

   …

6. On 27 March 2017, the delegate invited Mr Tran to comment on whether he met criterion 3004 and whether there were any compelling circumstances to not apply that criterion.[6] Mr Tran was also invited to provide further evidence of his relationship with the sponsor. He did not provide a response to this invitation.

   [6] CB 43-47

7. On 28 July 2017, the delegate refused to grant Mr Tran a partner visa, finding that he did not meet criterion 3004 of Schedule 3 to the Migration Regulations and there were no compelling circumstances to justify waiving the Schedule requirements.[7]

   [7] CB 53-58

8. On 2 August 2017, Mr Tran sought review of the delegate’s decision with the Tribunal.[8]

   [8] CB 81-93

9. On 22 March 2019, Mr Tran provided the Tribunal with a social worker report dated 22 March 2019, medical evidence in relation to the sponsor, evidence in relation to the parties’ domestic travel, ASIC registration of their business, joint bank statements and photographs.[9]

   [9] CB 131-266

10. On 27 March 2019 Mr Tran appeared before the Tribunal. The sponsor and the sponsor’s mother (Mr Tran’s mother-in-law) also provided evidence.[10]

    [10] CB 281

11. On 28 March 2019, the Tribunal affirmed the decision under review.[11]

The decision of the Tribunal

[11] CB 290-304

Credibility

1. The Tribunal considered that neither Mr Tran nor the sponsor presented as credible witnesses and the most obvious issue was their credibility in relation to the claim they had been living together as a de facto couple since March 2016.[12] The Tribunal considered that the basis of making this claim appeared to be so that Mr Tran could argue that on the day of his last substantive visa, he would have been entitled to the grant of this visa and further that it would indicate the parties had been in a longstanding relationship.[13]

   [12] CB 296, [42]

   [13] CB 297, [43]

2. The Tribunal noted that there was no claim in the application that the parties were living together since March 2016 and no evidence that the parties were living together before their marriage.[14] The Tribunal noted that during the hearing it had put to Mr Tran several pieces of information which indicated he was living in Melbourne until at least February 2017 and he was not living with the sponsor from March 2016.[15] The Tribunal found that the parties had deliberately provided false information to the Tribunal in order to support their application and that they had only commenced living together immediately before their marriage.[16]

   [14] CB 297, [44]

   [15] CB 297, [45]

   [16] CB 297, [47]

Schedule 3 criteria

1. The Tribunal considered whether Mr Tran met criterion 3004 of Schedule 3 to the Migration Regulations and noted that Mr Tran had claimed that the cancellation of his student visa was due to factors beyond his control, namely to have been suffering from depression due to the breakdown of his marriage. The Tribunal did not accept this claim.[17] The Tribunal noted Mr Tran’s relationship with his former wife broke down in 2011, being five years prior to the applicant ceasing any study in Australia and that Mr Tran continued to study for two years after being granted his own student visa in 2014.[18]

   [17] CB 298, [53]

   [18] CB 298, [54]-[55]

2. The Tribunal did not accept that the fact Mr Tran was awaiting the outcome of an application for review of the Department’s decision to cancel his student visa, was a matter beyond his control[19] and concluded that it was not satisfied that Mr Tran was not the holder of a substantive visa because of factors beyond his control. The Tribunal therefore found Mr Tran did not meet criterion 3004(c) of Schedule 3 to the Migration Regulations.[20] Having not accepted that the parties were in a de facto relationship from March 2016 and noting there was limited information in respect of the circumstances of the relationship, the Tribunal additionally found that Mr Tran did not meet the criterion 3004(f).[21]

   [19] CB 299, [58]

   [20] CB 299, [59]

   [21] CB 299, [60]-[62]

Compelling circumstances

1. The Tribunal was not satisfied that any of the circumstances Mr Tran would face if required to return to Vietnam provided a compelling reason for not applying the Schedule 3 criteria.[22] The Tribunal noted that it had not accepted at face value the claims made by the parties in respect of their relationship for the purposes of the decision.[23]

   [22] CB 300, [68]

   [23] CB 300, [69]

2. The Tribunal considered the evidence provided in respect of Mr Tran and the sponsor’s mental health issues, including the report of the social worker. However it gave the report little weight and in light of the support the sponsor could receive from her family in Australia, it was not satisfied that any of the mental health issues claimed provided a compelling reason for not applying the Schedule 3 criteria.[24] The Tribunal considered the claim about the sponsor’s infertility but noted that this was an issue which was an unfortunate reality for many couples and was not satisfied this was a compelling reason for not applying the Schedule 3 criteria.[25]

   [24] CB 300-301, [72]-[76]

   [25] CB 301, [77]

3. The Tribunal noted the parties had started a business venture together but found that Mr Tran’s involvement was limited and that there was no evidence to suggest that the business was unable to run successfully whilst the sponsor was overseas or without significant involvement from Mr Tran.[26] The Tribunal was not satisfied that the fact the parties had started a business was a compelling reason for not applying the Schedule 3 criteria.

   [26] CB 301, [78]-[79]

4. The Tribunal considered the nature of the relationship and accepted that the parties may face some emotional and financial difficulties if the applicant was to return to Vietnam to lodge an offshore partner visa application. Notwithstanding this, the Tribunal found this would be no different to any other couple who would lodge a visa application offshore, and in considering all of the aspects of the relationship, it was not satisfied that the relationship in and of itself was a compelling reason to not apply the Schedule 3 criteria.[27] The Tribunal noted that Mr Tran claimed the sponsor’s mother was dependent on him but found there was little to support this claim.[28]

   [27] CB 302, [80]

   [28] CB 302, [81]

5. Having considered all of the circumstances individually and cumulatively, the Tribunal was not satisfied that any of the circumstances provided compelling reasons for not applying the Schedule 3 criteria and accordingly found that the applicant did not meet clause 820.211(d)(ii) of Schedule 2 of the Migration Regulations.[29]

   [29] CB 302, [82]-[83]

6. These proceedings began with a show cause application filed on 24 April 2019.  Mr Tran continues to rely upon that application.  The three grounds in it are:

   1. The Tribunal was unreasonable in making assumptions that business which the couple started would not survive in the Applicant’s absence.

   2. The Tribunal erred in failing to give proper consideration to the social worker report which states that the Sponsor suffers from major depression.

   3. The Tribunal was so unreasonable in its reasoning as it did not consider the materials before it. In particular, the Sponsor’s secondary infertility and erroneously made a conclusion that not able to conceive a child, is not a compelling reason.

7. The matter came before me for a show cause hearing on 13 November 2019. I received into evidence at that time Mr Tran’s affidavit filed with his application and the court book filed on 11 July 2019. At that time, I made a show cause order under rule 44.12(1)(b) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules).

8. I identified as an issue whether the Tribunal erred at [73] of its reasons.  This related to the Tribunal’s consideration of the impact of the sponsor’s infertility in allocating weight to the report of the social worker, Mr Chuong.  The matter came before me again today for a final hearing.  The Minister had filed additional written submissions addressing the issue in the show cause order.  I invited oral submissions from Mr Tran.  He reiterated the three grounds in his judicial review application. 

9. Mr Tran continues to believe that the Tribunal acted unreasonably in assessing his importance in the sponsor’s business.  Mr Tran further submits that the Tribunal gave improper or inadequate consideration to the social worker’s report as set out at [76] of its reasons.  Mr Tran also took me to the social worker’s report at CB 137 and submitted that both he and the sponsor suffer from depression.  Mr Tran also submits that the Tribunal failed to consider, or consider properly, the issue of the sponsor’s infertility.

10. I prefer the submissions of the Minister on the show cause issue.  First, I accept that at [16] of its reasons the Tribunal accurately summarised the issues raised in the social worker’s report.  Secondly, I accept from reading the report itself that the issue of infertility was bound up in a broader issue of stress and depression.  This is evident in the discussion in the report reproduced at CB 136, 137, 138, 139 and 140. The Tribunal’s reasons at [73], which I set out below, must be read in context.  In particular, the Tribunal’s reasons at [73] must be read with its reasons at [74] to [77]. 

    [73] The Tribunal places little weight on the report of Mr Chuong. He has accepted uncritically the information provided by the applicant and the sponsor, including the claim that the parties “started to live together as a couple from March 2016 and have never been living apart” (sic). Neither the applicant nor the sponsor has ever sought any treatment for any depression, anxiety or stress, despite receiving the report from Mr Chuong, no appointments have been made for any further counselling or other assistance.

    [74] Throughout her time in Australia, the sponsor has been able to work full-time and has been able to care for herself. There is no information that any depression or anxiety claimed to have been suffered by her prevented her from working or participating in society. The sponsor’s mother and sister live in Australia. Her mother currently lives with her. The sponsor has a good relationship with her mother and sister. There is nothing to indicate that if the sponsor was suffering from depression or anxiety that she would not obtain the appropriate support from her mother and sister.

    [75] When the applicant applied for his Student visa in 2014 he had already been separated from his wife for over two years. The applicant has never received any treatment or counselling in respect of any depression or any other mental health issues arising from the end of his relationship with his former wife. He never took any action to contact the Department at any time as a result of any incapacity he may have suffered as a result of the breakdown of his relationship with his former wife or for any other reason.

    [76] The Tribunal is not satisfied that any of the mental health issues claimed by the applicant or the sponsor provide a compelling reason for not applying the Schedule 3 criteria.

    [77] The sponsor has been diagnosed as suffering secondary infertility. The treatment that she received for this condition in Australia has not been successful. She has been willing to return to Vietnam by herself to use “Eastern medication” to help her become fertile. The unfortunate reality for many couples is that they are not able to conceive a child. It is something those couples must deal with and possibly look at alternative choices. There is no information that the sponsor and the applicant have been taking steps to attempt IVF or any other alternative means to have a child. The Tribunal is not satisfied that the fact the sponsor is not able to conceive a child provides a compelling reason for not applying the Schedule 3 criteria.

1. Viewed in context, I am persuaded that the Tribunal did not overlook the issue of infertility in dealing with the credibility of Mr Tran and the report of the social worker.  It is, perhaps, unfortunate that in its second sentence at [73] the Tribunal’s reasons may be interpreted as criticising the social worker.  It was not the function of the social worker to analyse the truth or falsity of the history recounted to him.  The social worker properly took at face value what he had been told. 

2. However, the Tribunal was entitled to allocate weight to the report, taking into account that the social worker was reliant on what he had been told.  I otherwise agree with the Minister’s submissions concerning the social worker’s report. 

3. The report of Mr Chuong dated 22 March 2019 appears at CB 133 to 141. The Tribunal at [15] of its reasons referred to Mr Chuong’s report as a document provided by Mr Tran to it. At [16], the Tribunal provided an accurate summary of the report. At [73], the Tribunal set out the reasons for it placing “little weight on the report of Mr Chuong”.

4. The weight to be given to particular evidence is generally a matter for the Tribunal.[30] The Tribunal in this case made its findings on the basis of material probative to its assessment of the weight to give to the report. At [42] and [47] of its reasons, the Tribunal explained the basis for its criticism (at [73]) of Mr Chuong’s report. In particular, the Tribunal found that Mr Tran and the sponsor lived together from March 2016 undermined the credibility of the report. The Tribunal was entitled to attribute less weight to the report on this basis.

   [30] BZZ19 v Minister for Immigration [2019] FCCA 3302, [30] citing Shi v Migration Agents Registration Authority [2008] HCA 31; (2009) 235 CLR 266, [151]

5. Moreover, a fair reading of the Tribunal’s reasons makes clear that the Tribunal considered all the relevant matters raised in Mr Chuong’s report when assigning it little weight, including the issue of the visa sponsor’s infertility. The Tribunal’s reasons indicate that it was aware of the references to infertility in Mr Chuong’s report[31] and it considered that issue when assessing the report. This is evident from the Tribunal’s references at [73] to “any depression, anxiety or stress” and “any depression or anxiety claimed to have been suffered by the [the sponsor]” at [74]. The Tribunal’s assessment aligns with the way the report detailed the visa sponsor’s asserted mental illness.[32] The Tribunal was simply not satisfied that these factors gave Mr Chuong’s report greater weight or constituted “compelling reasons” for the reasons it gave at [73], including its finding that “no appointments have been made for any further counselling or other assistance.” In assigning weight to the report, the Tribunal was permitted to reason in this way.

   [31] See [16] of its reasons

   [32] See, for example, CB 136 and CB 139

6. This is not a case where the Tribunal failed to deal with a relevant issue arising from Mr Tran’s evidence. Given the comprehensive nature of the Tribunal’s reasons and the fact that it expressly averred to and accurately summarised the key matters in Mr Chuong’s report, an inference to the contrary is “not too readily to be drawn”.[33]

   [33] Applicant WAEE v Minister for Immigration [2003] FCAFC 184; (2003) 256 FCR 593

7. To the extent that the grounds in the application have any continuing relevance, I agree with the Minister’s original submissions.

Ground 1

1. Ground 1 alleges that it was unreasonable for the Tribunal to find that the couple’s business would not survive in Mr Tran’s absence. Mr Tran’s written submissions do not go further than merely repeating the ground. No such finding was made by the Tribunal and accordingly, on a factual level, this ground must fail.

1. To the extent that the applicant complains that the Tribunal was unreasonable in finding that the business would survive in Mr Tran’s absence, this finding was open to it on the evidence before it.  As noted by the Tribunal at [78], Mr Tran’s evidence was that he did not draw an income from the business and his only involvement was driving employees to and from work and assisting the sponsor with cleaning the business. The Tribunal concluded that as the sponsor had been the primary worker in the business, there appeared to be no reason the business would not be able to continue to operate profitably without Mr Tran. The Tribunal further concluded there was no information before it that the business had been unable to operate successfully while the sponsor had been in Vietnam nor without any significant involvement from Mr Tran.[34] The Tribunal was not satisfied that the fact that the parties had started a business together which was operated by the sponsor provided a compelling reason for not applying the Schedule 3 criteria and these findings were open to the Tribunal on the evidence.

   [34] CB 301, [79]

Ground 2

1. Ground 2 alleges that the Tribunal failed to give “proper consideration” to the social worker report which stated that the sponsor suffered from major depression.  Mr Tran’s submissions repeat this allegation, contend that the report stated that the sponsor suffered from “major depression disorder” and that the Tribunal’s findings were unreasonable.

2. The Tribunal considered this report at [16] and noted the fact that Mr Tran and the sponsor had provided, what the Tribunal considered, false information that undermined the validity of this report.[35] The Tribunal also considered the social worker report at [72] and ultimately placed little weight on this evidence[36] as the social worker appeared to have uncritically accepted the information provided by the parties which the Tribunal found to not be credible. The ground does not reveal any error by the Tribunal. The findings made were open on the evidence and are not legally unreasonable.

   [35] CB 297, [47]

   [36] CB 301, [73]

Ground 3

1. Ground 3 complains that the Tribunal was unreasonable as it did not consider the material before it. It further claims that the Tribunal “dismissed” the sponsor’s secondary infertility and erroneously concluded that this did not amount to a compelling reason. The latter allegation is repeated in Mr Tran’s submissions in the form of an allegation that the Tribunal’s conclusions were unreasonable.

2. In respect of the allegation that the Tribunal did not consider the material before it, there is no material that the Tribunal overlooked. The Tribunal clearly considered the sponsor’s medical issues at [77]. The Tribunal noted that the inability to conceive children was an unfortunate reality for many couples which they were required to deal with and possibly consider other avenues. The Tribunal noted there was no evidence that the parties had been taking steps to attempt IVF or another alternative means to have a child and concluded this was not a compelling reason for not applying the Schedule 3 criteria. There is nothing in the Tribunal’s reasoning to suggest that it “dismissed” the sponsor’s secondary infertility and Mr Tran’s complaint that the Tribunal made an erroneous conclusion is nothing more than Mr Tran expressing his disagreement with the Tribunal’s conclusions.

3. I conclude that Mr Tran is unable to demonstrate that the decision of the Tribunal is affected by any jurisdictional error.  The decision is therefore a privative clause decision and the application must be dismissed.  I will so order. 

4. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale.  Mr Tran did not wish to be heard on costs. 

5. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, in the sum of $7,467 in accordance with rule 44.15(1) and item 3 of Division 1 of Part 2 to Schedule 1 of the Federal Circuit Court Rules 2001 (Cth).

I certify that the preceding forty one (41) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date: 5 June 2020